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18-776, �. �, , �, �, ! �, � 1 � „ .. 1 • �• � ��' • ,1 '''1 1 � •' �I' • 1 . � � � � ! . � � . � � . � , , . ��, :'! �'I 1 � � . � � �. �.��., ,� 1 � � 1 i' ii � .� . �..� 1 •. I'� i : I,. �,.� 1 . � . � . 1 � # : ,, ,, ,�• � �I � . . .° � �, �' � � tI i' �. ., � ., . . . �; � . � . . � � . � . 1! 1 ' 1: � ,# 1 :' i 1� I � '; I . � � � � � � , , � . . , � �,� � � . . � . . , ; � ; . . � � � 1 . � '1 � � 1 'I � '''• 1 ��. . �., � � . , � . ;�; � . . � 1 ' • ! 1 . . 1: , � '1 � . 1 ' � 1' . . � ,� � , . ,� � . ; . 1 �1 . I �'' � •'1 '', . �� , � '' � ' I ' # . � . � �, . = 1, � "� . � . � � ' • ' 1 ! � 1 i 1 ' !'; 1 ' ' , I ,' • •'' '' : ••' ., �� , � � ,� � , �; . WHEREAS, City of Denton ("Denton") is a Texas home-rule municipal corporation governed by the constitution and laws of the State of Texas; and WHEREAS, I7enton's Materials Management department issued a Request for Proposals (RFP 6496) on June 22, 2017 for the submittal of proposals for solar and wind energy in amounts up to 300 MW to be operational by I7ecember 31, 2020; and WHEREAS, a total of 41 entities submitted proposals for 89 different projects for solar and wind energy by the October 4, 2017 deadline; and WHEItEAS, a multi-disciplinary team of Denton employees, supplemented by an outside consultant, evaluated the submitted proposals in accordance with the terms of the Request for Proposals and determined that the Bluebell Solar II, LLC project was the highest rated; and WHEREAS, a Power Purchase Agreement ("PPA") between Denton and Bluebell Solar II, LLC, a I7elaware limited liability company ("Bluebell Solar II") was prepared ta document terms of the proposed solar power purchase transaction ("Transaction"); and WHEREAS, Bluebell Solar II, LLC, ("Bluebell Solar II99) is a I7elaware limited liability campany and Nextera Energy Capital Holdings, Inc, (66Nextera Holdings"), is a Delaware corporation and both are gaverned by the constitution and laws of the State of Delaware; and WHEREAS, on May 7, 2018, the PPA between Denton and Bluebell Salar II was discussed, considered, and deliberated by Denton's Public Utilities Board (66PUB99) and the PUB recommended to Denton's City Council, by a vote of �(5/x ) in favor and �(zer-q) opposed that it approve the PPA; and WHEREAS, the City Council finds the PPA, including its attached Exhibits A through J, as redacted, should be excepted from public disclosure, as permitted by the provisions of §552.133 of the Texas Government Code, as documents that are reasonably related to a competitive electric matter, the disclosure of which documents would provide an advantage to the competitors or prospective competitors of Dentan's municipal electric operation; and WHEREAS, the City Council finds that the PPA allows Denton to purchase from Bluebell Solar II, 100 MW of solar-generated electricity for a contractual term of twenty (15) years from the Project's Commercial Operation Date; and that the PPA involves I7enton's acquisition of reliable, cost-effective replacement solar power and energy from Bluebell Solar II with no detriment to the ratepayers of Denton; and WHEREAS, the City Council finds that a diversified portfolio of energy resources from multiple sources, including wind power, solar power, natural gas, coal, and landfill gas, is prudent and in the welfare of Denton's electric ratepayers and public; and WHEREAS, the City Council finds that the PPA will not impair the ability af Denton to comply with the provisions of any of its utility revenue bonds, as amended, which arc issued and outstanding; and WHEREAS, the City Council finds that §252.022(a)(15) of the Texas Government Code is applicable to the PPA and that the competitive bidding law is not applicable to the purchase by Denton of electricity; and WHEREAS, Denton desires to enter into such other arrangements in support of the PPA with Bluebell Solar II and Nextera Energy Holdings which arc incident and related to the PPA, including, but not limited to, guaranties and letters of credit, and to take such additional actions as the City Manager, or his designee, shall determine to be necessary and advisable to consummate and effectuate the PPA; NOW, THEREFORE, THE COUNCTL OF THE CITY OF I7ENTON HEREBY ORDAINS: SECTION 1. The recitations and iindings contained in the above Preamble are incorporated herein and are considered to be a part of this Ordinance. SECTION 2. The City Council, approves and authorizes the Mayor and City Secretary, to execute and attest respectively, the PPA between Denton and Bluebell Solar II under the terms and conditions set forth in Exhibit 66Ay99 attendant with Exhibits A through J attached thereto, and made a part hereof. SECTION 3. The City Council, as additianal security for Bluebell Solar II's performance under the PPA, approves and authorizes the City Manager and the City Secretary, and their respective designees, ta approve and accept irrevocable and non-transferable standby Letter(s) of Credit (66Letter(s)99) furnished to Denton by Bluebell Solar II and Ncxtera Energy Holdings, in accordance with the PPA, with said Letter(s) being drawn upon a commercial bank within the United States, on behalf of Denton, as additional credit protection, under the terms and conditions of, and being substantially in the form as set forth in, the PPA, with such amendments, changes and additians as the City Manager, or his designee, may approve. ��1'1��E� �. The City Council approves and authorizes the City Manager, or his designee, to take such additional actions as the City Manager, or his designee, determines to be necessary and advisable to continue to effectuate the purpose, terms and conditions of the PPA and further approves and authorizes the City Manager and City Secretary, and their respective designees, to execute and attest respectively, all other documents which are incident and related to these additional actions. SECTION 5. Immediately following the execution and delivery of the PPA, and the Guaranties and Lettcr(s) of Credit which are incident to such PPA, the City Secretary is directed to seal and maintain said documents in her custody and control, as documents excepted from public disclosure under the provisions of §552.133 of the Texas Government Code unless otherwise lawfully ordered to disclose said documents. ,�i �"�6�_lf��d ��, This ordinance and a copy of the Power Purchase Agreement, as redacted of Competitive Information, shall be available for public disclosure. The non-redacted Power Purchase Agreement shall not be available for public inspection and copying and will be sealed as provided for in the preceding section. SECTION 7. The expenditure of funds as provided for in this ordinance is hereby autharized. SECTION 8. This Ordinance shall become effective immediately upon its passage and approval. � 1'1��, a��c��C��a i�� v� I.lz� a�c�ci�d��cc� �+�. ��,� �a�� a��,��c.i�� and � � N � a��de bY _ ... ��"��.,�� ' � second�;�i 1�� `�"��.: ��.�'��`..�..�m. ..........ti...�.��.� ��....> the or�� ° � �d��.l ^��°��:��w'��d by the following vote � - ( �% . Mayor Chris Watts: Gerard Hudspeth, District 1: Keely G. Briggs, District 2: Don Duff, District 3: John Ryan, District 4: ��G� " ��"� �A��_ Dalton Gregory, At Large Place 5: � Q��i � �.. � ................................... �... Sara Bagheri, At Large Place 6: G�.f.J,�j � ................................ �,.....�. PASSED AND APPROVED this the �i"C day of ��"��" 2018. �.... � ��wl�l � ��.�. � � "� �� . � �,�� , �, �.....�... . ..... f:" °�I�� °1,e � , MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: _mm � .:��. � r� ��' �. � � � ��.�� APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY �,��,�,.� BY: ��°' „�� , ........� ..�.�. �� EXECUTION VERSION POWER PURCHASE AGREEMENT NT By and Between CITY OF DENTON, TEXAS ON, TEXAS TEXAS andandand BLUEBELL SOLAR II, LLC BLUEBELL SOLUEBELL dated as of ____________, 2018 This document and any attachments or exhibits thereto may contain information that is confidential, commercially-sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' TABLE OF CONTENTS ARTICLE 1 DEFINITIONS AND INTERPRETATION .......................................................................... 1 1.1Definitions. ................................................................................................................................. 1 1.2Interpretation. ........................................................................................................................... 16 ARTICLE 2 TERM................................................................................................................................... 17 2.1Term. .................................................................................................................................................. 17. ARTICLE 3 OBLIGATIONS AND DELIVERIES ................................................................................. 17........................ 3.1Product. .............................................................................................................................................................................. 17 3.2Purchase and Sale. ................................................................................................................................................................... 1818 3.3Contract Price. .................................................................................................................................................................................... ..... 1818 3.4Capacity Attributes. ............................................................................................................................................................................... ........... 181 3.5Performance Excuses. ............................................................................................................................................................................... ..... 18 3.6Buyer’s Failure to Accept Delivery of Product. ....................................................................... 19................................................................... 3.7Seller’s Failure to Deliver Product. .......................................................................................... 19.................................................................. ................. 3.8Offsets, Allowances and Environmental Attributes. ................................................................ 19............................................................................... 3.9Station Service. ................................................................................................................................................................................... ........ 20 3.10Transmission. ..................................................................................................................................................................................... ........ 20 3.11Scheduling. ....................................................................................................................................................................................... ........................ 21 3.12Sales for Resale. .......................................................................................................................................................................... 23 3.13Operating Procedures. .......................................................................................................................................................................... 23 3.14Standards of Care. ................................................................................................................................................................................ ... 23 3.15Curtailment. ...................................................................................................................................................................................... .............. 23 3.16Outage Notification. .............................................................................................................................................................................. ................... 25 3.17Operations Logs and Access Rights. ........................................................................................ 25s Rights. ...............................ghts. ................... 3.18Availability Forecasting. ......................................................................................................................................................................... ....... 26 3.19Weather Station. .................................................................................................................................................................................. ........ 27 3.20Change in Law. .................................................................................................................................................................................... ......... 27 3.21Contract Quantity and Guaranteed Energy Production. ........................................................... 28ty and Guaranteed Energy Prd Guaranteed En ARTICLE 4 PROJECT DESIGN AND CONSTRUCTION.................................................................... 30DESIGN AND CONSTRUCGN AND CONS 4.1Project Development. ..........................................................................................................velopment. ...........................lopment. ..................... 30 4.2Guaranteed Commercial Operation. ......................................................................................... 31eed Commercial Operation. Commercial Oper 4.3Cure Period and Delay Damages. ............................................................................................. 32Period and Delay Damages.and Delay Dam 4.4COD Conditions. ...............................................................................................................OD Conditions. ....................tions. ................. 32 ARTICLE 5 METERING AND MEASUREMENT ................................................................................ 33E 5 METERING AND MEAETERING AND 5.1Project Metering. .............................................................................................................Project MeterinProject Metering. .................... 33 5.222Metering System. ..............................................................................................................Metering SysteMetering System. .............. 33 5.35.35.3Inspection and Adjustment. ....................................................................................................Inspection anInspection and Adj.. 34 ARTICLE 6 EARLY TERMINATION....................................................................................................RTICLE 6 EARLY TERRTICLE 6 EARLY 34 6.1Early Termination. ............................................................................................................Early Termin........ 34 ARTICLE 7 EVENTS OF DEFAULT ...................................................................................................LE 7 EVENTLE 7 .. 36 7.1Events of Default. ............................................................................................................EEvents......... 36 7.2Remedies; Declaration of Early Termination Date. ................................................................. 37 7.3Termination Payment. .............................................................................................................. 38 7.4Notice of Payment of Termination Payment. ........................................................................... 38 7.5Disputes with Respect to Termination Payment. ..................................................................... 38 -i- Exhibit 'A' 7.6Rights and Remedies Are Cumulative. .................................................................................... 39 7.7Mitigation. ................................................................................................................................ 39 7.8Project Investor Cure Periods. .................................................................................................. 39 ARTICLE 8 PAYMENT .......................................................................................................................... 39 8.1Billing and Payment. .................................................................................................................. 39 8.2Disputes and Adjustments of Invoices. .................................................................................... 40.............. 8.3Netting of Payments. ......................................................................................................................................... 40 ARTICLE 9 INSURANCE, CREDIT AND COLLATERAL REQUIREMENTS ................................. 40............................................4 9.1Insurance. ............................................................................................................................................................................... 4040 9.2Grant of Security Interest. ........................................................................................................................................................................ 4040 9.3Seller Financial Statements. ....................................................................................................................................................................... ..... 414 9.4Performance Assurance. ............................................................................................................................................................................. .... 41 ARTICLE 10 REPRESENTATIONS, WARRANTIES AND COVENANTS ....................................... 43NANTS .......................................................... 10.1Representations and Warranties. .............................................................................................. .................................................................... .....................43 10.2General Covenants. ................................................................................................................................................................................ ................ 44 10.3Seller Covenants. ................................................................................................................................................................................. ....... 45 10.4Buyer’s Covenants. .................................................................................................................. 45........................................................... .. ARTICLE 11 TITLE, RISK OF LOSS, INDEMNITIES ......................................................................... 45S ............................................................................. .. 11.1Title and Risk of Loss. ................................................................................................................................................................ 45 11.2Indemnities by Seller. ........................................................................................................................................................................... 45 11.3Indemnities by Buyer. ............................................................................................................................................................................. . 46 ARTICLE 12 GOVERNMENTAL CHARGES ....................................................................................... 46ES ................................................................ 12.1Cooperation. ...................................................................................................................................................................................... ....................... 46 12.2Governmental Charges. ............................................................................................................................................................................. ....... 46 ARTICLE 13 CONFIDENTIAL INFORMATION ................................................................................. 47FORMATION ....................MATION ........... 13.1Confidential Information. .....................................................................................................on. ................................................................ .. 47 13.2Texas Public Information Act. .................................................................................................mation Act. ..........................Act. .................. 49 ARTICLE 14 ASSIGNMENT .........................................................................................................NT ..................................................................... ... 49 14.1Successors and Assigns. .......................................................................................................nd Assigns. ...........................d Assigns. .................. ..... 49 14.2Assignment by Seller. .........................................................................................................nt by Seller. ...........................by Seller. ...................... 50 14.3Assignment by Buyer. ..........................................................................................................ment by Buyer. .....................by Buyer. ............... 51 14.4Collateral Assignment. ........................................................................................................ateral Assignment. ...............ssignment. ............ 52 ARTICLE 15 FORCE MAJEURE ......................................................................................................5 FORCE MAJEURE .........MAJEURE..... 53 15.1Force Majeure Events. .........................................................................................................Force Majeure Events. .......e Majeure Events..... 53 ARTICLE 16 LIMITATIONS ON LIABILITY ...................................................................................... 54LE 16 LIMITATIONS ONLE 16 LIMITATIO 16.16.16.1Disclaimer of Warranties. .....................................................................................................Disclaimer of WDisclaimer of Warran.... 54 16.216.216.2Limitations on Liability. .....................................................................................................Limitations oLimitations on Lia...... 54 ARTICLE 17 DISPUTE RESOLUTION .................................................................................................RTICLE 17 DISPUTE RRTICLE 17 DISPU 55 17.111Intent of the Parties. ........................................................................................................Intent of the .......... 55 17.2Management Negotiations. ......................................................................................................MaManagem. 55 17.3Specific Performance and Injunctive Relief. ............................................................................ 56SSpecifi ARTICLE 18 NOTICES ............................................................................................................N............... 56 18.1Notices. ..................................................................................................................................... 56 ARTICLE 19 MISCELLANEOUS .......................................................................................................... 57 19.1Effectiveness of Agreement; Survival. ..................................................................................... 57 ii Exhibit 'A' 19.2Audits. ...................................................................................................................................... 58 19.3Amendments. ............................................................................................................................ 58 19.4Waivers. .................................................................................................................................... 58 19.5Severability. .............................................................................................................................. 58 19.6Standard of Review. ................................................................................................................. 59 19.7Governing Law. ...................................................................................................................................... 59 19.8Waiver of Trial by Jury. .................................................................................................................................... 59 19.9Attorneys’ Fees. ........................................................................................................................ 59......................................... 19.10No Third-Party Beneficiaries. .......................................................................................................................................................... 6060 19.11No Agency. ....................................................................................................................................................................................... ........ 6060 19.12Cooperation. ..................................................................................................................................................................................... ................ 606 19.13Further Assurances. .............................................................................................................................................................................. .......... 60 19.14Captions; Construction. .......................................................................................................................................................................... ......... 60 19.15Entire Agreement. ................................................................................................................................................................................ ............................. 61 19.16Forward Contract. ................................................................................................................................................................................ ................... 61 19.17Counterparts. .................................................................................................................................................................................... ........... 61 Exhibit A Contract Price Exhibit B Description of Project Exhibit C Description of Delivery Point and One-Line Diagram t and One-Line Diagram One-Line Diagra Exhibit D GEP Damages Calculation Exhibit E Form of Guaranty Exhibit F Form of Letter of Credit edit Exhibit G Buyer and Seller Insurance Requirements Insurance Requirements ance Requireme Exhibit H Commercial Operation Certification peration Certification n Certification Exhibit I Project Investor Notice Information estor Notice Information Notice Informati Exhibit J Operating Procedures Criteria g Procedures Criteria g Procedures Criteria iii Exhibit 'A' POWER PURCHASE AGREEMENT This POWER PURCHASE AGREEMENT (this “Agreement”) is made this ___ day of ______, 2018 (the “Effective Date”),by and between BLUEBELL SOLAR II, LLC, a Delaware limited liability company (“Seller”) and the CITY OF DENTON, TEXAS, a Texas home-rule om municipal corporation, acting operationally through its Denton Municipal Electric Department, Departmetm with its principal place of business at 215 E. McKinney Street, Denton, Texas 76201 6201 (“Buyer”)(“Buyer”)uyer and. Buyer and Seller are each individually referred to herein as a “Party” and collectively as the collectively as the ively as th “Parties”. W I T N E S S E T H: WHEREAS, Seller intends to develop a 100 MW photovoltaic solar energy MW photovoltaic solar eneW photovoltaic solar generation facility on a site located in Sterling County, Texas (the “(the “the “ProjectPrProjectoject”)”)”); and ; and nd WHEREAS, Seller desires to sell, and Buyer desires to purchase and receive, the uyer desires to purchase anddesires to purc Net Output (as defined herein) of the Project, on the terms and conditions set forth herein. erms and conditions set forthconditions se NOW, THEREFORE, the Parties heretes hereto, for good and sufreto, foo, for good and sufficient consideration, the receipt of which is hereby acknowledged, inted, intending to be legally bonding to be legally bound, do hereby agree as ding to be follows: ARTICLE 1 ARTICLE 1 RTICLE 1 DEFINITIONS AND INTERPRETATION TIONS AND INTERPREONS AND INTE 1.1Definitions. “AC”means alternating current. ternating current. ing current “Adjustment Period”ent Period”nt Period”has the meaning set forth in Section 5.3.has the mhas the meaning “Affiliate”ffiliate”means, with respect to any Person, any entity controlled, directly or indirectly, means, with resmeans, with respect by such Person, any entity that controls, direy such Person, any entity thh Person, any enctly or indirectly, such Person or any entity directly or indirectly under common control directly or indirectly undectly or indirectlywith such Person. For the purposes of this definition, (a) definition, (a) definition, (a) “control” (including, with correlative“control” meanings, the terms “controlled by” and “under common control with”), as used with rand “under coand “under commoespect to any Person, means the possession, directly or indirectly, of the powerpossession,possession, direct to direct or cause the direction of the management, operations, or policies of such Person, whether through the ownership of managemmanagement, o voting securities or by contract or otherwise; and (b) NextEra Operating Partners, LP, voting secu NextEra Energy Partners, LP, and their reNNextEra spective subsidiaries, are deemed to be Affiliates of Seller. AAffilia This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 1 Exhibit 'A' “Agreement”has the meaning set forth in the first paragraph of this Agreement. “Applicable Law” means, with respect to any Person or the Project, all laws, statutes, codes, acts, treaties, ordinances, orders, judgments, writs, decrees, injunctions, rules, regulations, Governmental Approvals, directives and requirements of all regulatory and other Governmental Authorities, in each case applicable to or binding upon such Person ch P or the Project (as the case may be). “Balancing Authority” means the responsible entity that integrates resource plans ahead ource plans ahead plans ahea of time, maintains load interchange-generation balance within a Balancing Authority Balancing Authority cing Authority Area, and supports interconnection frequency in real time. “Balancing Authority Area” is the collection of generation, transmission, and loads ion, transmission, and loadransmission, and within the metered boundaries of the Balancing Authority. The Balancing Authority rity. The Balancing Authoty. The Balancing Au maintains load resource balance within this area. “Bankrupt” means, with respect to a Party, suchch Party (i) files a petition Party (i) files a petition or otherwise arty (i) files a commences, authorizes or acquiesces in the commencement of a proceeding or cause of ommencement of a proceedement of a p action under any bankruptcy, insolvency, reorreorganization or similar leorganization or simganization or similar law, (ii) makes an assignment or any general arrangement for the benefit of creditors, (iii) otherwise nt for the benefit of credr the becomes bankrupt or insolvent (however evidenced), (iv) is generally unable to pay its ever evidenced), (iv) is genvidenced), debts as they fall due, (v) been adjudicated baudicated bankruptcy or has fankruptcy onkruptcy or has filed a petition or an answer seeking an arrangement with creditors, (vi) reditors, (vi) taken advantaors, (vi) taken adtaken advantage of any insolvency law or shall have submitted an answer admitting nswer admitting the materiwer admitting ththe material allegations of a petition in bankruptcy or insolvency proceeding, (vii) become subject to an order, judgment or y proceeding, (vii) become oceeding, (vii) b decree for relief, entered in an involuntarred in an involuntary case, an involuntary y case, without the application, approval or consent of such Party by any court of competent jurisdiction appointing a receiver, rty by any court of compy any court of trustee, assignee, custodian or liquidator, for a custodian or liquidator, forn or liquidsubstantial part of any of its assets and such order, judgment or decree shall continue dgment or decree shall continnt or decree shall unstayed and in effect for any period of one hundred eighty (180) consecutive Days, (viii) fahty (180) consecutive Dayshty (180) consecutive iled to remove an involuntary petition in bankruptcy filed against it within one hundred cy filed against it within onfiled against it witheighty (180) Days of the filing thereof, or (ix) become subject to an order for reliecome subject to an order e subject to an ef under the provisions of the United States Bankruptcy Act, 11 U.S.C. § 301. nkruptcy Act, 11 U.S.C. § 30y Act, 11 U.S “Business Day”“Business Day”usiness Day””” means any day except a Saturday, Sunday or a Federal Reserve Bank means ame holiday. A Business Day shall open at 8:00 a.holiday. A Buholiday. A Business Dm. Central Prevailing Time and close at 5:00 p.m. Central Prevailing Time. Notwith5:00 p.m. Ce5:00 p.m. Central standing the foregoing, for scheduling purposes only, the term “Business Day” shall have the meaning gipurposespurposes only, thven to that term from time to time by NERC on its website (http://www.nerc.com/~oc/offpeaks.html). time to time bmetot “Buyer”“B“Buyer”has the meaning set forth in the first paragraph of this Agreement. This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 2 Exhibit 'A' “Buyer Curtailment” means any curtailment of delivery of Net Output for reasons unrelated to a Planned Outage, Forced Outage, Force Majeure and/or aSystem Curtailment Order, including, for the avoidance of doubt, any reduction or cessation resulting from offers, bids, plans or schedules for the Project submitted by the QSE or the exercise of other rights with respect to the Project by the QSE. “Buyer Curtailment Order” means the instruction from Buyer to Seller to reduce r to redued generation from the Project by a specific amount of capacity for a specific duration of fic duration ofon time. A Buyer Curtailment Order shall be issued by Buyer in accordance with Operating ce with Operating h Operatin Procedures. “Buyer Curtailment Period” means the period of time during which Seller reduces ing which Seller reduces ch Seller reduces generation from the Project pursuant to a Buyer Curtailment Order. The Buyer tailment Order. The Buyeent Order. The Curtailment Period shall be inclusive of the time required for the Project to ramp down d for the Project to ramp dofor the Project to ramp and ramp up. “Buyer Excuses”has the meaning set forth in Section 3.5(b).ction 3.5(b)3.5. “Buyer’s Replacement Costs”has the meaning set forth in Section 3.7(a). ning set forth in Section ng set forth in Section3.7( “Capacity Attributes” means any current or future defined rent or future defined charafuture defcharacteristic, certificate, tag, credit, or ancillary service attribute, whether ute, whether general in naher general general in nature or specific as to the location or any other attribute of the Project inf the Project intended to vaProject intended tended to value any aspect of the capacity of the Project to produce Energy or ancillary services. rgy or ancillary services. gy or ancillary ser “Capacity Trade” means a transaction that transfers financial responsibility for capacity ns a transaction that transferansaction that tr between QSE’s, as set fortet forth in the ERCOT Protocols. h in the ERCOTh in the ERCOT Proto “Change inLaw”aw”” means any change in or addition to any Applicable Law or ERCOT means any change in omeans any chang Protocols adopted on or after dopted on or after the date ofdopted on or after the dthe date of this Agreement. “COD Conditions” Conditions”ditions”means all of the requirements that must be satisfied by Seller as a means means all of prerequisite to achieving the Commercial Operation Date as set forth in Section 4.4.requisite to achieving the Coe to achievin “Commercially Reasonable”“Commercially Reasonammercially Re or “Commercially Reasonable Efforts” means, with respect to any purchase, sale, decision, or respect to anyrespect to any purchaother action made, attempted or taken by a Party, such efforts as a reasonably prudent business would undertake for the protection of Party, such effParty, such efforts a its own interest under the conditions affectits owits own interest ing such purchase, sale, decision or other action, consistent with Prudent Operating Practices, including, without limitation, electric action, consisttionc system reliability and stability, state or otsystem reliher regulatory mandates relating to renewable energy portfolio requirements, the cost of suchenenergy p action (including whether such cost is reasonable), the amount of notice of the need toeaso take a particular action, the duration and type of purchase or sale or other action, and the commercial environment in which such This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 3 Exhibit 'A' purchase, sale, decision or other action occurs. “Commercially Reasonable” or “Commercially Reasonable Efforts” shall be reviewed and determined based upon the facts and circumstances known, or which could have been known with the exercise of reasonable efforts, at the time that a sale, purchase, or other action is taken and shall not be based upon a retroactive review of what would have been optimal at such time. “Commercial Operation” means that no less than the Project Capacity is operating and perating ang able to produce and deliver Delivered Energy to Buyer pursuant to the terms of this e terms of thisf th Agreement. “Commercial Operation Date” means the date on which (a) Commercial Operation has mmercial Operation has cial Operation has occurred; (b) Seller shall have delivered to Buyer the Delivery Term Security required ry Term Security required Security required under Section 9.4(a)(ii); (c) Seller has received all local, state and federal Governmental ate and federal Governmentad federal Govern Approvals and other approvals as may be required by Applicable Law for the by Applicable Law for by Applicable Law f construction, operation and maintenance of the Project. “Confidential Information”has the meaning set forth in Section 13.1.forth in Section h in13.113. “Contract Price”has the meaning set forth in Section 3.3.in Section n Se3.3. “Contract Quantity”has the meaning set forth in Section 3.21(a). g set forth in Section rth in Secti3.21(a) “Contract Year” means a calendar year commencing on January 1 of the year following dar year commencing on Jaear commencing the Commercial Operation Date of the Project. ate of the Project. te of the Project. “Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions espect to the Non-Defaultint to the Non-Def and other similar third party transaction costrd party transaction costs anty transaction cs and expenses reasonably incurred by such Party either in terminating any arrangeterminating any arrangemeng any ament pursuant to which it has hedged its obligations or entering into new arrangementsentering into new arrangeming into new arr which replace a Terminated Transaction; and all reasonable attorneys’ fees onable attorneys’ fees and eonable attorneys’ feesand expenses incurred by the Non-Defaulting Party in connection with such Terminated Transaction. n with such Terminated Trawith such Terminat “Credit Rating”redit Rating”tin” means, with respect to any entity, the means, with remeansissuer rating then assigned to such enentity’s unsecured, senior longtity’s unsecured, senior lo’s unsecured, sen-term debt obligations (not supported by third-party credit enhancements) or if such entity does not haenhancements) or if suchancements) or ifve a rating for its senior unsecured long-term debt, then the rating then assigned to suchdebt, then thedebt, then the rating entity as an issues rating by the Rating Agencies. Agencies. Agencies. “Cure Payment Period”“Cure PaymeCureP has the meaning set forth in Section 3.21(f). “Cure“C“CureddPerformance Measurement Period” has the meaning set forth in Section 3.21(d). 3.21( This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 4 Exhibit 'A' “Daily Delay Damages” means with an amount equal to Forty-One Thousand Six Hundred Sixty-Six Dollars ($41,666) per day. “Day Ahead Market” means the ERCOT Day Ahead Market or “DAM”. “Damage Payment” means an amount equal to the amount to be posted as Project s P Development Security pursuant to Section 9.4(a)(i). “Day” or “day”means a period of twenty-four (24) consecutive hours beginning at 00:00 eginning at 00:00 ng at 00:0 hours Central Prevailing Time on any calendar day and ending at 24:00 hours Central 24:00 hours Central 0 hours Central Prevailing Time on the same calendar day. “Day-Ahead Availability” Notice has the meaning set forth in Section 3.18(d).n Section tion3.18(d)3.18(d).. “Deemed Delivered Energy” means the amount of Energy (in MWh) that the Project Energy (in MWh) that the Energy (in MWh) that the would have generated and delivered to the Delivery Point, but did not generate or deliver Point, but did not generate oint, but did not gen to the Delivery Point during a Buyer Curtailment Period. The amount of Deemed ment Period. The amount Period. The Delivered Energy shall be determined using relevant Project availability, weather and relevant Project availabilitt Project ava other pertinent data for the period of time during the Buyer Curtailment Period. uring the Buyer Curtailmentring the Buyer Curtail “Defaulting Party”has the meaning set forth in Section 7.1(a). set forth in Section h in Sectio7.1(a). “Delivered Energy”means all of the Project’s Net of the Project’s Net he Project’s NetOutput delivered to Buyer at the Outp Delivery Point. “Delivery Point”means the ns the 345kV point of interconnection between the Seller’s 345kV point 345kV point of i Interconnection Facilities and the Transmissiilities and the Transmission and the Transmon Operator’s System at Divide Substation, as specified in the Interconnection Agreement and as further identified in Exhibit C. e Interconnection Agreementnnection A “Delivery Term”Term”ermmeans the period of time commencing upon the Commercial Operation means the periomeans the period of ti th Date and terminating at the end of the fifteenth (15terminating at the end of theminating at the end) Contract Year. “Delivery Term Security”elivery Term Security”Term Securihas the meaning set forth in Section 9.4(a)(ii). has “Disclosing Party”“Disclosing Party”sclosing Party”has the meaning set forth in Section 13.1.has th “Dispute”“Dispute”“Dispute”has the meaning set forth in Section 17.1.hashasthe m “Downgrade“DownDowngradeg Event”refers to any point in time when (a) if Seller’s Guarantor has a Credit Rating from three Ratings AgenciCredit Rates, the Credit Ratings from two Ratings Agencies fall below BBB- from S&P, AAgencieBaa3 from Moody’s, or BBB- from Fitch; or (b) if Seller’s GuarSellerantor has Credit Rating from only one or two Ratings Agencies, the Credit Rating from one of the Rating Agencies falls below the applicable thresholds. This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 5 Exhibit 'A' “Early Termination Date”has the meaning set forth in Section 7.2(a). “Effective Date”has the meaning set forth in the Preamble to the Agreement. “Emergency” means that an “Emergency Condition” has been declared as provided in ovid the ERCOT Protocols. “Energy” means electric energy generated by the Project and available for delivery to the for delivery to the ivery to th Delivery Point, which shall exclude the electric energy consumed by the Project andshall the Project androject andshall shall be in the form of three (3)-phase, sixty (60) Hertz, alternating current. ent. “Energy Trades”has the meaning set forth in ERCOT Protocol 4.4.2. col 4.4.2. 4.2. “Environmental Attributes” means any and all presently existing or future benefits, sently existing or future besently existing or future b emissions reductions, environmental air quality credits, emissions reduction credits, credits, emissions reductioedits, emissions red greenhouse gas emissions, renewable energy credits (as contemplated on the Effective edits (as contemplated on t(as contempl Date pursuant to PUCT Substantive Rule 25.173(c)(13)), including those granted 25.173(c)(13)), including (c)(13)), incl sanctioned or issued by federal, state or local authorities, “greenocal authorities, “greenal authorities, “green--e” certificates, e” coffsets and allowances, green tag or other transferable indicia attributable to the Project during sferable indicia attributable le ind the Term, howsoever entitled or named, renamed, resulting from theresultingsulting from the avoidance, reduction, displacement or offset of the emission of any gasion of any gas, chemical ory gas, chems, chemical or other substance, including any of the same arising out of presently existing or future legislation or regulation of presently existing or futesently existing concerned with oxides of nitrogen, sulfur or carbon, with particulate matter, soot or itrogen, sulfur or carbon, rogen, sulfur or mercury, or implementing the United Nating the United Nations Frahe United Natioons Framework Convention on Climate Change (“UNFCCC”) or the Kyoto Protocol to the UNFCCC or crediting “early action” or the Kyoto Protocol to theKyoto Protocol emissions reduction, or laws or regulations i, or laws or regulations invws or regulationvolving or administered by the Clean Air Markets Division of the Environmental Protecn of the Environmental ProEnvironmetion Agency, or any successor state or federal agency given jurisdiction over a program involving transferability of y given jurisdiction oveven jurisdiction Environmental Attributes, and any renewable energy certificate reporting rights to such ntal Attributes, and any renetal Attributes, and an Environmental Attributes. Notwithstanding any other provision hereof, Environmental mental Attributes. Notwithstal Attributes. No Attributes do not include: (a) any Tax Attriutes do not include: (a) ando not include: butes, (b) state, federal or private grants or other benefits related to the Project, (c) Net Output. er benefits related to the Profits related to “Equitable“EquituitttableableDefensesDefenseDefenses””” means any bankruptcy, insolvency, reorganization or other laws m affecting creditors’ rights generally and, with regard to equitabaffecting crediaffecting creditors’ rigle remedies, the discretion of the court before which proceedings may be pending to obtain same. of the court beof the court before w “““ERCOTERCOTERCOTT” means the Electric Reliability Counc” meil of Texas, Inc., or its successor. “““““ERCOT ProtocolsEERCO” means the document adopted by ERCOT, including any attachments or exhibits referenced in that attachdocument, as amended from time to time, that contains the scheduling, operating, planning, reliability, and settlement policies, rules, This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 6 Exhibit 'A' guidelines, procedures, standards and criteria of ERCOT. For the purposes of determining responsibilities and rights at a given time, the ERCOT Protocols, as amended in accordance with the change procedures described in the ERCOT Protocols, in effect at the time of the performance or non-performance of an action, shall govern with respect to that action. “Event of Default”has the meaning set forth in Section 7.1. “Executives”has the meaning set forth in Section 17.2(a). “Fitch” means Fitch Ratings, Ltd or any successor thereto, or in the event that there is no he event that there is no ent that there is no such successor, a nationally recognized credit rating agency. “Forced Outage” means any unplanned reduction or suspension of the electrical output pension of the electrical ouension of the electrical from the Project or unavailability of the Project in an amount greater than ten percent n amount greater than ten pn amount greater than ten (10%) of the Project Capacity in response to a mechanical, electrical, or hydraulic control hanical, electrical, or hydraulnical, electrical, or hy system trip or operator-initiated trip in response to an alarm or equipment malfunction, or o an alarm or equipment maalarm or equip any other unavailability of the Project for maintenance or repair that is not a Planned maintenance or repair that isce or repair Outage, due to a System Curtailment, or the result of aForce Majeure Event. e result of resulaForce Majeure orceMajeE “Force Majeure Event” means any event or circumstance which wholly or partly y event or circumstance wnt or circu prevents or delays the performance of any ance of any material obliany materiamaterial obligation arising under this Agreement, other than the obligation to pay gation to pay amounts due, bto pay amounts amounts due, but only to the extent (1) such event is not within the reasonable control, dinable control, directly or inable control, direrectly or indirectly, of the Party seeking to have its performance obligation(s) excused therigation(s) excused thereby,on(s) excused theby, (2) the Party seeking to have its performance obligation(s) excused thereby n(s) excused thereby has texcused thereby has taken all reasonable precautions and measures in order to prevent or o prevent or avoid such evenent or avoid sucavoid such event or mitigate the effect of such event on such Party’s ability to perform its obligations under this Agreement and which by the ity to perform its obligationrform its o exercise of due diligence such Party could note diligence such Party coulgence such Party reasonably have been expected to avoid and which by the exercise of due diligence itby the exercise of due diligeby the exercise of due has been unable to overcome, and (3) such event is not the direct or indirect result of not the direct or indirect resthe direct or indirethe fault or negligence of the Party seeking to have its performance obligations excused thereby. ts performance obligations eformance obligat Subject to the foregoing, events that could qualify asaForce MajeureSubjeSubject to Eventinclude, but are not limited to the following:Eventntinclude, but are notinclude, but ar acts of God, flooding, lightning, landslide, earthquake, fire, drought, explosion, epidemic, quarantine, storm, hurricane, tornado, volcano, ddrough othernatural disaster or unusual or extreme adverse weather-related events;othe This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 7 Exhibit 'A' war (declared or undeclared), riot or similar civil disturbance, acts of the public enemy (including acts of terrorism), sabotage, blockade, insurrection, revolution, expropriation or confiscation; or except as set forth in subpart (b)(vi) below, strikes, work stoppage or other labor disputes (in which case the affected Party shall have no ha obligation to settle the strike or labor dispute on terms it deems unreasonable). onable). e). environmental and other contamination at or affecting the or affecting the fecting th Project; explosion, accident or epidemic; accidents of navigation or breakdown or injury of vessels, akdown or injury of vessen or injury of accidents to harbors, docks, canals or other assistances to or adjuncts of shipping stances to or adjuncts of shipstances to or adjuncts of sh or navigation, or quarantine; nuclear emergency, radioactive contamination or ionizing radioactive contamination active contam radiation or the release of any hazardous waste or materials; ous waste or materials; us waste or materials; air crash, shipwreck, train wrecks or other failures or delays of pwreck, train wrecks or othek, train transportation; vandalism beyond that which could alism beyond that which coubeyond that whicbe reasonably prevented by Seller; the discovery of Native American burial grounds not evidenced the discovery of Native Adiscovery of Nat in Seller’s Phase I environmental assessment of the Site; hase I environmental assessmenvironmental a the discovery of endangered species, as defined by Law; and the discovery of ehe discove breakdown or failure of equipmenbreakbreakdown t as a result of a serial manufacturer defect or flaw.manufacturer defect or flawfacturer defect o AForce MajeureEventshall not be based on:AForce MaFor Buyer’s inability economically to use or resell the Product purchased hereunder;purchapurchased her Seller’s ability to sell the Product at a price greater than the price set forth in this Agreement;price Seller’s inability to obtain Governmental Approvals or other approvals of any type for the construction, operation, or maintenance of the Project; This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 8 Exhibit 'A' Seller’s inability to obtain sufficient labor, equipment, materials, or other resources to build or operate the Project, except to the extent Seller’s inability to obtain sufficient labor, equipment, materials, or other resources is caused by aForce Majeure Event of the specific type described in any of subsections (a)(i) through (a)(xi) above; Seller’s failure to obtain financing or other funds, including s, includlud funds authorized by a state or the federal government or agencies thereof, to ies thereof, toof, supplement the payments made by Buyer pursuant to this Agreement; orment; oror a strike, work stoppage or labor dispute limited only to any one imited only to ad only to any one ne or moreof Seller or Seller’s Affiliates. “Force Majeure Extension”has the meaning set forth in Section 4.2(b)(iii).Section 4.2(b)(iii)4.2(b)(iii). “Gains” means with respect to any Party, an amount equal to the present value of the unt equal to the present valunt equal to the presen economic benefit to it, if any (exclusive of Costs), resulting from the termination of this ), resulting from the terminasulting from th Agreement for the remaining Delivery Term, determined in a Commercially Reasonable determined in a Commercianed in a Com manner. Factors used in determining economicomic benefit may include, wmic benefit may inclu benefit may include, without limitation, reference to information either available to itto it internally or supplied b internally or supplied by one or more third intern parties, including, without limitation, quotations quotations (either firm or ations (eit(either firm or indicative) of relevant rates, prices, yields, yield curves, volatilitiesolatilities, spreads or other rs, spreads or, spreads or other relevant market data in the relevant markets, comparable transactionsransactions, forward price ctions, forward , forward price curves based on economic analysis of the relevant markets, settlement priets, settlement prices for cots, settlement prices ces for comparable transactions at liquid trading hubs (e.g., NYMEX), all of which sX), all of which should be caall of which shouhould be calculated for the remaining term of this Agreement and include the value, if any, of Capacity Attributes, and Environmental lude the value, if any, of Cae value, if any, Attributes. “GEP Cure”has the meaning set forth in Section 3.21(b). as the meaning set forth in Smeaning set for “GEP Damages”mages”ageshas the meaning set forth in Exhibit D. has the meanhas the meaning set “GEP Failure”EP Failure”urmeans Seller’s failure to produce Delimeans Semeans Seller’s vered Energy in an amount equal to or greater than the Guaranteed Energy Production amount for the applicable o or greater than the Gugreater than th Performance Measurement Period. Performance Measuremenormance Measur “Governmental Approvals”“Governmenta“Governmental Appmeans all authorizations, consents, approvals, waivers, exceptions, variances, filings, permits, orders, exceptions, exceptions, varianlicenses, exemptions and declarations of or with any Governmental Authority and shall include those siting and operating permits with anywith any Gove and licenses, and any of the foregoing undeand licensesr any applicable environmental law, that are required for the use and operation of the Project. rerequired This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 9 Exhibit 'A' “Governmental Authority” means any federal, state, local or municipal government body; any governmental, quasi-governmental, regulatory or administrative agency, commission, body or other authority exercising or entitled to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power; any court or governmental tribunal; or any independent operator, regional transmission organization or other regulatory body; in each case having jurisdiction over either Party,her P the Project, the Site, Seller’s Interconnection Facilities, the Interconnection Provider’s n Providevid Interconnection Facilities, or the Transmission Operator’s System. “Governmental Charges”has the meaning set forth in Section 12.2. “Guaranteed Commercial Operation Date”means December 31, 2020. 31, 2020. “Guaranteed Energy Production”has the meaning set forth in Section 3.21(a). rth in Section h in Sect3.21(a)3.21(a). “Guarantor” means an entity which, at the time it is to provide a Guaranty, (a) has a t is to provide a Guaranty, is to provide a Guar Credit Rating from at least two Ratings Agencies equal to or greater than BBB- from ies equal to or greater thanqual to or gre S&P, Baa3 from Moody’s, or BBB- from Fitch; and (b) is incorporated or organized in a h; and (b) is incorporated orb) is incorpor jurisdiction of the United States and is in good standing in such jurisdiction. ood standing in such jurisdicd standing in such jur “Guaranty”means aGuaranty substantially in the form of Exhibit E. ntially in the form of Exhibiin the form “Initial Negotiation End Date”has the meaning set forth in Section 17.2(a).has the meaning set forth inhe meaning set fo “Interconnection Agreement”ment”””” means the separate genera means the separ means the separate getion interconnection agreement between Seller (or its Affiliate), the TranAffiliate), the Transmissioliate), the Transmsmission Operator and the Interconnection Provider for interconnection of the Project to the Transmission Operator’s System as such nnection of the Project to theon of the Project agreement may be amended from time to time. e amended from time to timed from tim “Interconnection Provider”ection Provider”ction Provider”” means the Person that owns the portion of the Transmission mean means the Operator’s System (including the interconnection facilities that are not Seller’s ’s System (including theSystem (including Interconnection Facilities) at the Delivery Point. As of the Effective Date, the onnection Facilities) at thtion Facilities) Interconnection Provider is LCRA. rconnection Provider is LCRction Provid “Interconnection Provider’s Interconnection Facilities”“Intercterconnection Providonnection P means the interconnection facilities, control and protective devices afacilities, contfacilities, control and nd metering facilities required to connect the Project with the Transmission Operator’s Project with Project with the TSystem from, and on Buyer’s side of, the Delivery Point. DeliveryDelivery Point. “Interest Payment Date”“Interest Pmeans the last Business Day of each calendar month. “““InterestInteRate” means the lower of (i) annual rate equal to the Prime Rate then in effect plus two percent (2%) and (ii) the maximum interest permitted by Applicable Law. This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 10 Exhibit 'A' “LCRA”means Lower Colorado River Authority. “Letterof Credit” means an irrevocable, transferable standby letter of credit, substantially in the form of Exhibit F, issued by a U.S. commercial bank or a foreign bank with a U.S. branch with such bank having a Credit Rating of at least A- from S&P rom or A3 from Moody’s, and having assets of at least $10 Billion, in a form acceptable to the ptable to tto Party in whose favor the letter of credit is issued. “Losses” means with respect to any Party, an amount equal to the present value of the present value of the nt value of the economic loss to it, if any (exclusive of Costs), resulting from a Terminated Transaction Terminated Transaction nated Transaction for the remaining term of this Agreement, determined in a Commercially Reasonable Commercially Reasonable cially Reasonable manner. Factors used in determining the loss of economic benefit may include, without benefit may include, withoufit may include, w limitation, reference to information either available to it internally or supplied by one or internally or supplied by onnternally or supplied by more third parties including without limitation, quotations (either firm or indicative) of tions (either firm or indicattions (either firm or indicat relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market ies, spreads or other relevas, spreads or other r data in the relevant markets, comparable transactions, forward price curves based on actions, forward price curvns, forward p economic analysis of the relevant markets, settlement prices for comparable transactions ttlement prices for comparabprices for co at liquid trading hubs (e.g. NYMEX), all of f which should be calculatedwhich should be calculated for the remaining which should be calcu term of this Agreement and include the valuthe value, if any, of Capaalue, e, if any, of Capacity Attributes, and EnvironmentalAttributes. “Manager”has the meaning set forth in Section 17.2(a). t forth in Section in Section 17.2(a)17.2(. “Metering System” means all meters, metering devices and related instruments used to s all meters, metering devic meters, metering measure and record Energy and nergy and to determine the and to determineto determine the amount of such Energy that is being made available or delivered by the Project aelivered by the Project and thd by the Projectnd the Wind Project at the Delivery Point. “Moody’s” means eansMoody’s Investor Service, Inc. or any successor thereto, or in the Moody’s InvestoMoody’s Investor Ser event that there is no such successor, a nahere is no such successor, a nere is no such successtionally recognized credit rating agency. “MW”means a megawatt (or 1,000 kilowatts) of AC electric generating capacity. means a megawatt (or 1,00ns a megawatt (o “MWh” “MWh” hmeans a megawatt hour of Energy. means means a megawatt ha mega “““Net OutputNet OutputNet Output””” means Energy produced by the Project, less station use and less means transformation and transmission losstransformationtransformation and es and other adjustments (e.g., Seller’s load other than station use), if any. For purposes of calculating payment under this Agreement, Net than statithan station use), Output shall be the amount of Energy measureOutput shall butputsd by the meters installed at the Delivery Point. Point. “Non“Non-Defaulting Party”has the meaning set forth in Section 7.2. This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 11 Exhibit 'A' “Notice” has the meaning set forth in Section 18.1. “Operating Procedures”has the meaning set forth in Section 3.13. “Party”or“Parties”has the meaning set forth in the first paragraph of this Agreement. “Performance Assurance” means collateral provided by Seller to Buyer to secure r to secusec Seller’s obligations hereunder and includes Project Development Security and Delivery y and Deliverylive Term Security. “Performance Measurement Period”has the meaning set forth in Section 3.21(a). Section on3.21(a)3.21(a).. “Permitted Extensions” means extensions to the Guaranteed Commercial Operation teed Commercial OperatioCommercial Op Date due to Transmission Delay, Permitting Delay, or Force Majeure Extension. rce Majeure Extension. e Majeure Extension. “Permitting Delay” has the meaning set forth in Section 4.2(b)(ii). ctionon4.2(b)(ii)).. “Person” means an individual, partnership, corporation, business trust, joint stock , corporation, business truation, busine company, trust, unincorporated association, jon, joint venture, governmenjoint venture, goverint venture, governmental entity, limited liability company or any other entity of whatever nature. whatever nature. ver na “Planned Outage” means the removal of the all or a portion of the Project from service oval of the all or a portion he all or a po availability for inspection and/or general /or general overhaul of oneneral overhaul overhaul of one or more major equipment groups. To qualify as a Planned Outage, the maintenance (a) must actually be conducted ned Outage, the maintenanced Outage, the m during the Planned Outage, and in Sege, and in Seller’s sole discand in Seller’s soller’s sole discretion must be of the type that is necessary to reliably maintain consistent wmaintain consistent with Pruin consistent witith Prudent Operating Practices the Project, (b) cannot be reasonably conducted during nably conducted during conducted durinthe Project’sthe operations, and (c) causes the generation level of the Project to be reduced of the Project to be reduced oject to be by at least ten percent (10%) of the Project Capacity. “Prime Rate” Rate”e”means meansmeans the interest rate (sometimes referred to as the “base rate”) for large the interethe interest rate commercial loans to creditworthy entities ercial loans to creditworthy loans to creditwannounced from time to time by Citibank, N.A. (New York), or its successor bank, or, if such rate is not announced, the rate published in ew York), or its successor ba), or its succ The Wall Street Journal as the “Prime Rate” frThe Wall Street Journal as tWall Street Journaom time to time (or, if more than one rate is published, the arithmetic average of such ratesis published, the arithmetublished, the arit), in either case determined as of the date the obligation to pay interest arises, but the obligationthe obligation to payin no event more than the maximum rate permitted by Applicable Law. permitted by Apermitted by Applic “Product”“Product”Produchas the meaning set forth in Section 3.1.has “Project” “P“Projecthas the meaning set forth in the Recitals and includes Seller’s proposed electrical plant and equipment used to geelectrnerate electricity utilizing photovoltaic solar This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 12 Exhibit 'A' power located at the Site, Seller’s Interconnection Facilities and any and all additions, replacements or modifications. The Project is more particularly described in Exhibit B. “Project Capacity” means the full generation capacity of the Project net of all Station Service as measured at the Delivery Point, which will be 100 MW. “Project Cure Period”has the meaning set forth in Section 4.3(a). “Project Development Security”has the meaning set forth in Section 9.4(a)(i).4(a)(i). “Project Investor” or “Project Investors” means any and all Persons or successors in ersons or successors in s or successors in interest thereof (A) lending money, extending credit or providing loan guarantees roviding loan guarantees loan guarantees (whether directly to Seller or to an Affiliate of Seller) as follows: (i) for the construction, ows: (i) for the construction(i) for the constru interim or permanent financing or refinancing of the Project; (ii) for working capital or oject; (ii) for working capitaect; (ii) for working cap other ordinary business requirements of the Project (including the maintenance, repair, including the maintenance, including the maintenance, replacement or improvement of the Project); (iii) for any development financing, bridge or any development financinany development fin financing, credit support, credit enhancement or interest rate protection in connection r interest rate protection inerest rate prot with the Project; (iv) for any capital improvement or replacement or replacement relatedreplacement ment related to the Project; or (v) for the purchase of the Project and and the related rights frond the related rightthe related rights from Seller; or (B) participating (directly or indirectly) as ans an equity investor (inclu equity investor (including a Tax Equity equity Investor) in the Project; or (C) any lessor undeessor under a lease finance under a lear a lease finance arrangement relating to the Project. “Prudent Operating Practices”tices”ces” means the practices, methods and standards of means the practicemeans the professional care, skill and diligence engaged in or approved by a significant portion of d diligence engaged in or aligence engaged i the electric generation industry for solar facilitndustry for solar facilities ory for solar faciliies of similar size, type, and design, that, in the exercise of reasonable judgment, in lighonable judgment, in light of judgment, in lit of the facts known at the time, would have been expected to accomplish results consistenaccomplish results consisteish resultst with Applicable Law, reliability, safety, environmental protection and standards of econoprotection and standards ofection and standamy and expedition.Prudent Operating Practices is not intended to be limited tonot intended to be limitednot intended to be li the optimum practice, method, or act to the exclusion of all others, but rather to be n of all others, but rather tof all others, but ratacceptable practices, methods, or acts generally accepted in the industry. ted in the industry. the industry. “Qualified Scheduling EntityQualified Scheduling Entlified Scheduling” or “QSE” has the meaning set forth in the ERCOT Protocols and means the entity that provides thProtocols and means the tocols and meane Project scheduling, bidding services and financial settlement with ERCOT. financial settlefinancial settlement wi “Ratings Agency”“Ratings“Ratings Agency means either S&P, Moody’s, or Fitch. “Receiving Party”“Receiving has the meaning set forth in Section 13.1. “Referral Date”“Refehas the meaning set forth in Section 17.2(a). This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 13 Exhibit 'A' “Replacement Price” means the price at which Buyer, acting in a Commercially Reasonable manner, purchases a replacement for the Product if it is not delivered by Seller, plus (i) costs reasonably incurred by Buyer in purchasing such substitute Product and (ii) additional transmission charges, if any, reasonably incurred by Buyer to the Delivery Point or, at Buyer’s option, the market price at the Delivery Point for such Product not delivered as determined by Buyer in a Commercially Reasonable manner; ma provided, however, in no event shall such price include any penalties, transmission costs, ission cosco ratcheted demand or similar charges, nor shall Buyer be required to utilize or change its e or change itsge utilization of its owned or controlled assets or market positions to minimize Seller’s minimize Seller’s ze Seller’ liability. “RTSPP” or “Real-Time Settlement Price Point” means, for fifteen (15) minute for fifteen (15) minute een (15) minute settlement period, the real-time settlement price (as then-applicable to the Delivery Point) licable to the Delivery Pointe to the Delivery for Net Output, expressed in dollars per MWh, at the Delivery Point for such settlement livery Point for such settlemvery Point for such sett period, as determined by ERCOT and published on the ERCOT website at ed on the ERCOT websd on the ERCOT web www.ercot.com in accordance with the then applicable ERCOT Protocols. The ERCOT able ERCOT Protocols. Thle ERCOT Protocols Day Ahead Market and RTSPP location/name for the Project settlement point is me for the Project settlemr the Project CAPRIDG4_CR4. “S&P” means Standard & Poor’s or any successor theretsuccessor thereto, or in the essor to, or in the event that there is no such successor, a nationally recognized credit rating agency. ed credit rating agency. it rating ag “SCADA” means Supervisory Control and Data AcquControl and Data Acqul and Data Acquisition. isition “SEC”means the U.S. Securities and Exchange Commission. curities and Exchange Commties and Exchange “Seller”has the meaning set forth in the fining set forth in the first paret forth in the frst paragraph of this Agreement. “Seller Curtailmentment” means any curtailment of ” means any curt” means any curtailmenNet Output resulting from (a) a failure of Seller’s Interconnectrconnectconnection Facilities that causes the Projion Facilities ion Facilities that cect to be disconnected, suspended or interrupted, in whole or in part, or (b) Seupted, in whole or in part, oed, in whole or in ller’s default under this Agreement or the Interconnection Agreement. onnection Agreement. tion Agreement. “Seller Excuses”Seller Excuses”Excusehas the meaning set forth in Section 3.5(a). has thhas the me “Seller’s Interconnection Facilities”“SSeller’s Interconnectller’s Inter means the interconnection facilities, control and protective devices and metering facilities reprotective devprotective devices quired to connect the Project with the Transmission Operator’s Systemup to, and on Seller’s side of, the Delivery Point.TransmissioTransmission Op “Seller’s Replacement Costs”“Seller’s Rhas the meaning set forth in Section 3.6(a). “Seller’s Ultimate Parent Company”“SSellemeans NextEra Energy, Inc. This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 14 Exhibit 'A' “Settlement Amount” means, with respect to the Non-Defaulting Party, the Losses or Gains, and Costs, expressed in U.S. Dollars, which such Party incurs as a result of the liquidation of a Terminated Transaction. “Shared Contract Year”has the meaning set forth in Section 3.21(d). “Site”means the real property on which the Project is located. “Station Service” means the electric energy produced by the Project that is used within hat is ususededdd within withi theProject to power the lights, motors, control systems and other auxiliary electrical r auxiliary electrical iliary electrical loads that are necessary for operation of the Project. “System Curtailment” means any curtailment of delivery of Net Output as the result of f Net Output as the result oOutput as the re any of the following: (i) an Emergency, (ii) an action taken by the Interconnection n taken by the Interconnectaken by the Interconn Provider or the Transmission Operator to decrease the production of the Project’s Net he production of the Projecthe production of the Projec Output to resolve transmission constraints, and (iii) any other order or directive of the i) any other order or directiany other order or d Interconnection Provider or the Transmission Operator, which order or directive may be perator, which order or direcor, which orde directly communicated to Seller by the Interconnection Provider or the Transmission rconnection Provider or thion Provider Operator, or indirectly to Seller by Buyer. “System Curtailment Order” means the instruction from ERCOT or the Transmission the instruction from ERCOstruction Operator to a Party or the QSE to reduce genereduce generation from the neration froration from the Project by the amount, and for the period of time set forth in such order, due to a System Curtailment. n such order, due to a Systemh order, due to a S “Tax Attributes” means (i) investment tax credits (ii) investment tax credits (innvestment tax crencluding any grants or payments in lieu thereof) and any other tax deductions other tax deductions or benetax deductions oror benefits under federal, state or other Law available as a result of the ownership and opeof the ownership and operatownership and ration of the Project or the output generated by the Project (including, without limitation, ncluding, without limitationwithout ltax credits, payments in lieu thereof and accelerated and/or bonus depreciation); and d/or bonus depreciation); abonus depreciati(ii) present or future (whether known or unknown) cash payments, or outright grants of money relating in any way to the Project. ash payments, or outright grash payments, or outri “Tax Equity Investor”Equity Investor”ty Investor””” means an investor that has acquire mea means and an equity interest in Seller pursuant to a financing structure that assigns susuant to a financing structura financingch investor rights, title and benefits to the Tax Attributes of Seller. Tax Attributes of Seller. ttributes of Selle “Term” “Term” “Term” has the meaning set forth in Section 2.1.has thhas the meanin “Terminated Transaction”“Term“Terminated Tra means the termination of this Agreement in accordance with Section 7.2of this Agreement. Section ection7.2of “Termination Payment”“T“Termin has the meaning set forth in Section 7.3. “Transfer Taxes” has the meaning set forth in Section 3.3(b). This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 15 Exhibit 'A' “Transmission Delay”has the meaning set forth in Section 4.2(b)(i). “Transmission Operator” means ERCOT or any successor independent system operator, regional transmission operator or other transmission operator from time to time having authority to control the transmission Balancing Authority into which the Project is Proj interconnected. “Transmission Operator’s System” means the contiguously interconnected electric onnected electric ed electri transmission facilities over which the Transmission Operator has rights to manage the ights to manage the to manage the bulk transmission of capacity and energy from the Delivery Point. “TRE” means the Texas Reliability Entity, Inc., and its successor.essor. “Wind Project” has the meaning set forth in Section 5.1... 1.2Interpretation. The following rules of construction shall be followed when interpreting this Agreement: ed when interpreting this Agd when interpreting th the gender (or lack of gender) of all words used in this Agreement of gender) of all words under) of includes the masculine, feminine, and neuter; nd neuter; ; words used or defined in the singular include the plural and vice versa; or defined in the singular incned in the singul references to Articles and Sections reces to Articles and SectionsArticles and Secfer to Articles and Sections of this Agreement; references to Annexes, Exhibits and Schedules refer to the Annexes,references to Annexes, Exes to Anne Exhibits and Schedules attached to this AgSchedules attached to this Adules attached to reement, each of which is made a part hereof for all purposes; poses;oses references to Applicable Laws refer to suchApplicableLaws as they referencesreferences to A may be amended from time to time, and reay be amended from time mended fromferences to particular provisions of an Applicable Law include any corresponding provisions of any succeedingApplicableLaw Applicable icable Law include anyLaw includ and any rules and regulations promulgated thereunder; and any rules and regulatany rules and re terms defined in this Agreement artee used throughout this Agreement and in any Annexes, Exhibits and Schedules hereto as so defined; and in anand in any Annex references to money refer to legal currency of the United States of America;AAmerica the words “includes” or “including” shall mean “including without This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 16 Exhibit 'A' limitation;” the words “hereof,” “hereby,” “herein,” “hereunder” and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular Article or Section in which such words appear, unless otherwise specified; all references to a particular entity shall include a reference to such nce to ss entity’s successors and permitted assigns but, if applicable, only if such successors and uccessors andrs a assigns are permitted by this Agreement; references to any agreement, document or instrument shall mean a trument shall mean a nt shall mean a reference to such agreement, document or instrument as the same may be amended, same may be amended, may be amended, modified, supplemented or replaced from time to time; the word “or” will have the inclusive meaning represented by the ve meaning represented bve meaning represented phrase “and/or”, unless the context clearly indicates thatan exclusive meaning is ates thattes thatan exclusive meaexclusiv intended. the words “shall” and “will” mean “mill” mean “must”, and shalill” mean “must”, andust”, and shall and will have equal force and effect and express an obligation; and gation; and on; a the words “writing,” “written” and comparable terms refer to printing, ,” “written” and comparabletten” and c typing, and other means of reproducing in a visible form.ucing in a visible form.in a visible form ARTICLE 2 ARTICLE 2ARTICLE 2 TERM TERM TERM 2.1Term. The “Term” of this Agreement shall commence on the Agreement shall commenceAgreement shall com Effective Date and continue until the date that is fifteen (15) years following the Commer5) years following the Commyears following thecial Operation Date, unless sooner terminated in accordance with the terms hereof. The Term may ith the terms hereof. The Te terms hereof. Tbe renewed or extended by mutual consent of the Parties, upon terms and conditions and for a , upon terms and conditionserms and condprice upon which the Parties mutually agree in connection with such extension or renewal. on with such extension or reth such extensio ARTICLE 3 OBLIGATIONS AND DELIVERIES 3.13.13.1Product.Product.Product. The “““ProductProProduct”” to be delivered and soldt by Seller and received and purchased by Buyer under this Agreement is Delivered Energy, Capacity Attributes, Environmental Attributes (consistent greeme with the requirements described in PUCT Substantive Rule §25.173(e)), and other ancillary This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 17 Exhibit 'A' products, services or attributes similar to the foregoing which are or can be produced by or associated with the Delivered Energy in accordance with the terms hereof. 3.2Purchase and Sale. Unless specifically excused by the terms of this Agreement during the Delivery Term, Seller m, shall sell and deliver, or cause to be delivered, and Buyer shall purchase and receive, or cause to or causeus be received, the Product at the Delivery Point, and Buyer shall pay Seller for the Product in the Product inuct accordance with the terms hereof. 3.3Contract Price. Buyershall pay Seller for each MWh of the Productduring the of the eProductProductduring theduring the Delivery Term, at the applicable rate set forth in Exhibit A (as applicable during the it A (as applicablas applicable during e du respective periods, the “Contract Price”). In addition to the amounts otherwise payable by Buyerin accordance rwise payable by se payable by Buyerin with this Section 3.3, Buyer shall pay and shall indemnify, to the extent allowable by all indemnify, to the extentemnify, to the Applicable Law, and hold Seller harmless from and against all sales, use excise, ad from and against all salesfrom and against all valorem, transfer and other similar taxes (“(Transfer TaxesTransfer Taxesrans”), but excluding in all events ”)b”), but exc taxes based on or measured by net income, that are imposed by any taxing authority ncome, that are imposed bye, that ar arising out of or with respect to the purchae purchase or sale of Produse or sale of Product (regardless of whether se or sale o such Transfer Taxes are imposed on Buyer or Sellon Buyer or Seller), togetheuyer or Seller), toer), together with any interest, penalties or additions to tax payable with respect to such Transfer Taxes. h respect to such Transfer Taect to such Trans 3.4Capacity Attributes. In the event the PUCT or ERCOT establishes a capacity market, as that term is commonly r ERCOT establishes a capOT establishes understood, requiring Buyer to uyer to show resources in reserve to satisfy Buyer’s load requirements, show resources in rhow resour and to the extent the Capacity Attributes of the Capacity Attributes of the Pcity Attributes ofProject would qualify as such a resource, Buyer shall be entitled, to the extent allowed by to the extent allowed by Ao the extent allowApplicable Law, to claim for such purposes the Capacity Attributes generated by the Project. Atutes generated by the Projegenerated by the Buyer’s request and at Buyer’s sole cost and expense, the Parties shall execute such documene Parties shall execute sucies shall executts and instruments as may be reasonably required to effectuate the recognition and transfer of o effectuate the recognitionate the recosuch Capacity Attributes, if any, to Buyer. For the avoidance of doubt, the foregoing shall not e avoidance of doubt, the fordance of doubt, tgive Buyer the right to direct the operation or maintenance of the Project, or to modify the desintenance of the Project, or te of the Projecgn of the Project or any component thereof, for purposes of affecting the production, quantity, qualiturposes of affecting the prourposes of affecting y, nature or value of capacity in respect of the Project. the Projecthe Project. 3.53.53.5Performance Excuses. Performance The performance of Seller to deliver the Energyshall be excused only (i)during periods of Force Majeure, (ii)by Buyeri)du’s failure to perform, (iii)during Buyer Curtailments and System Curtailments, and (iv) during Planned Outages (“Seller This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 18 Exhibit 'A' Excuses”). The performance of Buyerto receive and pay for the Productshall be excused only (i)during periods of Force Majeure, (ii)by Seller’s failure to perform, or (iii)during System Curtailments(“Buyer Excuses”). 3.6Buyer’s Failure to Accept Delivery of Product. If Buyerfails to take all or part of the Productand such failure is not ch failure is not lure is n excused due to BuyerExcuses, then Buyershall pay Seller, on the date payment would ate payment would ayment would otherwise be due in respect of the monthin which the failure occurred,an amount equal rred,an amount an amounequal qual to the Contract Pricemultiplied by the amount of Product that Buyer failed to take during uyer failed to take during iled to take during such month;provided,however, in no event shall Buyer be required to pay Seller an e required to pay Seller anuired to pay Seller an amount greater than the Contract Price (“Seller’s Replacement Costsment CostsCost”).”).) Seller shall include in a monthly invoice delivered to Buyerpursuant to voice delivered to oice delivered to BuyerBuypu Section 8.1 the amounts owed by Buyer pursuant to Section 3.6(a) and a description, in to Section Se3.6(a)6(a) and a desd reasonable detail, of the calculation of Seller’s Replacement CostsReplacement Costsement Costs... 3.7Seller’s Failure to Deliver Product. If Seller fails to deliver all or deliver all or part of the all or partpart of the Productpursuant to the P Agreement, and such failure is not due to Seller Excuses, tht due to Seller Excuses, thento Seller Excuseen Seller shall pay Buyer, on the date payment would otherwise be due in respect of the monthin which the failure wise be due in respect of thbe due in respect occurred, an amount for such deficiency equal h deficiency equal to the podeficiency equal to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price (“act Price from the Replacemrice from the ReBuyer’s Replacement Costs”). No later than the tenth (10th) Day of the month following any month in No later than the tenth (10ththan the te which Seller owes Buyerwes BuyerBuyer’s Replacement Costs’s Replace’s Replacement ,Buyershall deliver to Seller an invoice showing the amounts owed by Seller and a e amounts owed by Sellere amounts owed by description, in reasonable detail, of the calculation ofBuyeron offBuyerBuyer’s Replacement Costs’s Replace’s Replacement . Seller shall credit Buyer, in an amount equal to any undisputed amounts set forth in the invoice received from Buyer, against the y undisputed amounts set fisputed amounts amounts owed by Buyerto Seller, providedthat ounts owed by wedBuyerBuyto Seif the amount of such credit is greater than the amount payable by Buyerfor such mhan the heamount payable by amount payabonth, the excess portion of such credit shall be applied by Seller to rebe applied by Seller to rapplied by Selleduce the amount payable by Buyerhereunder in subsequent month(s).month(s).month(s). 3.833.8Offsets, Allowances and Environmental Attributes. Offsets, Offsets, Allowan Buyerisentitled to all Environmental Attributesand Capacity Attributes resulting from the generation of AAttributeall or part of the Product that is actually purchased by Buyerpursuant to this Agreement. Buyershall be entitled to any purch Environmental Attributesor Capacity Attributes resulting from all or part of the Product This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 19 Exhibit 'A' thatBuyer, for any reason, did not accept pursuant to Section 3.6. Seller shall be entitled to all (i) federal and state production tax credits, investment tax credits and any other tax credits which are or will be generated by the Project, (ii) any cash payments, grants under Section 1603 of the American Recovery and Reinvestment Tax Act of 2009 or outright grants of money relating in any way to the ay Project or Environmental Attributes, and (iii) any Environmental Attributesthat the esthatat Buyeris not entitled to pursuant to the provisions of Section 3.8(a). Buyer acknowledges acknowledgesedg that Seller has the right to sell any Environmental Attributes to whhich it is entitled ich it is entitled is entitle pursuant to this Section 3.8(b) to any Person other than Buyer at any rate and upon any y rate and upon any and upon any terms and conditions that Seller may determine in its sole discretion without liability to ion without liability to without liability to Buyer hereunder. Buyer shall have no claim, right or interest in such Environmental st in such Environmental ch Environmental Attributes or in any amount that Seller realized from the sale of such Environmental sale of such Environmentaof such Environ Attributes. During the Term, or applicable portion rtion thereof, Seller shall deion thereof, Seller shthereof, Seller shall deliver and transfer, and Buyer shall receive, Environmental Attributes and Capacity Attributes al Attributes Attand Capacityand described in Sections3.1and 3.4, respectively. Seller shall transfer all Environmental y.Seller shall transfer er shall transall Attributes in accordance with the ERCOT protocols, including its regulations and TTprotocolsprotocols, including its, includin procedures, for recording transfers.Seller and Buyer shall each cooperate fully and assist r and Buyer shall each coopd Buy each other in complying with any and all reguall regulatory obligations regulatory olatory obligations relating to recording and tracking of the transfer. Seller and Buyer d Buyer shall cooperate in shall cooperate in good faith and undertake shall coope reasonable efforts to consummate recognition te recognition of the transfcognition of the of the transfer in the applicable ERCOT Tracking System; provided, however, that Buyer acowever, that Buyer acknowlwever, that Buyer ackknowledges that such transfer will not be recognized unless and until Buyer confirmuntil Buyer confirms suchtil Buyer confirms such transfer in accordance with the applicable requirements of the ERCOT Trackin of the ERCOT Tracking e ERCOT Trackg System. Upon a notification by the administrator or operator of the ERCOT Tracking System that the transfer of the erator of the ERCOT Tracof the ERCO Environmental Attributes cannot be recorded due tributescannotcabe recordedbe recto a deficiency in the transaction or documentation, the Parties shall promptly confthe Parties shall promptly arties shall proer and cooperate in taking all reasonable actions necessary to cure any defects in the ssary to cure any defects in ssary to cure any defecproposed transfer, so that the transfer can be recorded at the earliest possible date.at the earliethe earliest possible date.t possible 3.9Station Service.on Service.vic If Buyer or any of its Affiliates provides retail electryer or any of its Affiliates pany of its Affiliic service in the service territory in which the Project is located, then if requested by Seller, Buyer or such Affiliate shall provide Station Project is located, then if rProject is located, Service to the ProjectService to the ProjeService to the Projectct(including Seller’s Interconnection Faci(includlities) as requested by Seller during construction and operation of the Project at the ratesconstruction and opconstruction and operatio and on the terms set forth in the applicable tariff(s) on a non-discriminatory basis with other commercial customers.tariff(s) on a nontariff(s) on a non-discr 3.1000Transmission. TTransmis Seller shall be responsible for presenting to and receiving Transmission Operator approval of the Projectinterconnection requirements and transmission facilities This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 20 Exhibit 'A' so that Seller can perform its Energy deliveries hereunder in accordance with such Transmission Operator’s requirements. In the event that the Transmission Operatoror any other properly authorized Person exercising control over the Interconnection Provider’s Interconnection Facilities or the Transmission Operator’s Systemtakes any action or orders Seller or Sel Buyerto take any action that affects Buyer’s ability to take delivery of Energy hereunder, y hereundun Buyershall use its best efforts (at its own cost and expense) to mitigate the adverse te the adversedver effects of such action(s) on Buyer’s ability to perform its obligations hereunder, ations hereunder, hereunder including, without limitation, redispatching its generation resources, other than the ces, other than the other than the Project. 3.11Scheduling. The Parties shall comply with all ERCOT Protocols,associated ERCOT ProtocolsERCOT Protocol,assoasso operation standards and guidelines, and Operating Procedures.ocedurescedu. Promptly following the Effective Date, Buyer and Seller shall take all tive Date, Buyer and Sellerate, Buyer an actions, and execute and deliver all documents nets necessary, to authorize or ts necessary, to authoricessary, to authorize or designate Seller, or Seller’sdesignated QSE, as the Project’s ct’sQualified Scheduling Entity. Sellershall Qualified ScheduQualified Scheduling E cause its designated QSE to provide, and Buyer shall accept, nd Buyer shall accept, yer shallat no cost to Buyer, Seller’s at no Qualified Scheduling Entity services for the Project. The ces for the Project. Thethe ProjecSeller’s QSE shall be responsible for scheduling the Project CaparojectCapacity and ProducCapacity and Pcity and Product and settling withERCOT regarding the Net Output. Seller shller shall all be responsible for and cause the all be responsible for be responsiblSeller’s QSE to perform the Qualified Scheduling Entity serviduling Entity services in acling Entity servicces in accordance with ERCOT Protocols, this Agreement and Applicable Law. licable Law. Law. TheheSeller’s Seller’s lerQSE will be obligated by the ERCOT Protocols to QSE will be SE wil communicate orders, instructions, rders, instructions, or othetructions,or other directives to Sellerand Buyer’s QSE, including such that may result in the inabh that may result in the int may result in ility or diminished ability to generate Net Output. TheTheheSeller’s Seller’s er’QSE shall submit energy schedules, resource plans, and energy QSE shQSE shall subm offer curves in accordance withrves in accordance with thein accordance wi the requirements of ERCOT Protocols, this Agreement and Applicable Law. Applicable Law. able Law. Seller’s QSE will transfer SelleSeller’s QProductand/or applicable components thereofthereofeofto Buyer’s QSE utilizing Energy Trades as defined ito Buyer’s to Buyer’s QSE n ERCOT Protocol 4.4.2or its successor.The fifteen (15)-its successorits successor..The fiftminute interval trade volumes will be based on ERCOT’s revenue meter settlement data for the relevant revenue meterevenue meter settflow date. The Energy Trades will be submitted prior to ERCOT’s energy trade deadline on the day followsubmittedsubmitted prior ing the flow date as mutually agreed upon with the Buyerin the Operating Procedures.mutually agrell Seller’s QSE will transfer Product and/or applicable components thereof hereto Buyer’s QSE utilizing Capacity Trades as defined in ERCOT Protocol 4.4.1or its successor.Thehourly trade volumes will be based on ERCOT’s most recent forecast This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 21 Exhibit 'A' of the projects MW output, and extended at least through Hour Ending 24 of the following day. The Capacity Trades will be executed on an hourly basis, or as mutually agreed upon with the Buyer. The Seller shall, or cause the Seller’s QSE, as applicable,totransmit to Buyer, the followinginformation that shall be further defined in the Operating Ope Proceduresand mutually agreed upon by the Parties: timely transmit relevant non-ICCP settlement data and notices data and notices and notice to ERCOT from the Project; settlement and billing data that has been reviewed and truedbeen reviewed viewand trueand truedd up with ERCOT settlement data; forward payments received fromfrom ERCOT for the benefrom ERCOT for the ben ERCOT for the benefit of Buyer that are not due to Seller pursuant to this Agreement, including any nt to this Agrt to this Agreementeement, includ, generator revenue benefits such as the Operating Reserve Demand Curve he Operating Reserve DemOperating Reserve “ORDC”and/or Congestion Revenue Rights ue Rights Auction Revenueghts Auction RAuction Revenue Distributions (CARD); provide notice of all resource outages, required outage tice of all resource outagof all scheduling information, authorizations and corresponding updates to Buyer;authorizations and corresponzations and all required meter data, telemetry,required meter data, telemeed meter data, t and settlement data, via ICCP SCADA data,toatata,,toBuyer’s Buyer’s Buyer’s designee and ERCOT,according to ERCOT desdesignee an Protocols,associated operating guides, and the Operating Procedures;sociated operating guidesed operating guid, an provideall information requestedby Buyer providprovideall informaall inor Buyer’s designee so that Buyermay reviewnee so that thaBuyeruyemay scheduling and billing/settlement activities of Seller as they apply toivities of Seller s of Seller as they applas the Buyer obligations under this Agreement; install, or cause to be installed, all control and communication instainstall, or equipment to enable the automatic contequipment to enequipment to enable throl of the output of the Project by the QSE;QQSE; provide to Buyer next hour and next day output forecasts, at least by 0600 hours CPT 24 hours in advalealeast by 06nce for the next day and for up to seven days; andseseven da shall install andtelemeter to ERCOT the site-specific meteorological information that ERCOT requires in accordance with ERCOT Protocols. This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 22 Exhibit 'A' 3.12Sales for Resale. All Product delivered to Buyer hereunder shall be sales for resale, with Buyer reselling such Product for use in satisfying its native load requirements or that of other ERCOT market participants. Buyer shall provide Seller with documentation reasonably requested by Seller for regulatory or tax purposes to evidence that the deliveries of Product hereunder are sales forsale resale. 3.13Operating Procedures. Seller and Buyer shall use Commercially Reasonable Efforts to develop written operating elop written operating written operating procedures for the Project (“Operating Procedures”)consistent with the criteria set forth inh the criteria set forth riteria set foinin Exhibit J. These Operating Procedures shall be in place no later than twelve (12) months prior to n twelve (12) months prior tove (12) months p the Commercial Operation Date. Such Operating Procedures shall be in accordance with s shall be in accordance wbe in accordanc ERCOT Protocols, associated operating guides and Prudent Operating Practices under which the perating Practices under whiperating Practices under wh Parties will perform their respective obligations under this Agreement.Upon written mutual s Agreement.Agreement.Upon writteUpon agreement, Seller and Buyer may update the Operating Procedures without amendment to this Procedures without amendcedures withou Agreement. Any disputes with respect to the Operating Procedures shall be resolved in perating Procedures shall bProcedures accordance with the terms set forth in ARTICLE 17.. 3.14Standards of Care. Seller shall comply with all applicable requirements of Applicable Law, mply with all applicable requwith all applicable ERCOT, TREandNERC relating to the Projecting to the Project (includinthe Project (inct (including those related to construction, ownership and/or operation of the Project). of the Project).the Project). Each Party shall perform all geneh Party shall perform all gty shall perforration, scheduling and transmission services in compliance with all applicable ance with all applicable opeith all applicaboperating policies, criteria, rules, guidelines, tariffs and protocols of ERCOTand Prudent OperatingPractices.cols of ERCOTCOanddPrudentP Seller agrees to abide by all (i) NERC, TREandERCOTreliability Seller agreesSeller agrees to abid requirements, including all such reliability requirementsfor generator owners and ments, including all such , including all generator operators,and (ii) all applicable rerator operators,perators,and (ii) aand (iill aquirements regarding interconnection of the Project, including the requirements of thoject, including the requiremluding the ree interconnected Transmission Operator. 3.15Curtailment. Curtailment. tailment. Except as set forth in thisSection 3.15, Seller shall not curtail or interrupt deliveries of Net Output from the interrupt deliverrupProject as required by this Agreement for economic reasons of any type whatsoever; provided economicSeller’s obligation to generate, deliver and sell to Buyer the dedeliverNet Output shall be excused during Seller Excuse Hours. Buyer shall have no obligation to purchase Buyethe Net Output to the extent of a Seller Curtailment. This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 23 Exhibit 'A' Seller shall reduce generation from the Project as required pursuant to a Buyer Curtailment Order, provided thatBuyer shall pay Seller the Contract Price for Deemed Delivered Energy associated with a Buyer Curtailment Period. Buyer shall notify Seller, by telephonic communication or other method as may be set forth inthe Operating Procedures, of a Buyer Curtailment Order,but in no event later than thirty (30) minutes prior to the effectiveness of such Buyer Curtailment Order.In all cases all involving a Buyer Curtailment, Seller shall reduce the Net Output delivered bySeller to bySellerlle Buyer at the Delivery Pointto the level stated by Buyer. Except for aBuyer Curtailment,er Curtailmentmen, in no event will Buyer curtail or interrupt deliveries of Net Output from the Project as om the Project as Project a required by this Agreement for economic reasons of any type whatsoever. During any tsoever. During any er. During any such period where Buyer fails to take the Net Output,Buyer shall have the right to make have the right the right to make to make available, for sale,for resale or any other purpose, any rights and commercial benefits and commercial benefits mmercial benefits associated with Product,including Environmental Attributes,Capacity Attributes,and es,Capacity Attributes,apacity Attributean ancillary services,to the extentpermitted under Applicable Law or ERCOT Protocols.e Law or ERCOT ProtocolsLaw or ERCOT Protoc Seller shall at all times during the Term comply with the directives of Term comply with the direTerm comply with th the Transmission Operator and the Interconnection Provider given pursuantto the ection Provider given pursn Provider gi Interconnection Agreement. Seller will notify Buyer, as soon as reasonably practicable, y Buyer, as soon as reasonabas soon as re but in no event later than thirty (30)minutes, by telephonic communication or other nutes, by telephonic commuutes, by telephonic co methodas may be set forth in the Operatinting Proceduresg Procedures, of a System Curtailment Order,Proced, of a System upon receipt of such direction by Seller (or Seller’s agent) as the market participant eller (or Seller’s agent) as or Seller’ registered by Transmission Operator for the Project. In all cases involving a System tor for the Project. he Project. In all Curtailment, Seller shall reduce the Net Outthe Net Output delivered byNet Output deliveput delivered by Seller toBuyer and any co- offtaker, if applicable, at the Delivery Point on a non-discriminatory, pro-rata basis to the Delivery Point on a nonelivery Point on -disc level stated by the Transmission Operator, mission Operator, the Intersion Operator, ththe Interconnection Provider or Buyer, as applicable. Buyer shall have no obligation to purchase theNet Output to the extent of a l have no obligation to purchno obligation to SystemCurtailment. If Seller fails to comply with the If Seller fails to comply wSeller fails to cocurtailment directives and instructions set forth in Section 3.15(c) and Section 3.15(d), Section n3.15(c)3.15(c) and anddd SectionSeSeller shall be liable to Buyer for any penalties or fines imposed on Buyer by anor fines imposed on Buyefines imposed ony Governmental Authority and any actual direct damages suffered by Buyer as a result damages suffered by Buyer ages suffered by Bof Seller’s failure to comply, reduced by any amount Buyer is able to realize for the sale ofount Buyer is able to realizeyer is able to r any Net Output delivered in violation of the Buyer Curtailment Order or the Systemhe Buyer Curtailment Oruyer Curtailmen Curtailment Order, as applicable. Notwithstanding the foregoing, Seller’s failure to comply with a Notwithstanding the foregwithstanding the Buyer Curtailment Order or System Curtailment Order or System Curor System Curtailmentshall not be a Seller Event of Default; provided, Seller’s failure to reimburse Buyer for any such fines failure to reimfailure to reimburse or penalties actually incurred by Buyer as a result of Seller’s failure to comply shall result of Seresult of Seller’s be considered a default under this Agreement governed by Section 7.1(a)(i). governedgoverned by Se Upon Buyer’s reasonable request, Seller shall promptly provide to Buyer, or permit Buyer to audit and exBBuyer,amine during normal business hours, any additional and supporting documentation, includidng the Project’s operating data and This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 24 Exhibit 'A' SCADA data necessary for Buyer to audit and verify any matters set forth in Section 3.15. 3.16Outage Notification. Seller shall schedule Planned Outages for the Project in accordance cor withPrudent OperatingPractices and with the prior written consent of Buyer, which uyer, whwh consent maynot be unreasonably withheld,conditionedor delayed. The Parties The PartiePart acknowledge that in all circumstances, Prudent OperatingPractices shall dictate when all dictate when ctate whe Planned Outages should occur. Seller shall notify Buyer of its proposed Planned Outage sed Planned Outage lanned Outage schedule for the Project for the following calendar year by submitting a written Planned tting a written Planned a written Planned Outage schedule nolater than October 1stofthe year prior to each year of the Delivery each year of ar ofthe Delivery Delivery Term. The Planned Outage schedule is subject to Buyer’s approval, which approval may proval, which approval mayal, which approva not be unreasonably withheld, conditionedor delayed.Buyer shall promptly respond Buyer shall promptly resposhall promptly r with its approval or with reasonable modifications to the Planned Outage schedule and the Planned Outage scheduthe Planned Outage schedu Seller shall use its best efforts in accordance with Prudent OperatingPractices to ithhPrudent OperatingPrudent OperatingPra accommodate Buyer’s requested modifications. Seller shall contact Buyer with any Seller shall contact Buyeller shall con requested changes tothe Planned Outage scheduldule if Seller believes the Pe if Seller believes Seller believethe Project must be shut down to conduct maintenance that cannot cannot be delayed until theannot be delayed untbe delayed until the next scheduled Planned Outage consistent with Prudent OperatOperatingratingingPractices. Seller shall not change its Practices. Seller Planned Outage schedule without Buyer’s approval, notuyer’s approval, notapproval,to be unreasonably withheld, to be u conditionedor delayed. Seller shalluse ithalluse its best efforts in its best effos best efforts in accordance with Prudent OperatingPractices not to schedule Plannedule Planned Outages durinPlanned Outagesd Outages during the months of June, July, August, and September.Seller shall not substitute Energy from any other source for the er shall not substitute Energr shall not substitute E output of the Project during a Planned Outage. g a Planned Outage. Planned Outage. In addition to PlannedOutages, Seller shall use Commercially addition to on toPlannedPlanneOuta Reasonable Efforts to promptly notify Buyerof any Forced Outage lastingfor more than s to promptly notify mptly notify BuyerBu sixty (60) consecutive minutes. Such Noticesecutive minutes. Such ve minutes. SucNoti shall contain information describing the nature of the Forced Outage, the beginninge Forced Outageed Outage, the beginntheb date and time of such Forced Outage, the expected end date and time of such Forcedend date and time of such nd date and time o Outage, the amount of Energy that Seller expects will be provided during such Forced Outage, and any other information will be provided duringl be provided reasonably requested by Buyer. With respect to any such Forced Outage, Seller shall onably requested by requested by BuyerB provide Buyerwith such Notice by any reasonable means requested by Buyer, including rovideBuyeryerwith such sucNot bytelephone or electronic mail.bytelephone or electronic elephone or elect 3.17.17.17Operations Logs and Access Rights. Operations LoOperations Logs and Seller shall maintain a complete and accurate log of all material operations and maintenance information on a daily baoperations ansis. Such log shall include, but not be limited to, information on power produbbe limitection, fuel consumption, efficiency, availability, maintenance performed, Planned Outages, Forced Outages,System avavailab Curtailment Orders, results of inspectiurtons, manufacturer recommended services, replacements, electrical characteristics of the generators, control settings or adjustments This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 25 Exhibit 'A' of equipment and protective devices. Seller shall maintain this information in accordance with Applicable Law, ERCOT Protocols, and Prudent Operating Practices, as applicable. In case of conflict, Applicable Law shall prevail. Upon request by Buyer, Seller shall provide material operations and maintenance information electronically to Buyer within five (5) days of Buyer’s request. Buyer, its authorized agents, employees and inspectors shall have the all have ve right of ingress to and egress from the Project during normal business hours upon ss hours upupon reasonable advance Notice and for any purposes reasonably connected with this nected with this with thi Agreement;provided, that Buyershall observe all applicable Project safety rules that ect safety rules that afety rules that Seller has communicated to Buyer; provided further, that Buyershall indemnify Seller shall indemnify Seller indemnify Seller for the actions of its authorized agents, employees, contractors, inspectors and other ors, inspectors and otpectors andher er representatives for harm or liabilities caused by Buyer, such authorized individuals or ch authorized individuals othorized individu such activities while such authorized individuals are at the Site or theProject.Site or thethProjectojec. 3.18Availability Forecasting. Seller shall provide Buyerwith forecasts of the delivery of Energy with forecasts of the delivrecasts of the under this Agreement as described belowand as provided in the Operating Procedures.nd as provided in the nd as provided in the Opera Such availability forecasts shall include the updated status of all Projectequipment that the updated status of all updatPro may impact availability. Seller shall use use Commercially ReasonaCommercially Reasonable Efforts to forecast Commerci the delivery of Energy under this Agreemengreement accurately and to t accurately and to transmit such information t accurately in a format reasonably acceptable to Buyer.Buyerand Seller shall agree upon reasonable e to Buyeruyer..BuyerBuyerand Sellerand changes to the requirements and procedures and procedures set forth procedures set set forth below from time-to-time, as necessary to accommodate changes to operating and scheduling procedures of Buyer.changes to operating and schanges to operating No later than: (i) the earlier of Septemblater than: (i) the earlier of Shan: (i) the earer 1 preceding the first Contract Yearor forty-five (45) Days prior to the commencement of the first Contract Year; and (45) Days prior to the commays prior to the (ii) September 1 of each calendar year for ev1 of each calendar year for ach calendar yeery subsequent Contract Year, Seller shall provide to Buyera non-binding forecast of uyera nona non--binding forecasbinding fothe hourly delivery of Energy under this Agreement for an average day in each montt for an average for an average dday in eacayh of the following calendar year in a form reasonably acceptable to Buyer.bly acceptable to cceptable toBuyerBuye. Ten (10) Business Days before the commencement of the first Contract Ten (Ten (10) Bu Year, and thereafter ten (10) Business Days before the beginning of each month during Year, and thereafter ten (1, and thereafter theDelivery Term, Seller shall provide to Buyera non-binding forecast of the hourly theDelivery TermDelivery Term, Sell Energy deliveries under this Agreement for each day of the following month in a form EEnergy deliveries undnergy deliver reasonably acceptable to Buyer.reasonably acreasonably accepta On a daily basis, commencing the day before the Commercial Operation Date, a day-ahead estimate of availableProjectCapacityOperation (the “Day-Ahead Availability NoticeAAvailab”)for each day. Each Day-Ahead Availability Notice shall clearly identify, for each hour, Seller’s forecast of dentDelivered Energy for such day. If Seller fails to provide Buyer with a Day-Ahead Availability Notice, then (i) until Seller provides a This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 26 Exhibit 'A' Day-Ahead Availability Notice, Buyer may rely on the most recent day-ahead forecast submitted by Seller to Buyer. 3.19Weather Station. No later than sixty (60) Days prior to the Commercial Operation Date, on Seller, at its own expense, shall install and maintain at least one stand-alone stand-aa meteorological station at the Site to monitor and report the meteorological data required data requiredquir under Section 3.19(b). Seller shall maintain the meteorological station as necessary to as necessary to ecessary t provide Project data. Upon Commercial Operation, and continuing through the end of theg through the end of thegh the end of the DeliveryTerm, Seller shall record and maintain the following data:data: real power production by the Project for each hour;Project for each hProject for each hour;ou changes in operating status and maintenance events;tus and maintenance events;and maintenance e any unusual conditions found during inspections;tions found during inspectionions found during insp any significant events related to the operation of the Project;nt events related to the opeents re and one (1) minute and hourlytime-a(1) minute and inute and hhourlyourlytimeveraged measurements from data samples at ten (10) seconds or ten (10) seconds or greaten (10) secondsgreater frequency for the following parameters at the Project: total globtheProjectProject: total global : total gal horizontal irradiance, total global radiation within the plane of the array, air temperature, relative humidity,within the plane of the arrathe plane of the precipitation, barometric pressure, backation, barometric pressure, bbarometric pres of module surface temperature and other pertinent meteorological conditions.pertinent meteorological cont meteorolo Buyershall have real-time access toBuyeBuyershall have realshall have t the required meteorological data as prescribed in the Operating Procedures.Seller shall provide Buyera report within thirty din the n theOperating ProcedurOperating Pro (30) days after the end of each month that ays after the end of each fter the end of emprovides the foregoing information for such month as well as any other additional information that Buyerreasonably requests nth as well as any other well as any o regarding the operation of the Projectthat is egarding the operation of thing the operationcollected and maintained by Seller in the ordinary course of Projectoperations. ordinary course of nary course of ProjectPr Seller shall make available to Buyerall data from any weather Sel monitoring portals Seller elects to install at the Site.monitoring pmonitoring portal 3.20.20.20Change in Law. Change in L If during the Term of this Agreement therIIff durie occurs any material change (including promulgation, enactment, repeal and amendmentit) in the application of Applicable Law This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 27 Exhibit 'A' including, without limitation, a federal renewable portfolio standard and any material change by any state Governmental Authority regarding a Party’s authority to sell or purchase Environmental Attributes and such government action either (a) renders this Agreement illegal or unenforceable, (b) would render performance by a Party illegal or unenforceable; or (c) eliminates, abolishes or makes illegal the trading or transferring of Environmental Attributes; or there are changes to the definitions, mechanisms and processes for the sale and delivery of live Environmental Attributes under the Texas Renewable Portfolio Standard (or any successor or successor sor replacement product) (a “Program Change”), or PUCT Substantive Rule §25.173, then §25.173, thenth promptly after any such government action or Program Change and Notice by the affected Party the affected Party fected Part to the other Party, the Parties shall enter into good faith negotiations to make the minimum make the minimum e the minimum changes to this Agreement necessary to render this Agreement in compliance with any such mpliance with any such ce with any such government action or Program Change and shall take such other actions in compliance with thens in compliance with thmpliance with thee terms and conditions of such government action or Program Change while preserving to the ange while preserving to thwhile preserving maximum extent possible the benefits, burdens and obligations of each Party under this ons of each Party under ns of each Party und Agreement; provided, however, that if any such government action or Program Change would action or Program Change action or Program Change require any modification to the Project, and only if Seller and Buyer agree to amend the ller and Buyer agree to aer and Buyer agree Agreement in order to meet the requirements of such government action or Program Change, government action or Progrrnment action Seller shall implement such modifications to its sole satisfaction. The costs for such agreed upon atisfaction. The costs for suon. The costs modifications will be the responsibility of Seller. The following shall not be considered a Changed a Change in Law or be subjnge in Law in Law or be subject to this Section 3.20: (i) any change in Applicable Law with respect tospect to Tax Attributes whic Tax Attributes which are or will be generated Tax Attribute by the Project; (ii) any outright grants ants of money relating in of money relating in any way to the Project or f money relatin Environmental Attribute; and (iii) any Environmental Attributes that the Buyer is not entitled to ny Environmental Attributesy Environmental A pursuant to the provisions of Section 3.8(a). ion3.8(a)3.8(a). 3.21Contract Quantity and Guaranteed Energy Production. nd Guaranteed Energy Prodaranteed Energ The quantity of Delivered Energy that Seller expects to be able to Thequantity of Deliverequantity of D deliver to Buyer during the first Contract Year is274,913MWhuyer during the first Contracuyer during the first Co(“Contract Quantity”). The Contract Quantity shall be reduced by ract Quantity shall be reducct Quantity shall be.50%during each subsequent Contract Year. Throughout the Delivery Term, Seller shall beghout the Delivery Term, Sethe Delivery Te required to deliver to Buyer no less than the Guaranteed Energy Production (as defined below) for thetwenty-four (24) Guaranteed Energy Prodnteed Energy consecutive calendar month period immediately pronsecutive calendar month putive calendar meceding the end of each Contract Year during the Delivery Term (“during the Delivery Termng the Delivery Performance Measurement Period”), commencing at the ndnd end of the second (2end of the secend of the second (2) Contract Year. “Guaranteed Energy Production”or “GEP” means an amount of Energy, as measured in MWh, as described by the following means an ammeans an amount o formula:formula:formula: Guaranteed Energy Production = (160% * Contract Quantity in MWh) * \[(hours in Performance Guar Measurement Period M– Seller Excuse hours in Performance Measurement Period) / hours in Performance Measurement Period\] If Seller has a GEP Failure, then within forty-five (45) days after the This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 28 Exhibit 'A' last day of the last month of such Performance Measurement Period, Seller shall promptly notify Buyer of such failure. Seller may cure the GEP Failure by providing to Buyer an amount of Delivered Energy as set forth in the formula below (“GEP Cure”). GEP Cure = (90% * Contract Quantity in MWh) * ((hours in next following Contract Year – Seller Excuse hours in next following Contract Year) /hours in next following Contract Year) Yea If Seller fails to qualify for the GEP Cure for a given Performance n Performanceman Measurement Period, Seller shall pay, to Buyer,GEP Damages calculated pursuant to lated pursuant to pursuant t Exhibit D. If Seller provides a GEP Cure or pays GEP Damagesfor the Contract Damagessfor the Contract for the Contract Years in a particular Performance Measurement Period (“od (“Cured Performance Cured PerformCured Performance Measurement Period”), then for purposes of calculating the Guaranteed Energy ating the Guaranteed Enerhe Guaranteed Production in the following Performance Measurement Period, the amount of Delivered t Period, the amount of Delit Period, the amount of De Energy plus Deemed Delivered Energy in the second Contract Year of the Cured econd Contract Year of thond Contract Year Performance Measurement Period, which is also the first Contract Year of the following the first Contract Year of thfirst Contract Y Performance Measurement Period (“Shared Contract Yearontract Yeart Ye”), shall be deemed equal to ”), shall be deshal the greater of(X) the Delivered Energy foy for the Shared Contract for the Shared Conr the Shared Contract Year, subject to adjustment for Seller Excuse hours, or (Y) eighY) eighty percent (80%) of Cghty ty percent (80%) of Contract Quantity in the Shared Contract Year, where X and Y are calculated as follows:d Y are calculated as followse calculat X = (Delivered Energy in Shared Contract Year ) red Contract Year ) * (hours in Shntract Year ) * (hou* (hours in Shared Contract Year / (hours in Shared Contract Year– Seller Excuse hours in Shared Contract Year)) or; er Excuse hours in Shared Contrase hours in Shared Y = 80% * Contract Quantity in Shared Contract Year uantity in Shared Contract Year ty in Shared Contrac The Parties agree that the damages sue Parties agree that the damaies agree that thstained by Buyer associated with Seller’s failure to achieve the Guaranteed Energy Production requirement o achieve the Guaranteed ve the Guaranmaybe difficult or impossible to determine, or thpossible to determineble to determine, or that obtaining an adequate remedy would be unreasonably time consuming or expensive,and thy time consuming or expensy time consuming or eerefore agree that Seller shall pay the GEPDamages to Buyer as liquidated damagesomages to Buyer as liquidatedges to Buyer as liqur, in the alternative, Seller shall provide compensation in a manner as agreed to by botnsation in a manner as agreeon in a manner ash Buyer and Seller. In no event shall Buyer be obligated to pay GEP Damages.obligated to pay GEP Damagd to pay GEP D After the GEP Cure period expires, AftAfter theand if Seller has not achieved the GEP Cure, Buyer shall provide Notice to SellGEP Cure, BuGEP Cure, Buyer shaller in writing of the amount of the GEP Damages, if any, which Seller shall pay within sixty (60)days of receipt of the Notice Damages, if aDamages, if any, wh (the(the(the““Cure Payment PeriodCurePCure Paym”). If Seller does not pay the GEP Damages within the Cure Payment Period, then Buyer may, at its option, declare an Event of Default pursuant to Payment Payment Period Section7.1(b)(iv) within ninety (90) days following the Cure Payment Period. If Buyer Section7.1(b does not (i) notify Seller of the GEP Failure dodoes not or (ii) declare an Event of Default pursuant to Section 7.1(b)(iv)within the ninety (90) day tto Sectperiod, if Seller has failed to pay the GEP Damages, then Buyer shall be deemed to have waived its right to declare an Event of This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 29 Exhibit 'A' Default based on Seller’s failure with respect to the Performance Measurement Period which served as the basis for the Notice of GEP Failure, GEP Damages, or default. ARTICLE 4 PROJECT DESIGN AND CONSTRUCTION 4.1Project Development. Seller, at no cost to Buyer shall: Design and construct the Project. Seller shall have sole responsibility for the development, design and the development, design aevelopment, des construction of the Project and Seller’s Interconnection Facilities and all related metering Facilities and all related metFacilities and all related m facilities, including the obligation to obtain all necessary permits and execute all necessary permits and exeecessary permits and necessary agreements with the Interconnection Provider and Transmission Operator Provider and Transmissionovider and Transm necessary for the ownership, construction, operation and maintenance of the Project and ration and maintenance of thand maintenan delivery of Net Output in accordance with the he terms hereof. Seller shahe terms hereof. Selleterms hereof. Seller shall be responsible for filing all interconnection requests, including the ERCOT Resource Asset Registration luding the ERCOT Resourceng the ERCOT Re Form, with ERCOT for interconnecting the Project with the Transmission Operator’s ng the Project with the Tre Projec System. Acquire all Governmental Approvals Governmental Approvalmental Approvas andand other approvals necessary for the construction, operation, and maintenance of the Project.and maintenance of the Projd maintenance of Complete all environmental impact studies necessary for the plete all environmental all environme construction, operation, and maintenance of tion, and maintenance of tnd maintenancthe Project,including all environmental analysis for the Project and related interconnection facilities.Project and related interconned related in At BuyerAt BuyerAt Buyer’’’s request, provide to Buyer Sellers reqs request, p’s electrical specifications and design drawings pertaining to the Project.gn drawings pertaining to therawings pertaining Within fifteen (15) days aftereach semi-anniversary of theEffective Within Within fifteen Dateuntil the Commercial Operation Date, Dateuntil the Commercial until the Commprovide to Buyer a Semiannual Progress Reportand agree to regularly scheduled meetReportortand agree to reguand agree toings between representatives of Buyer and Seller to review such reports and discuss SellerSeller to reviewSeller to review such r’s construction progress. The Semiannual Progress Reportshall identify the milestones aProgress RepoProgress Reportshand indicate whether Seller has met or is on target to meet such milestones.target to mtarget to meet suc Provide access to Buyer, its authorized agents, employees and inspectors for purpose of inspecting the Projectininspector’s construction site or on-site Seller data and information pertaining to the Project and induring normal business hours upon reasonable advance Notice. This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 30 Exhibit 'A' Provide QSE services. 4.2Guaranteed Commercial Operation. Seller shall causetheProject to achieve Commercial Operation by the Guaranteed Commercial Operation Date, unless extended in accordance with Section S 4.2(b). Permitted Extensions to the Guaranteed Commercial Operation DateOperation Dateation Dat are asfollows: The Guaranteed Commercial Operation Date may be extended on Date may be extended e may be extended on a day for day basis for a cumulative period equal to no more than one equal to no more than one to no more than one hundred eighty(180) days if Seller has used Commercially Reasonable ed Commercially Reasonabmmercially Rea Efforts to have the Project physically interconnected to the Transmission erconnected to the erconnected to the Transmiansm Operator’s Systemand to complete all electric interconnection upgrades, if lectricectriinterconnection nterconnectiouupg any, but such interconnection or electric interconnection upgrades cannot be ic iinterconnection nterconnectiouupgrades completed by the Guaranteed Commercial Operation Date and Seller has mmercial Operation Date aial Operation worked diligently to resolve the delay (“delay (“delTransmission DelayTransmission Delayansmission ”); The Guaranteed Commercial Operation Date may be extended eed Commercial Operation Commerc on a day for day basis for a cumulativefor a cumulative period equumulative p period equal to no more than one hundred eighty (180) days if Seller hadays if Seller has used comif Seller has useds used commercially reasonable efforts to obtain permits necessary for the cnecessary for the constructioary for the constronstruction and operation of the Project, but is unable to obtain such permits ao obtain such permits and obtain such permnd Seller has worked diligently to resolve the delay (“elay (““Permitting DelayPermitting DelPermitting Delay”); and”); The Guaranteed Commercial Operation Date may be extended The GuaranteeThe Guaranteed Com on a day for day basis for a cumulativeday for day basis for a cuday basis period equal to no more than one hundred eighty (180) undred eighty (180) d eighty (180) days in the event of Force Majeure (“dadays inForce Majeure ExtensionExtensioExtension”); provided that Seller works diligently to resolve the effect of the ”); prov”); provided that Force Majeure and provides evidence of its efforts promptly to Buyer upon Force Majeure andForce Majeure and prov Buyer’s writtBuyer’s writtBuyer’s written request.enen reque Notwithstanding the foregoing, if Seller claims more than one NotwNotwithsta Permitted Extension under Section 4.2(b), suchPermitted Extension undmitted Extension extensions cannot cumulatively exceed one hundred eighty (180) days and all Permittone hundred eone hundred eighty (1ed Extensions taken shall be concurrent, rather than cumulative, during any overlapping days. rather than cumrather than cumulat If Seller claims a Permitted Extension, Seller shall provide Buyer with ninety (90)ninety (90)days’ Noticeprior to the GuaranteedCommercial Operation Date, which Notice must clearly identify the PerNNotice mitted Extension being claimed and include information necessary for Buyer to verify thnforme length and qualification of the extension; provided that in the case of a Force Majeure Extension, if ninety (90)days is This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 31 Exhibit 'A' impracticable or impossible, Seller shall provide Notice as soon as possible after the occurrence of the Force Majeure event. 4.3Cure Period and Delay Damages. Seller shall causethe Projectto achieve the Commercial Operation by at theGuaranteed Commercial Operation Date. If the Commercial Operation Date occurs Date occc after the Guaranteed Commercial Operation Date after giving effect to Permitted to Permittedmitt Extensions, then Buyer shall be entitled to draw upon the Project Development Securitylopment Securitynt Securit for liquidated damages equal to Daily Delay Damages for each day or portion of a day or portion of a day rtion of a day that (1) the Commercial Operation Date occurs after the Guaranteed Commercial uaranteed Commercial eed Commercial Operation Date after giving effect to Permitted Extensions for up to a total of one for up to a total of one to a total of one hundred eighty (180) days (“Project Cure Period”). Each Party agrees and acknowledges that the damages that Buyer es that the damages that Bes that the damages that would incur due to Seller’s delay in achieving the Guaranteed Commercial Operation Guaranteed Commercial OGuaranteed Commerc Date maybe difficult or impossible to determinewith certainty and the Daily Delay ewith certainty and the Dwith certainty Damages are an appropriate approximation of such damages.uch damages.mage 4.4COD Conditions. The Parties shall cooperate to facilitate Seller’s testing of the Project necessary to satisfy the eller’s testing of the Projectsting of the COD Conditions.Seller shall provide Buyer Notice Buyer Notice of the date SelNotice of the daof the date Seller believes that the Project has achieved Commercial Operation along with along with written confirmawith written conwritten confirmation (substantially in the form attached hereto as Exhibit H) by an officer an officer of Seller, authon officer of Selleof Seller, authorized to bind Seller and who is familiar with the Project, of the satisfaction or occurrence of all COD Conditions. Buyer shall satisfaction or occurrence oaction or occurr have up to ten (10) Business Days to reviewess Days to review such eays to review such evidence and raise any Commercially Reasonable objection to Seller’s satisfaceller’s satisfaction of any ofsatisfaction of ation of any of the COD Conditions, provided, however, that such Notice shall be deemed accepted by Bube deemed accepted by Buyemed accepted yer if Buyer fails to object within such time period. Seller may provide Notice of completionprovide Notice of completiode Notice of com of the COD Conditions on an individual and incremental basis pending resolupending resolution of any obending resolution otion of any objections, provided, however, that Buyer shall in all cases have up to ten (10) Business Days to reto ten (10) Business Days tn (10) Business Dview and object to each Notice, and such Notice shall be deemed accepted by Buyer if Buyer famed accepted by Buyer if Bccepted by Buyeils to object within such time period. The COD Conditions are: s are: all necessary and material permits, all necconsents, licenses, approvals, and authorizations required to be obtained by Seauthorizations authorizations requireller from any Governmental Authority to construct and/or operate the Project in coconstruct andconstruct and/or ompliance with Applicable Law and this Agreement have been obtained and are in full force and effect;AgreemeAgreement have Seller is in compliance with this Agreement in all material respects; TheProject is available to commence normal operationsand able to be delivered to Buyer at the Delivery Pointin accordance with Seller’s Operating This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 32 Exhibit 'A' Procedures, the construction contract, and applicable manufacturers’ warranties; Seller is obligated under, and in material compliance with, the Interconnection Agreement; The Project is fully interconnected to the Transmission Operator’s pe System, has been fully tested, has achieved initial synchronization, and has been has bb successfully operated at a generation level acceptable to the Transmission Operator, ion Operatorerat without experiencing any abnormal or unsafe operating conditions on any interconnected ny interconnected rconnecte system; Seller has completed and met all testing requirements of the Project and ements of the Project and of the Project and Seller’s Interconnection Facilities required by the Interconnection Agreement;tion Agreement;Agreement; Seller has used Commercially Reasonable Efforts to timely make, onable Eonable Efforts to timely mfforts to timely where applicable, all necessary governmental filings and/or applications for renewable s and/or applicaand/or applications for tionsre energy credit accreditation and registration; Seller has made all other arrangemenrangements necessary to delrangements necessary ts necessary to deliver the Product to the Delivery Point;and Seller has demonstrated the reliabilrated the reliability of the Phe reliabilityity of the Project’s communications systems and communication interface with Buyer’s QSE.face with Buyer’s QSE.ith Buyer’s QSE ARTICLE 5 ARTICLE 5ARTICLE 5 METERING AND MEASUREMENT ETERING AND MEASURRING AND ME 5.1Project Metering. The Project will be installed utilizing the existiinstalled utilizing the existiinstalled utilizing the ng interconnection agreement associated with the wind project owned by Capricorn Ridge Wind IV,LLCned by Capricorn Ridge Wind by Capricorn Ridg(the “Wind Project”). The Project will be registered with ERCOT as a Split Generatiwith ERCOT as a Split GenERCOT as a Splion Resource in accordance with ERCOT Protocols 10.3.2.1 through 10.3.2.1.6. rough 10.3.2.1.6. 0.3.2.1.6. 5.2Metering System. Metering System. ering System. The Seller shall ensure the Metering Systems,The Seller shall ensuThe Seller shall ensure th including all equipment required to provide ERCOT and Buyer, or their agents and successoERCOT and BuyeERCOT and Buyer, or trs, with a Real-Time MW signal of the Split Generation Resources, are designed, located, Generation ResGeneration Resourceconstructed, installed, owned, operated and maintained in accordance with the Interconnection aintained in accoaintaiAgreement and Prudent Operating Practices in order to measure and record the amount of Energyder to measder t delivered from the Project to the Delivery Point. The meters shall be of a mutually acceptaThe mble accuracy range and type to the Parties, as agreed upon in the Operating Procedures. The Metering Systems will be installed and owned, This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 33 Exhibit 'A' operated and maintained in accordance with the terms of the Interconnection Agreement.Buyer shall, in no way, be responsible, financially or otherwise, for the Project’s Metering Systems. 5.3Inspection and Adjustment. The Partiesshall inspect and test all meters at such times as will a conform to Prudent OperatingPractices, but not less often than every two (2) Contract 2) Contn Years.Seller shall contact Buyer for the purpose of witnessing and verifying proper rifying propeprop inspection and adjustment, if any, to meters. If any seal securing the metering is found broken, if the Metering oken, if the Metering if the Metering System fails to register, or if the measurement made by a metering device is found upon ing device is found upon vice is found upon testing to vary by more than one percent (1.0%) from the measurement made by the measurement made by thesurement made by the standard meter used in the test, an adjustment shall be made correcting all measurements de correcting all measuremeecting all measu of Energy made by the Metering System during: (i) the actual period when inaccurate he actual period when inacche actual period when inac measurements were made by the Metering System, if that period can befthat period can be determinthat period can be det determined to the mutual satisfaction of the Parties; or (ii) if such actual period cannot be determined to the tual period cannot be determperiod cannot mutual satisfaction of the Parties, the second half of the period from the date of the last half of the period from the dthe period fro test of the Metering System to the date such failure is discovered or such test is madech failure is discovered or sh failure is discovered (“Adjustment Period”). If the Parties are unable to agree on the amount of the are unable to agree on e una adjustment to be applied to the Adjustment ment Period, the amount of Period, the amount of the adjustment shall be Period, th determined: (A) by correcting the error if error if the percentage of the percentage of error is ascertainable bythe percent calibration, tests or mathematical calculation; or (B) calculation; or (B) if not soulation; or (B) if nif not so ascertainable, by estimating on the basis of deliveries madde under similar conditions e under similar conditions during the period since the last er similar condit test.No later thanthirty (30) Days after the determination of the amount of any y (30) Days after the dete30) Days after t adjustment, Buyershall pay Seller any addi pay Seller any additional Seller any addittional amounts then due for deliveries of Energy during the Adjustment Period or, conversdjustment Period orment Period or, conver,ely,Buyershall be entitled to a credit against any subsequent payments for Energy.uent payments for Energyyments for Ene. Buyerand its representatives shall be entitled to be present at any test, Buyeruyerand its representand its repr inspection, maintenance, adjustments and re, maintenance, adjustmentsmaintenance, adjuplacement of any part of the Metering System relating to obligations under this Agreement.relating to obligations underng to obligations ARTICLE 6 EARLY TERMINATION 6.111Early Termination. Early TerminaEarly Termination. In addition to applicable termination rights under Sections 7.2 and 15.1, this Agreement may be terminated prior tothis AgreemenAgr the expiration of the Term as follows: By Seller if an Interconnection Agreement in form and substance satisfactory to Seller, in its sole discretion, is not executed on or before the Guaranteed Commercial Operation Dateprovidedthat,in each This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 34 Exhibit 'A' case, Seller shall give Buyer Notice of such termination within fifteen (15) Days after such date; By Seller in the event that Seller has not obtained the necessary fee, leasehold or other title to or interest in the Site and all Governmental Approvals necessary to construct and operate the Project in roj the manner contemplated by this Agreement and which are final and no nal and nd longer subject to appeal or legal challenge, on or before the Guaranteed he Guaranteedante Commercial Operation Dateprovidedthat Seller gives Buyer Noticeof such er Noticeiceof such of suc termination within fifteen (15) Days after such date; By Seller if all approvals of its management and board of anagement and board of ent and board of directors (or equivalent governing body) required for the execution, delivery d for the execution, deliverythe execution, de and performance of this Agreement have not been granted on or before thebeen granted on or before granted on or bef Guaranteed Commercial Operation Date providedprovidedprovidedthat Seller shall provide that Seller hat Seller shallllpp Buyer Noticeof such termination within fifteen (15) Days after such date; in fifteen (15) Days after sufifteen (15) Days af and By Buyer, if all approvals by the Denton City Council ll approvals by l approvals by the Dentothe required for the execution, delivery and elivery and performance of try anperformance of this Agreement have not been granted on or before May 30, 2018,efore May 30, 2018May 30, ,providedprovidthat Buyer provide Seller Noticeof such termination within fifteen (15) Days after such date.rmination within fifteen (15)n within fift Notwithstanding any provision ofthis Agreement to the contrary, in the ding any provision ofny provision ofthis Ath event of termination pursuant to this Sectuant to this Section nt to this Sectionion 6.1, the Parties shall be released and 6.1, th discharged from any obligations arising or acigations arising or accruing ns arising or acccruing hereunder from and after the date of such termination and shall not incur any additishall not incur any additionnot incur any onal liability to each other as a result of such termination, provided,howeverprovided,d,howeverhowever, that such termination shall not discharge or relieve , that suchtha either Party from any obligation that has accm any obligation that has accobligation that rued prior to such termination, any indemnity obligations under ARTICLE 11, or the confidentiality obligations set forth in ARTICLE nderARTICLE 11ARTICLE 11, or the c, or 13,which provisions shall survive any termination of this Agreement. provisions shall survive anyrovisions shall surv If the Agreement is terminated by SeIf the AgrIf the Agreemeller pursuant to Sections 6.1(a)(i) through (iii), Buyer shall have the right to retarough (iii), Buyer shall have), Buyer shain the Project Development Security as its sole and exclusive remedy for such termination. For the avoidance of doubt, if this sole and exclusive remedyand exclusive r Agreement is terminated by Buyer pursuant Agreement is terminatedeement is termto Section 6.1(a)(iv), Buyer shall return the Project Development Security to Sellerno laProject DeveloProject Development ter than ten (10) days after the termination date.dadate. This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 35 Exhibit 'A' ARTICLE 7 EVENTS OF DEFAULT 7.1Events of Default. An “Event of Default” shall mean, with respect to a Party that is subject to the Event of Default(the f Defaultt(the(t “Defaulting Party”)the occurrence of any of the following: the failure by such Party to make, when due, any payment hen due, any payment e, any payment required pursuant to this Agreement and such failure is not remedied within re is not remedied within t remedied within ten (10) Business Days after Notice thereof; any representation or warranty made by such Party herein is nty made by such Party hernty made by such Party he false or misleading in any material respect when made or when deemed made ct when made or when deemwhen made or when or repeated, and such default is not remedied within thirty (30) days after remedied within thirty (30)medied within thirt Notice thereof; the failure by such Party to peuch Party to perform anyh Party to perform rform anymaterial covenant or m obligation set forth in this Agreement (except to the extent constituting a s Agreement (except to theeement separate Event of Default) and such failure is not remedied within thirty (30) lt) and such failure is not remuch failure days after Notice thereof; provided, howereof; provided, however, provided, however, that if such failure is not reasonably capable of being remedied within the thirty (30) day cure period, e of being remedied within ting remedied wi such Party shall have such additill have such additional timhave such additonal time (not exceeding an additional ninety (90) days) as is reasonably necessary to remedy such failure, so long days) as is reasonably necesas is reasonably as such Party promptly commences and diligently pursues such remedy.arty promptly commences anromptly commen such Party becomes Bankrupt; such Partysuch Party becom such Party assigns this Agreement or any of its rights suchsuch Party hereunder other than in compliance with ARTICLE 14; hereunder other thahereunder other than in c such Party consolidates or amalgamates with, or merges with such or into, or transfers all or substantially alor into, or or into, or transfl of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the at the tat the time o resulting, surviving or transferee entity resresulting, sfails to assume all the obligations of such Party under this Agreement to which it or its predecessor was a party by susuch Pa operation of Law or pursuant to an agreement reasonably satisfactory to the opera other Party; orot with respect to Seller as the Defaulting Party, the occurrence of any of the following:the fo This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 36 Exhibit 'A' Seller fails to satisfy the Performance Assurance requirements set forth in Section 9.4, as applicable, in each case within five (5) Business Days after receipt of Notice of such failure; if at any time, Seller delivers or attempts to deliver to the Delivery Point for sale under this Agreement Energy that was not generated gen by the Project; or failure by Seller to achieve the Commercial Operation Date by Operation Date by on Date b the Guaranteed Commercial Operation Date,after given effect toPermitted effect toct toPermittedPermitted Extensions or through payment of Daily Delay Damages.es. failure by Seller to achieve the Guaranteed Energy Production aranteed Energy Productioneed Energy Production requirement as set forth in Section 3.21(a) of this Agreement after the one (1) his Agreement after the one reement after the year GEP Cure period Seller (A) has failed to cure the GEP Failure and (B) d to cure the GEP Failure and to cure the GEP Failure a has failed to pay GEP Damages in the time period set forth in Section 3.21(f). me period set forth in Sectione period set forth in S 7.2Remedies; Declaration of Early Termination Date. Date. If an Event of Default with respect to a to a Defaulting Party shall ha Defaulting Party Defaulting Party shall have occurred and be continuing, the other Party (“Non-Defaulting Partyng Partyrty”) shall have the right ”) sha”) shall have the rigto the following: send Notice, designating a day, no earlier than the day such Notice is esignating a day, no earlier ating a day, no ea deemed to be received and no later than twentylater than twenty (20) days han twenty (20) (20) days after such Notice is deemed to be received, as an early termination date of this Agreement (“mination date of this Agreemnation date of thisEarly Termination Date”) on which it shall, as Seller’s sole and excler’s sole and exclusive remeole and exclusiveusive remedy, (i) collect the Damage Payment if any Event of Default arose at any time ult arose at any time prior ose at any time prior to the commencementof the Delivery Term, or (ii) collect the Termination Paymenct the Termination Payment Termination Payt if any Event of Default arose during the Delivery Term; accelerate all amounts owing between accelerate all amountccelerate allthe Parties and end the Delivery Term effective as of the Early Termination Date;fective as of the Early Termive as of the Early withhold any payments due to the Defaulting Party under this withhwithhold an Agreement;Agreement;ement; suspend performance; andsuspe exercise its rights pursuant to Section 9.4 to draw upon and retain Performance Assurance. PerformaPerformance A This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 37 Exhibit 'A' 7.3Termination Payment. The“Termination Payment” shall be the aggregate of all Settlement Amounts plus any or all other amounts due to the Non-Defaulting Party netted into a single amount. Except in the case of a termination of this Agreement by the Non-Defaulting Party solely as a result of an Event of Default by the Defaulting Party under Section 7.1(a)(iv), if the Non-Defaulting Party’s aggregate aggr Gains exceed its aggregate Losses and Costs, if any, resulting from the termination of this tion of tof Agreement, the Termination Payment shall be zero. The Non-Defaulting Party shall calculate, in all calculate, inate, a Commercially Reasonable manner, a Settlement Amount as of the Early Termination Date. Termination Date. ation Date Third parties supplying information for purposes of the calculation of Gains or Losses may ains or Losses may or Losses may include, without limitation, dealers in the relevant markets, end-users of the relevant product, of the relevant product, relevant product, information vendors and other sources of market information. The Settlement Amount shall not tlement Amount shall not Amount shall not include consequential, incidental, punitive, exemplary, indirect or business interruption damages; usiness interruption damagess interruption dam provided, however, that any lost Capacity Attributes and Environmental Attributes shall be vironmental Attributes shalronmental Attributes sh deemed direct damages covered by this Agreement.Without prejudice to the Non-Defaulting ut prejudice to the Non-Defut prejudice to the Non-Def Party’s duty to mitigate, the Non-Defaulting Party shall not have to enter into replacement not have to enter into repnot have to enter in transactions to establish a Settlement Amount. Each Party agrees and acknowledges that (a) the rty agrees and acknowledgegrees and ackn actual damages that the Non-Defaulting Party would incur in connection with the termination of incur in connection with theconnection w this Agreement would be difficult or impossible to predict with certainty, (b) the Termination to predict with certainty, (b predict with certain Payment described in this section is a reasonable and appropriate approximation of such onable and appropriate appe and damages, and (c) the Termination Payment describedescribed in this section is ted in this d in this section is the exclusive remedy of the Non-Defaulting Party in connection with with the termination of thithe termination of this Agreement but shall not termination otherwise act to limit any of the Non-Defaulting Party’efaulting Party’ting Party’s rights or remedies if the Non-Defaulting s rights rights or re Party does not elect to terminate this Agreement as its remedy for an Event of Default by the is Agreement as its remedyAgreement as it Defaulting Party. 7.4Notice of Payment of Termination Payment. f Termination Payment. mination Payme As soon as practicable after a designation of the after a designation of the Er a designation oe Early Termination Date, Notice shall be given by the Non-Defaulting Party to the Defaulting Party of the amount of the Termination Payment ing Party to the Defaulting ing Party to the Defau and whether the Termination Payment is due to Termination Payment is dermination Paymenthe Non-Defaulting Party. The Notice shall include a written statement explaining in reasonable detail the calculation of such amount and the ten statement explaining in ratement explainin sources for such calculation. The Termination Payment shall be made to the Non-Defaulting r such calculation. The Teralculation. Th Party, as applicable, within twenty (20) Busis applicable, within twenty (2icable, within tweness Days after such Notice is effective. 7.5Disputes with Respect to Termination Payment. Disputes with Disputes with Respect t If the Defaulting Party disputes the Non-If the Defaulting PIf the Defaulting Party Defaulting Party’s calculation of the Termination Payment, in whole or in part, the Defaulting PartPayment, in whoPayment, in whole or y shall, within five (5) Business Days of receipt of the Non-f the Non-f theDefaulting Party’s calculation of the TeDefaulrmination Payment, provide to the Non- Defaulting Party a detailed written explanation of the basis for such dispute. Disputes regarding aulting Partyaultin the Termination Payment shall be determinatimined in accordance with ARTICLE 17. This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 38 Exhibit 'A' 7.6Rights and Remedies Are Cumulative. Except where liquidated damages are provided as the exclusive remedy, the rights and remedies of a Party pursuant to this ARTICLE 7 shall be cumulative and in addition to the rights of the Parties otherwise provided in this Agreement. 7.7Mitigation. Any Non-Defaulting Party shallattempt to mitigate its Costs and Losses resulting from any sulting from any g from an Event of Default of the other Party under this Agreement. 7.8Project Investor Cure Periods. Notwithstanding the foregoing provisions of this ARTICLE 7, in the case of an Event of Default the case of an Event of Defae of an Event of by Seller, Buyer will provide Project Investors (if any) with notice of such Event of Default in notice of such Event of Defanotice of such Event of Def accordance with the Project Investor information set forth in Exhibit I (which information may in Exhibit I (which informan Exhibit I (which inf be updated from time to time upon Notice to Buyer without Amendment to this Agreement) without Amendment to this ut Amendmen concurrent with the delivery of such notice to Seller. Such ProjecSuch Project Investors shallroject Investot Investors shall have the right (but not the obligation) either to cure the Event of Default on behalf of Seller, or upon payment Default on behalf of Seller, Default on behalf of S to Buyer of amounts due from Seller but not paid d by Seller, to assume, or caby Seller, to assume, or Sellecause its designee or a lessee or purchaser of the Project to assume, all of all of the rights and obligatithe rights and obligations of Seller under this the rights Agreement arising as of the date of such assumptisumption, as more fully deson, as more fully described in Section 14.4, for n, as more fu a period of ninety (90) days commencing upon thng upon the expiration of apon the expiratioe expiration of any cure period applicable to Seller under Section 7.1(a). ARTICLE 8 ARTICARTICLE 8 PAYMENT PAYMPAYMENT 8.1Billing and Payment. Payment. nt. On or about the tenth (10th) day of each monthe tenth (10nth (1thh) day of ea) day h beginning with the month following the Commercial Operation Date and every month therOperation Date and every ation Date and eeafter, and continuing through and including the first month following the end of the Delivery month following the end of tlowing the eTerm, Seller shall provide to Buyer an invoice covering the services provided inng the services provided in te services provide the preceding month determined in accordance with ARTICLE 5 (which may include preceding months), with which may include precedinhich may includeall component charges and unit prices identified and all calculations used to arrive at invoicedand all calculations used to nd all calculations u amounts described in reasonable detail. Buyer shall pay the undisputed amount of such invoices on shall pay the undispshall pay the undisputed aor before thirty (30) days after date of the invoice. If either the invoice date or payment date invoice. If eitheinvoice. If either the iis not a Business Day, then such invoice or payment shall be provided on the next following Business Day. Each Party will make payments paymepayment shall be pro by electronic funds transfer, or by other mutually agreeable method(s), to the account designated electronic fundelectro by the other Party. Any undisputed amounts not paidother Pot by the due date will be deemed delinquent and will accrue interest at the Interest Rate, suchacc interest to be calculated from and including the This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 39 Exhibit 'A' due date to but excluding the date the delinquent amount is paid in full. Invoices may be sent by facsimile or e-mail. 8.2Disputes and Adjustments of Invoices. A Party may, in good faith, (a) dispute the correctness of any invoice, or any adjustment to an ent invoice, rendered under this Agreement or (b) adjust any invoice for any arithmetic or ithmetictic computational error, in each case within twenty-four (24) months of the date the invoice, or he invoice, orce, adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other reof, or any other r any othe claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the puted portion of the portion of the invoice shall be required to be made when due. Any invoice dispute or invoice adjustment shall nvoice adjustment shall e adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed Payment of the disputed nt of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any esolution of the dispute, anytion of the disput required payment shall be made within two (2) Business Days of such resolution.Inadvertent of such resolution.resolutionInadverInad overpayments shall be returned upon request within ten (10) calendar days.Any dispute with calendar days.calendar daysAny disputAny disput respect to an invoice is waived if the other Party is not notified in accordance with this Section tified in accordance with thified in accordance wi 8.2 within twenty-four (24) months after the invoice is rendered or subsequently adjusted, except endered or subsequently adjured or subsequ to the extent any misinformation was from a third party not affiliated with any Party and such arty not affiliated with any affiliated wit third party corrects its information after the twentyy-four (24) month period. If-four (24) month period. If an invoice is not four (24) month perio rendered within twelve (12) months after the close of the month during which performance close of the month duringof t occurred, the right to payment for such performance is waived. mance is waived. is waived 8.3Netting of Payments. The Parties hereby agree that they shall dischargshall discharge mutual debtall discharge mutue mutual debts and payment obligations due and owing to each other on the same date through nettme date through netting, in wthrough nettinging, in which case all amounts owed by each Party to the other Party for the purchase and sale of Product during the monthly billing period the purchase and sale of Prurchase and sal under this Agreement shall be netted so that onlll be netted so that only the ted so that only the excess amount remaining due shall be paid by the Party who owes it. it. ARTICLE 9 AR INSURANCE, CREDIT AND COLLNSURANCE, CREDIT ANRANCE, CREDATERAL REQUIREMENTS 9.1Insurance. surance. In connection with Seller’onnection with Seller’on with Ss performance of its duties and obligations under this Agreement, s pe during the Delivery Term, Seller shall maintainduring the Delivery Teduring the Delivery Term, Se insurance in accordance with Exhibit G. 9.29.29.2Grant of Security Interest. Grant ofGrant of Securi To secure its obligations under this Agreement asecsecure its oblurnd to the extent Seller delivers Performance Assurance hereunder, Seller hereby grants to ance herancBuyer a present and continuing first priority security interest in, and lien on (and right of setnteoff against), and assignment of, all cash collateral and cash equivalent collateral and any and all proceeds resulting therefrom or the liquidation This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 40 Exhibit 'A' thereof, whether now or hereafter held by, on behalf of, or for the benefit of, Buyer, and each Party agrees to take such action as the other Party reasonably requires in order to perfect the Buyer’s first-priority security interest in, and lien on (and right of setoff against), such collateral and any and all proceeds resulting therefrom or from the liquidation thereof. Upon or any time after the occurrence and during the continuation of an Event of Default by Seller or an Early Termination Date as a result thereof, Buyer may do any one or more of the following: (i) wing exercise any of the rights and remedies of a secured party with respect to all Performance Performanma Assurance, including any such rights and remedies under Law then in effect; (ii) exercise its ii) exercise itsse rights of setoff against such collateral and any and all proceeds resulting therefrom or from the efrom or from theor from th liquidation thereof; (iii) draw on any outstanding Letter of Credit issued for its benefit; and (iv) r its benefit; and (iv) enefit; and (iv) liquidate all or any portion of any Performance Assurance then held by or for the benefit of y or for the benefit of for the benefit of Buyer free from any claim or right of any nature whatsoever of Seller, including any equity or r, including any equity oring any equity or right of purchase or redemption by Seller. Buyer shall apply the proceeds of the collateral he proceeds of the collateraoceeds of the co realized upon the exercise of any such rights or remedies to reduce the Sece the See the Seller’s obligations under ller’s obligationsller’s obligations un the Agreement (Seller remaining liable for any amounts owing to Buyer after such application), g to Buyer after such applicg to Buyer after such applic subject to Buyer’s obligation to return any surplus proceeds remaining after such obligations are s remaining after such obligremaining after such satisfied in full. 9.3Seller Financial Statements. If requested by Buyer, the Seller shall deliveer within one hundred twentr within one hundred twenty (120) days following in one hu the end of each fiscal year of Seller’s Ultimate Parent Company: mate Parent Company: (i) aent Compan(i) a copy of Seller’s Ultimate Parent Company’s annual report or 10K reportK reportort, and (ii) within sixty (60) days after the end of , and (ii) with, and (ii) within six each of its first three fiscal quarters of each fiscal year, a copy ofof each fiscal year, a copy f each fiscal yea such Seller’s Ultimate Parent Company’s quarterly report containing unaudited taining unaudited consolidaing unaudited coconsolidated financial statements for such fiscal quarter, in each case unless otherwise publicly available. If any such statements shall not ess otherwise publicly availaherwise publicly be available on a timely basis due to a delay in is due to a delay in preparae to a delay in ppreparation or certification, such delay shall not be an Event of Default so long as the Seller dio long as the Seller diligentls the Seller diligently pursues the preparation, certification and delivery of the statements. nts. 9.4Performance Assurance. nce Assurance. ce Assurance. Seller agrees to deliver to BuyercSeller agSeller agrees ollateral to secure its obligations under this Agreement, which Seller shall maintain in full force and effect for the period nder this Agreement, whichAgreement, posted with Buyer, asfollows:posted with ed with Buyer, asBuyer, asfollo Performance Assurancein the amount of TenMillionDollars ($10,000,000)(($100(“Project Development Security”) in the form of cash, Letter of Credit or Guaranty within five (5) Business Days following the Effective of C Date of this Agreement until Seller posDts Delivery Term Securityafter the Commercial Operation Date; Performance Assurance in the amount of Four Million Five Hundred Thousand Dollars ($4,500,000)(“Delivery Term Security”) in the This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 41 Exhibit 'A' form of cash, Letter of Credit or Guaranty from the Commercial Operation Date until the end of the Term; provided that Seller may elect to apply the Project Development Security toward the Delivery Term Security. If,after the Commercial Operation Date, no amounts are due and owing toBuyerunder this Agreement, then Seller shall no longer be required to maintain thenta Project Development Security, and Buyershall return to Seller the Project Development evelopmpm Security, less the amounts drawn, if applicable,in accordance with Section9.4(c). The n9.4(c). Th T Project Development Security (or portion thereof) shall be returned to Seller within five Seller within five within fiv (5) Business Days of Seller’s provision of the Delivery Term Security unless, with ecurity unless, with y unless, with respect to cash held as Project Development Security, Seller electscts to apply the Project to apply the Project apply the Project Development Security toward the Delivery Term Security. Any amounts owed by Seller to Buyerunder this Agreement (other than nder this Agreement (other ths Agreement (oth disputed amounts) and not satisfied within thirty (30) Days of becoming due and owing Days of becoming due and Days of becoming due and may be satisfied by Buyeron a draw on Seller’s Performance Assurance until such Performance AssuranPerformance Assurance u Performance Assurance has been exhausted. In addition, upon termination, Buyershall addition, utiopon termination, term have the right to draw upon Seller’s Performance Assurancefor any undisputed amounts ce Assuraurancenfor any undisany owed to Buyerunder this Agreementif not paid when due pursuant to Section8.1.not paid when due pursuanot paid when due pu Seller’s Performance Assurance shall not be subjectt be subjectsubje to replenishment; however, lack of to replenishme Performance Assurance funds due to draw-down draw-down by Buyer does down by by Buyer does not excuse Seller from those amounts due and owing, if any, toBuyer by Seller. y, toBuyer by Seller. yer by Seller Cash held by BuyeryBuyerras Seller’s Performance Assurance as Seller’s Peras Seller’s Performashall be held in an interestbearing account provided that, inteprovided that, interest on covided that, interrest on cash held as Project Development Securityshall be retained by Buyeruntil Selld by Buyeruyeruntil Seller postuntil Selleer posts the Delivery Term Security. Upon Seller’s posting of the Delivery Term Security, all accrued interest on the the Delivery Term Securitelivery Term Project Development Securityshall be transferred to Seurityshall be transferred to Sll be transferredller in the form of cash by wire transfer to the bank account specified by Sent specified by Seller. Afecified by Selleller. After Seller posts the Delivery Term Security, Buyershall transfer (as described in the prtransfer (as described in theer (as described ieceding sentence),on or before each Interest Payment Date,the amount of interest due to Seller for such Delivery Term Security. Dateate,,the amount of interest dthe amount of in If, during the Term, there shall occIf, duringIf, during the Tur a Downgrade Event in respect of Seller’s Guarantor, then Seller shall delieller’s Guarantor, then Sellerarantor, thenver to Buyer replacement Performance Assurance in the form of a Letter of Credit, cash or in the form of a Letter oe form of a Lea replacement Guaranty from a different Guarantor (meeting the requirements set forth in Guarantor (meeting the arantor (methe definition thereof) in lieu thereof in an amount equal to the then applicable an amount eqan amount equal to amount of Performance Assurance; provided, however, that Seller shall only be required tohohowever, that Sellvertha maintain its Performance Assurance in the form of a Letter of Credit, cash or a replacement Guaranty for so long as (1) form of aform of a Letteif Seller’s Guarantor has a Credit Rating from three RaGuarantor hatings Agencies, the Credit Ratings from two Ratings Agencies remain below BBB-RRatings Afrom S&P, Baa3 from Moody’s, or BBB-from Fitch; or (2) FFitch; if Seller’s Guarantor has Credit Rating from only one or two Ratings Agencies, the Credit Rating from one of thgee Rating Agencies remains below BBB-from This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 42 Exhibit 'A' S&P, Baa3 from Moody’s, or BBB- from Fitch; or (3) no Ratings Agency rates Seller’s Guarantor. Seller’sobligation to maintain the applicable Performance Assurance shall terminate upon the occurrence of the following: (i)the Term of the Agreementhas ended, or the Agreementhas been terminated pursuant to Section7.2, as applicable; and abl (ii) all payment obligations of each Party arising under this Agreement, Termination Terminatna Payment, indemnification payments or other damages are paid in full.Upon the l.Upon then t occurrence of the foregoing, each Party shall promptly return to the other Party the e other Party the r Party th unused portion of the applicable Performance Assurance, including the payment of any the payment of any ayment of any interest due thereon. Any Letter of Credit provided pursuant to this Agreement must provide, his Agreement must providegreement must pr among other things, that the Buyer is entitled to draw the full amount of such Letter of e full amount of such Lettermount of such L Credit if: (i) the Letter of Credit has not been renewed or replaced within thirty (30) days or replaced within thor replaced within thirty (30(30 prior to the expiration date of the Letter of Credit; or (ii) the issuer of the Letter of Creditr (ii) the issuer of the Letter (ii) the issuer of the L fails to maintain (1) a Credit Rating of at least A-from S&P and at least A3 from t A--from S&P and at leafrom S&P a Moody’sor (2) assets of at least $10 Billion,an,andd, in each case,the Party required to , in each cn eaase,se,the Par provide the Letter of Credit has failed, withthin ten (10) Business Dayhin ten (10) Businessin ten (10) Business Days after receipt of Noticethereof by Buyer to replace such Letter Letter of Credit with another of Cof Credit with another Letter of Credit, in a form reasonably acceptable to the issuer of suer of the f the the Letter of Credit and Buyer. Costs of a Letter of Credit Lett Letter of Credit shall be borne by Seller.eller. ARTICLE 10 ARTICLE 10ARTICLE 10 REPRESENTATIONS, WARRANTIES AND COVENANTS ATIONS, WARRANTIES ANS, WARRANT 10.1Representations and Warranties. nd Warranties. ran On the Effective Date, each Party represents and warrants to the other Party that: e, each Party represents and h Party represents it is duly organized, validly existing and in good standing under the it is duly orgt is duly oranize laws of the jurisdiction of its formation;of the jurisdiction of its formjurisdiction of it it has all Governmental Approvals necessary for it to perform its it has all t ha obligations under this Agreement, and, in thobligagations under this Agtions under the case of Seller, all Governmental Approvals necessary to construct, operate and maintainnnecessary to essary to construcc the Project and related interconnection facilities;facilitiefacilitiess;; the execution, delivery and performance of this Agreement is within its powers, have been duly authorized by all nepowers, havcessary action and do not violate any of the terms and conditions in its governing documents, teterms anany contracts to which it is a party or any Applicable Law;ny A This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 43 Exhibit 'A' this Agreement and each other document executed and delivered in accordance with this Agreement constitutes a legally valid and binding obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses; it is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it sul being or becoming Bankrupt; except as may be set forth in its reports filed with the SEC, there is not SEC,there is not there is no pending or, to its knowledge, threatened against it or any of its Affiliates any legal Affiliates any legal ates any legal proceedings that could materially adversely affect its ability to perform its obligations perform its obligations m its obligations under this Agreement; no Event of Default with respect to it has occurred and is continuing has occurred and is continurred and is conu and no such event or circumstance would occur as a result of its entering into or a result of its entering ina result of its entering i performing its obligations under this Agreement; it is acting for its own account, hant, has made its own indepens made its own independent decision made its own to enter into this Agreement and as to whether this Agreement is appropriate or proper for errthis Agreement is approprthis Agreement is ap it based upon its own judgment, is not relyinying upon the advice or recog upon the advice or recommendations of the g upon the advice o other Party in so doing, and is capable of aof assessing the merits of assessing the merits of and understanding, and sessing t understands and accepts, the terms, conditions and risks of this Agreement; andconditions and risks of this Ans and risks it has entered into this Agreement d into this Agreement in conhis Agreement iin connection with the conduct of its business and it has the capacity or the ability acity or the ability to make oty or the ability tto make or take delivery of the Product as provided in this Agreement.nt. 10.2General Covenants. Each Party covenants that throughout the Term: that throughout the Term: hroughout the Te it shall continue to be duly organized, validly existing and in good it shall continue tt shall conti standing under the Laws of the jurisdiction of its formation;ng under the Laws of the jurder the Laws of t it shall maintain (or obtain from time to time as required, including it shall mat sha through renewal, as applicabthrouugh renewal, as applgh renewal, asle) all Governmental Approvals necessary for it to legally perform its obligations under this Agreement; perform its oblperform its obligations it shall perform its obligations under this Agreement in a manner that does not violate any of the terms and cdoesnotdoes not violonditions in itsgoverning documents, any contracts to which it is a pacontracts torty or any applicable Law; and itshall not dispute its status as a “forward contract merchant”within the meaning of the United States Bankruptcy Code. This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 44 Exhibit 'A' 10.3Seller Covenants. Seller covenants as follows: during the Delivery Term, the Projectshall be operated and maintained in accordance with this Agreement,Applicable Laws, and Prudent Operating Practices; Prac and throughout the Term that it, or its permitted successors or assigns, shall s or assigns, signsshallsha maintainownershipof a fee, easement, long-term leasehold interest, or other similar asset r other similar asset er similar asset ownership interest in the Project. 10.4Buyer’s Covenants. Buyer covenants as follows: from the date hereof through the exgh the expiration or terminexpiration orpiration or termination of this Agreement, Buyershall comply with this Agreement and Applicable Laws;reement and Applicable Lawreement and Applicabl Buyerwill, at Seller’s expense, reasonably cooperate with Seller in r’s expense, reasonably coopense, r opposing, and will not support any action of any regulatory body having jurisdiction y action of any regulatory of any reg thereover that could result in the modifihe modificationodificatiocationor vitiation of any of the terms or or vitiatioor v conditions hereof or have any other material adother material adverse effecmaterial adverseverse effect on Seller, the Projector this Agreement; and Buyerer’s obligations under this Agreement shall ’s obligations under this obligations underqualify as operating expenses which enjoy first priority paymenoy first priority payment at priority paymet at all times under any and all bond or other t ordinances or indentures to which Buyeris a padentures to which o which BuyerBisrty and shall be included as part of the rate calculations required by any rate-relatns required by any ratequired by any rate-related debt covenants to which Buyeris bound. ARTICLE 11 AR TITLE, RISK OF LOSS, INDEMNITIES TITLE,TITLE, RISK 11.1Title and Risk of Loss. Title and Risk of Loss. and Risk of Loss Title to and risk of loss related to the Product shall itle to and risk of loss relatetle to and risk of lostransfer from Seller to Buyer at the Delivery Point. Seller warrants that it will deliver to Point. Seller warrantPoint. Seller warrants that Buyer the Product free and clear of all liens, security interests, claims and encumbrances or any intereinterests, claims interests, claims and encst therein or thereto by any Person arising prior to or at the Delivery Point. to or at the Delito or at the Delivery P 11.2Indemnities by Seller. InIndemni This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 45 Exhibit 'A' Seller shall release, indemnify, defend, and hold harmless Buyer, its Affiliates, and its and their directors, officers, employees, agents, and representatives against and from any and all actions, suits, losses, costs, damages, injuries, liabilities, claims, demands, penalties and interest, including reasonable costs and attorneys’ fees (“Claims”) resulting from, or arising out of or in any way connected with (i) any event, circumstance, act, or incident relating to the Product delivered under this Agreement up to and at the Delivery Point, (ii) Seller’sdevelopment, elop permitting, construction, ownership, operation and/or maintenance of the Project, (iii) the failure ) the failufai by Seller or the failure of the Project to comply with Applicable Laws, (iv)any Governmental Governmentalmen Charges for which Seller is responsible hereunder, or (v) any liens, security interests, ecurity interests, y interests encumbrances, or other adverse claims against the Product delivered hereunder made by, under, nder made by, under, made by, under, or through Seller, in all cases including, without limitation, any Claim for or on account of m for or on account of or on account of injury, bodily or otherwise, to or death of persons, or for damage to or destruction of property or destruction of property uction of property belonging to Buyer, Seller, or others, excepting only such Claim to the extent caused by the to the extent caused by the extent caused willful misconduct or gross negligence of Buyer, its Affiliates, and its and their directors, es, and its and their direct, and its and their dir officers, employees, agents, and representatives. 11.3Indemnities by Buyer. To the fullest extent allowed by Applicable Law, Buyer shall release, indemnify, defend, and Buyer shall release, indemBuyer shall release, i hold harmless, Seller, its Affiliates, and its and their directors, offtheir directors, officers, emdirecicers, employees, agents, and representatives against and from any and all Claims resulting from, or arising out of or in any Claims resulting from, or ams resultin way connected with (i) any event, circumstance, act, or incident stance, act, or incident relatit, or incidenrelating to the Product received by Buyer under this Agreement after the Delivery Poe Delivery Point, (ii) the failivery Point, (ii) tint, (ii) the failure by Buyer to comply with Applicable Laws, or (iii) any Governmental Charges for which Buyer is responsible hereunder,nmental Charges for which mental Charges f in all cases including, without limitation, animitation, any Claim for oation, any Claimy Claim for or on account of injury, bodily or otherwise, to or death of persons, or for damage ns, or for damage to or destrufor damage to or to or destruction of property belonging to Buyer, Seller, or others, excepting only such Claim toonly such Claim to the extsuch Claim to t the extent caused by the willful misconduct or gross negligence of Seller, its Afr, its Affiliates, and its and filiates, and its and their directfiliates, and itors, officers, employees, agents, and representatives. ARTICLE 12 AR GOVERNMENTAL CHARGES GOVGOVERN 12.1Cooperation. Cooperation. n. Each Party shall use reasonable efforts to impch Party shall use reasonabh Party shall use lement the provisions of and to administer this Agreement in accordance with the Agreement in accordaAgreement in accordance wintent of the Parties to minimize all taxes, so long as neither Party is materially adversely affected by such efforts. Party is materially aParty is materially advers 12.22.22.2Governmental Charges. Government Except as provided in Section 3.3(b), Seller shall paas provay or cause to be paid all taxes imposed by any Governmental Authority (“Governmental Charges”) on or with respect to the Product or This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 46 Exhibit 'A' the transaction under this Agreement arising prior to and at the Delivery Point, including, but not limited to, ad valorem taxes and other taxes attributable to the Project, land, land rights or interests in land for the Project. Buyer shall pay or cause to be paid applicable Governmental Charges on or with respect to the Product or the transaction under this Agreement from the Delivery Point. In the event Seller is required by Law or regulation to remit or pay Governmental Charges which are Buyer’s responsibility hereunder, Buyer shall promptly prom reimburse Seller for such Governmental Charges. If Buyer is required by Law or regulation to regulation ion remit or pay Governmental Charges which are Seller’s responsibility hereunder, Buyer may der, Buyer may Buyer ma deduct such amounts from payments to Seller with respect to payments under the Agreement and the Agreement and eement and shall show such deductions on invoices provided by Seller to Buyer. If Buyer elects not to f Buyer elects not to er elects not to deduct such amounts from Seller’s payments, Seller shall promptly reimburse Buyer for such eimburse Buyer for such se Buyer for such amounts within thirty (30) calendar days. Nothing shall obligate or cause a Party to pay or be cause a Party to pay or be e a Party to pay or be liable to pay any Governmental Charges for which it is exempt under the Law. der the Law. Law. ARTICLE 13 CONFIDENTIAL INFORMATION MATIONTI 13.1Confidential Information. The Parties have and will deved will develop certain infll develop certain information, processes, know-how, techniques and procedures concernidures concerning the oncerning ng the Projectthat they consider Proj confidential and proprietary (together with the terms and conditions of this Agreement, ther with the terms and conwith the terms an the “Confidential Information”). Notwithstandi). Notwithstanding the conftwithstanding theng the confidential and proprietary nature of such Confidential Information, the Parties (each, the “mation, the Parties (each, theion, the Parties (Disclosing Party”) may make such Confidential Information available to the other (each, a “ation available to the other (available to the Receiving Party”) subject to the provisions of this Section 13.1.s Section tion13.113.1.. Upon receiving or learning of ConfiUpon receiving or learningceiving or dential Information, the Receiving Party shall: Treat such Confidential InforTreaTreat suchmationas confidential and use reasonable care not to divulge such Confidential Information to any third reasonable care reasonable care not t party except as required by law, subject party except aparty except as requto the restrictions set forth below; Restrict access to such Confidential Information to only those employees, Affiliates, subcontractors, ememployees,suppliers, vendors, and advisors whose access is reasonably necessary for the development, construction, operation acaccess i or maintenance of the Projectand for the purposes of this Agreement who or ma shall be bound by the terms of this Section 13.1;sh Use such Confidential Information solely for the purpose of developing the Projectand for purposes of this Agreement; and This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 47 Exhibit 'A' Upon the termination of this Agreement, destroy or return any such Confidential Information in written or other tangible form and any copies thereof. The restrictions of this Section 13.1do not apply to: Release of this Agreement to any Governmental Authority Authoho required for obtaining any approval or making any filing pursuant to Section ant to Sectionecti 12.2,provided that each Party agrees to cooperate in good faith with the od faith with the th with th other to maintain the confidentiality of the provisions of this Agreement by fthis Agreement by Agreement by requesting confidential treatment with all filings to the extent appropriate and extent appropriate and t appropriate and permitted by Applicable Law; Information which is, or becomes, publicly known or ecomes, publicly known s, publicly kno available other than through the action of the Receiving Party in violation of he Receiving Party in violatihe Receiving Party in viola this Agreement; Information which is in the possession of the Receiving Party s in the possession of te possession ohe Re prior to receipt from the Disclosing Party or which is independently sclosing Party or which iclosing Party or wh developed by the Receiving Party, Party, arty, providedprovidedthat the Person or Persons ththat the developing such information have nottion have not had accesshave no had access to any Confidential Information; Information which is received from a third party which is not rmation whicon which is received fh is rece known (after due inquiry) by Receiving Party to be prohibited from due inquiry) by Receivinge inquiry) by R disclosing such information pursuant touch information pursuant tnformation pursu a contractual, fiduciary or legal obligation; and; and Information which is, in the reasonable written opinion of InformatiInformation whic counsel of the Receiving Party, required to be disclosed pursuant to ounsel of the Receiving P of the Receiv Applicable Law (including any Freedom of Information Act or Texas Public Applicable Law (iApplicable Law (including Information Act request); Information Act nformation Act requestreprovided, however,that the Receiving Party, prior to such disclosure, shall provide reasonable advance Noticeto the Disclosing to such disclosuto such disclosure, sh Party of the time and scope of the intendeParty of theParty of the time ad disclosure in order to provide the Disclosing Party an opportunity to obtain a protective order or otherwise seek DisclosingDisclosing Party to prevent, limit the scope of, or imto prevto prevent, lipose conditions upon such disclosure. Notwithstanding the foregoing, Seller may disclose Confidential N Information to the Project Investors and any InformaInformation to tother financial institutions expressing an interest in providing equity or debt finainterest in prerestncing or refinancing and/or credit support to Seller, and the agent or trustee of any of them. Seller, and Neither Party shall issue any press or publicity release or otherwise release, distribute or disseminate any information, with the intent that such information This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 48 Exhibit 'A' will be published (other than information that is, in the reasonable written opinion of counsel to the Disclosing Party, required to be distributed or disseminated pursuant to Applicable Law, provided that the Disclosing Party has given Notice to, and an opportunity to prevent disclosure by, the other Party as provided in Section 13.1(c)(v)), concerning this Agreement or the participation of the other Party in the transactions contemplated hereby without the prior written approval of the other Party, which y, w approval will not be unreasonably withheld, conditioned or delayed. This provision shall ovision shn s not prevent the Parties from releasing information which is required to be disclosed in be disclosed ined order to obtain permits, licenses, releases and other approvals relating to the Project or as o the Project or as roject or a are necessary in order to fulfill such Party’s obligations under this Agreement.greement.ent. The obligations of the Parties under this Section 13.1 shall remain in ction 13.11 shall remain in shall remain in full force and effect for three (3) years following the expiration or termination of this ration or termination of thior termination Agreement. 13.2Texas Public Information Act. Notwithstanding any other provision of this ARTICLE 13, the Parties understand that Buyer is a 13, the Parties understand e Parties unde governmental entity and is required to comply, and Buyer does hereby agree to comply, with the Buyer does hereby agree toBuyer does hereby agr Texas Public Information Act (Chapter 552 of the he Texas Government Code)Texas Government Code) when responding to xas G requests for records in its possession except whwhere the information is coere the information is considered public power the infor utility competitive information protected by thby the provisions of the Te provisions of the Texas Government Code, provisions o Sections 552.101, 552.104, 552.110 and/or 552.133.Disclosd/or 552.133.52.133.Disclosure ofDisclosure of information required by the Texas Public Information Act shall not constitute a breach of any provision contained herein if not constitute a breach of anot constitute a breach so ordered by the State of Texas Attorney General. Notwithstanding the foregoing, the Parties Attorney General. Notwithorney General. N acknowledge and agree that this Agreement is is Agreement is confidentialement is confidconfidential, commercially sensitive information protected from disclosure pursuant to the Texas Public Information Act. In the event that Buyer rsuant to the Texas Public It to the Texas P is requested or required by legal or regulatory authority to disclose this any Confidential by legal or regulatory aual or regulato Information, Buyer shall promptly notify Sellerhall promptly notify Sellepromptly notify of such request or requirement prior to disclosure, if permitted by law, so that Seller tted by law, so that Seller mted by law, so that Semay seek an appropriate protective order. In the event that a protective order or other remedy is notective order or other remedytive order or other obtained, Buyer agrees to furnish only that portion of the Confidential Information that it reasonably determines, in consultation with its Confidential Information tfidential Inform counsel, is consistent with the scope of the suconsistent with the scope ent with the scbpoena or demand, and to exercise reasonable efforts to obtain assurance tho obtain assurance that coassurance tat confidential treatment will be accorded such Confidential Information. mation. . ARTICLE 14 ASSIGNMENT 14.14.14.1Successors and Assigns. Successors a This Agreement shall inure to the benefit of AgreemeAgrand shall be binding upon the Parties and their respective successors and assigns. es This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 49 Exhibit 'A' 14.2Assignment by Seller. This Agreement shall not be assigned or transferred by Sellerwithout the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, no consent shall be required for: for: Any assignment of this Agreement by Seller to any Projectr to any any Projecojet Investors as collateral security for obligations under the financing documents nancing documents ng documents entered into with such Project Investors; or Any assignment by the Project Investors to a third party after vestors to a third party after s to a third party after theProject Investors have exercised their foreclosure rights with respect to eclosure rights witre rights with respect h re this Agreement or the Project. Any assignment or transfer of this Agreement by Seller to an sfer of this Agreement by Sr of this Agreemen Affiliate of Seller, provided that such Affiliate’s creditworthiness ch Affiliate’s creditworthinefiliate’s creditwisequal to or better than that of Seller,and that suthat such Affiliate has the that such Affiliate hach Affiliate has the technical ability necessary to perform all of the Seller’se Seller’s obligations under teller’s obligations u obligations under the Agreement, and such Affiliateundertakes the legal obligations to perform all such obligations he legal obligations to perforal obliga under the Agreement; Any assignment or transfer of this Agreement by Seller to a assignment or transfer of tnment or transfe Personsucceeding to all or substantiang to all or substantially allg to all or substanlly all of the assets of Seller, provided that such Person’s creditworthiness is eqson’s creditworthiness is eq creditworthinesual to or better that that of Seller, and that such Person has the technical abuch Person has the technicalerson has the techility necessary to perform all of the Seller’s obligations undobligations undations under the Agreement, and such Person undertakes the er theer the Agr legal obligations to perform all such obligations under the Agreement.obligations to perform all suns to perfo Buyeracknowledges that upon an evenBuyerBuyeracknowledges acknowlt of default under any financing documents relating to the Project, any of thnts relating to the relating to thProjectPro,e Project Investors may(but shall not be obligated to) assume, or cause its designee ated to) assume, or cause itso) assume, or cauor a new lessee or purchaser of the Projectto assume, all of the interests, rights and obligume, all of the interests, rigof the interations of Seller thereafter arising under this Agreement,provided that, regardlAgreementement,,provided that, reprovided tess of whether any such Project Investoror its designee assumes all of the interests, rights and obligatassumes all of the intereumes all of the iions of Seller thereafter arising under this Agreement, BuyerAgreemenAgreement, BuyerBu’s interests, rights and obligations under this Agreement will remain in ’s in full force and effect.full force and full force and effect If the rights and interests of Seller in this Agreement shall be assumed, sold or transferred as herein provided, and the assold or transuming party shall agree in writing to be bound by and to assume, the terbobound bms and conditions hereof and any and all obligations to Buyerarising or accruing hereunder from and Buyeafter the date of such assumption, then Seller shall be released and discharged from the terms and conditions hereof and each This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 50 Exhibit 'A' such obligation hereunder from and after such date, and Buyer shall continue this Agreement with the assuming party as if such Person had been named as Seller under this Agreement; provided, however, that if any such Person assumes this Agreement as provided herein, Buyer acknowledges and agrees that such Persons shall not be personally liable for the performance of such obligations hereunder except to the extent of the total interest of the Project Investors in the Project. Notwithstanding any such any assumption by any of the Project Investors or a designee thereof, Seller shall not be shall not not released and discharged from and shall remain liable for any and all obligations to Buyer ations to BuyerBuy arising or accruing hereunder prior to such assumption. The provisions of this Section 14.2 are for the benefit of the Project benefit of the Project fit of the Project Investors as well as the Parties hereto, and shall be enforceable by the Project Investors as by the Project Investors as roject Investors as express third-party beneficiaries hereof. Buyer hereby agrees that none of the Project ees that none of the Projechat none of the P Investors, nor any bondholder or participant for whom they may act or any trustee acting ey may act or any trustee actact or any trustee on their behalf, shall be obligated to perform any obligation or be deemed to incur any igation or be deemed to incgation or be deemed to inc liability or obligation provided in this Agreement on the part of Seller or shall have any n the part of Seller or shall the part of Seller or obligation or liability to Buyer with respect to this Agreement except to the extent any of s Agreement except to the egreement excep them becomes a party hereto pursuant to this Section 14.2.ection 14.24.2.. 14.3Assignment by Buyer. ThisAgreement shall not be assigned or transferred by Buyer without hall not be assigned or tranbe assigned the prior written consent of Seller, which consent shall not be unreasonably withheld, ler, which consent shall nowhich consent sha conditioned or delayed. Notwithstanding the foregoing, no consent shall be required for: hstanding the foregoing, no ing the foregoin Any assignmentor transfer of this Agreement by Buyerto an Any assignmenAny assignmentor t Affiliate of iate of Buyer, provided that such Affiliate’s creditworthiness Buyer, provided thatuyer, proviisequal to or better than that of Buyer,and that sur better than that of Buyerer than that of Buch Affiliate has the technical ability necessary to perform all of the Buyer’s obligationnecessary to perfornecessary to perform all ofs under the Agreement, and such Affiliate undertakes the legal obligations to perform all such obligations such Affiliate undertakeuch Affiliate und under the Agreement;under the Agreeunder the Agreement Any assignment or transfer of this Agreement by Buyerto a A Person succeeding to all or substantiaPersonPerson succelly all of the assets of Buyer, provided that such Person’s creditworthiness is equal to or better that that of thathat such Buyer, and that such Person has the technical abanand thaility necessary to perform all of the Buyer’s obligations under the AgreemenBuyt, and such Person undertakes the legal obligations to perform all such obligations under the Agreement.le If the rights and interests of Buyer in this Agreement shall be assumed, sold or transferred as herein provided, and the asold osuming party shall agree in writing to be bound by and to assume, the terms and conditions hereof and any and all obligations to This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 51 Exhibit 'A' Seller arising or accruing hereunder from and after the date of such assumption, then Buyer shall be released and discharged from the terms and conditions hereof and each such obligation hereunder from and after such date, and Seller shall continue this Agreement with the assuming party as if such Person had been named as Buyer under this Agreement. 14.4Collateral Assignment. Seller, without approval of Buyer, may, by security, charge or urity, charge or charge o otherwise encumber its interest under this Agreement for the purposes of financing the ses of finffinancing the ancing the development, construction and/or operation of the Projectctand the Seller’s and the Seller’s d the Seller’s Interconnection Facilities. Promptly after making such encumbrance, Seller shall notify Buyerince, Seller shall notify er shall notify BuyerB writing of the name, address, and telephone and facsimile numbers of each Project csimile numbers of eacsimile numbers of chchPP Investorto which Seller’s interest under this Agreement has been encumbered. Such ement has been encumberedment has been encum Noticeshall include the names of the account managers or other representatives of the anagers or other representagers or other r Project Investors to whom all written and telephonic communications may beaddressed. honic communications may bommunication After giving Buyersuch initial Notice, Seller shall promptly give Buyerinitial tialNoticeN, Seller shall pll Noticeof any change in the information provided in the initial Noticeor any revised ion provided in the initial rovided Notice. If Seller encumbers its interest under this Agreement as permitted by umbers its interest under ths its interest und this Section 14.4, the following provisions shall apply: ing provisions shall apply: g provisions shall The Parties, except as provided by the terms of this The Parties, excThe Parties, except Agreement, shall not modify or cancelment, shall not modify or chall not modify this Agreement without the prior written consent of the Project Investors;en consent of the nt oProject InvPr The Project Investors or their designees shall have the right, ThTheProject but not the obligation, to perform any actbut not the obligatibut not the obligation, to required to be performed by Seller under this Agreement to prevent or cureunder this Agreunder this Agreement an Event of Default by Seller and such act performed by the Project Invesuch act psuch act performestors or their designees shall be as effective to prevent or cure an Event of Default as if done by Seller,provided effective teffective to prev that, if any such Project Investoror its designee elects to perform any act that, if that, if any s required to be performed by Seller undreqrequired toer this Agreement to prevent or cure an Event of Default by Seller, Buyerwillanan Even not be deemed to have waived or relinquished its rights and remedies as provided in this Agreement;relin Buyershall,upon request by Seller,execute statements certifying that this Agreement is unmodified (or, modified and stating the nature of the modification), in full force and effect and the absence or existence (and the nature thereof) of Events of Default hereunder by Seller This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 52 Exhibit 'A' and documents of consent to such assignment to the encumbrance and any assignment to such Project Investors; and Upon the receipt of a written request from Seller or any Project Investor,Buyershall execute, or arrange for the delivery of, such certificates, opinions and other documents as may be reasonably necessary in ess order for Seller to consummate any financing or refinancing of the Projector eProjectec any part thereof and will enter into reasonable agreements with such Project h such Projectroje Investor, which agreements will grant certainrights to the Project InvestorsProject Investorct Investors as more fully developed and described in such documents, including (a) this ts, including (a) this cluding (a) this Agreement shall not be terminated (except for termination pursuant to the nation pursuant to the n pursuant to the terms of this Agreement) without the consent of Project Investor, which Project Investort Investor, which , which consent is not to be unreasonably withheld, conditionedor delayed, (b) conditionedtionedor delayed, (bor delaye Project Investors shall be given notice of, and the opportunity to cure as and the opportunity to cureopportunity to provided in Section 14.4(d)(ii), any breach or default of this Agreement by h or default of this Agreemh or default of this Agreem Seller, (c) that if the Project Investor forecloses, take a deed in lieu of forecloses, take a deed iforecloses, take a d foreclosure or otherwise exercise its remedies pursuant to any security its remedies pursuant to aemedies pursu documents, then (i) Buyer shall, at Project Investorat Project Investorect Investor’s request, continue to ’s’s reque perform all of its obligations hereundeereunder, and Project Investreunder, and Project Ir, and Project Investor or its nominee may perform in the place of Seller, and may assign thSeller, and may assign this A, andis Agreement to another Person in place of Seller, (ii) Project(ii) Project Investor shall Project Inv Investor shall have no liability under this Agreement except during the period of such Project Investorduring the period of such Pre period of s’s ownership or operation of the Project and (iii) that Project and (iii) that Buyerct and (iii) that Buyer shall accept performance in accordance with this Agreement by Project Investor or its nominee, and (d) this Agreement by Project his Agreement by that Buyer shall make representations and warranties to Project Investor as all make representations andmake representati Project Investor may reasonably request with regard to (1) Buyerestor may reasonably requesmay reasonably re’s existence, (2) Buyerr’s authority to execute, deliver a’s authority to execute, delthority to execund perform this Agreement, (3) the binding nature of the document evidencing Buyerng nature of the document eve of the docum’s consent to assignment to Project Investor and this Agreement oject Investor and this AgreInvestor and thison Buyer and (4) receipt of regulatory approvals by Buyer with respect to approvals by Buyer wapprovals by Buyer with resits execution and performance under this Agreement. Agreement. Agreement. ARTICLE 15 FORCE MAJEURE 15.11Force Majeure Events. Force MajeurForce Majeure Events. To the extent either Party is prevented by a Force Majeure Event from carrying out, in whole or To the eTo the extent either Partyxtent either part, its obligations under this Agreement and part, its obligatipart, its obligations unsuch Party gives Notice and details of the Force Majeure Event to the other Party as detailed beMajeuMajeure Event to tlow, then, the Party impacted by the Force Majeure Event shall be excused from the performaeure Event sheure nce of its obligations to the extent impacted. As soon as practicable after commn as praencement of a Force Majeure Event, the non-performing Party shall provide the other Party with oral notice ofi the Force Majeure Event, and within two (2) This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 53 Exhibit 'A' weeks of the commencement of a Force Majeure Event, the non-performing Party shall provide the other Party with Notice in the form of a letter describing in detail the particulars of the occurrence giving rise to the Force Majeure Event claim. Upon mutual agreement by the Parties, Seller may substitute Product from other similar sources for the output of the Project during an outage resulting from aForce Majeure Event. The suspension of performance due to a claim of a Force Majeure Event must be of no greater scope and of no longer duration than is required by quir the Force Majeure Event. Buyer shall not be required to make any payments for any Product that Product thct Seller fails to schedule, deliver or provide as a result of aForce Majeure Event during the term of ing the term ofrm suchForce Majeure Event except where both Parties mutually agree to a substitute Product. This ute Product. This oduct. Thi Agreement may be terminated by either Party with no further obligation to the other Party if such he other Party if such er Party if such Force Majeure Event prevents the performance of a material portion of the obligations hereunder e obligations hereunder gations hereunder and such Force Majeure Event is not resolved within twelve (12) months after the (12) months after the months after the commencement of such Force Majeure Event; provided,however, if Seller is the non-performing f Seller is the non-performiner is the non-perfo Party, Seller shall have up to ninety (90) days following such Force Majeure Event to obtain a orce Majeure Event to obtarce Majeure Event to o report from an independent, third party engineer stating whether the Projecher the Project is capable ofher the Project is capable ot is capable of being repaired or replaced within twenty-four (24) additional months or less from the date of the report nths or less from the date of hs or less from the da and provide Buyer a copy of the engineer’s report, at no cost to Buyer. If such engineer’s report o cost to Buyer. If such engito Buyer. If s concludes that the Project is capable of being repaired or replaced within such twenty-four (24) d or replaced within such twlaced within month period and Seller undertakes and continues such repair or resuch repair or replacement wuch repair or replacemplacement with due diligence, then Buyer shall not have the right to terminatete this Agreement pursuant this Agreement pursuant to this Section 15.1s Agr until the expiration of the period deemed necesnecessary by the engineer’sary by the engineer’s report (not to exceed ary by the twenty-four (24) months), after which time, Bume, Buyer may terminate uyer may terminate unless r may termithe Project has been repaired or replaced, as applicable, and the Sellerd the Seller has resumed andSeller has resume has resumed and is satisfying its performance obligations under this Agreement. ARTICLE 16 ARTICLEARTICLE 16 LIMITATIONS ON LIABILITY LIMITATIONS ON LIAMITATIONS O 16.1Disclaimer of Warranties. Warranties. anties EXCEPT AS SET FORTH HEREIN, THERE IST FORTH HEREIN, THEREFORTH HEREIN, NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PUS FOR A PARTICULAROR A PARTICRPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. TIES ARE DISCLAIMED. RE DISCLAIM 16.2Limitations on Liability. Limitations on Liability. itations on Liabi TO THE EXTENT ALLOWED BY APPLICABLTO THE EXTENT ATO THE EXTENT ALLOWE LAW, THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS THE EXPRESS RTHE EXPRESS REME AGREEMENT SATISFY THE ESSENTIAL PUAGREEMENTAGREEMENT SATISRPOSES HEREOF. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REROVISION FOR ROVMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE OVIDED, SUOVID SOLE AND EXCLUSIVE REMEDY, THE OBLIGORAND EA’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT FO This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 54 Exhibit 'A' LAW OR IN EQUITY ARE WAIVED, UNLESS THE PROVISION IN QUESTION PROVIDES THAT THE EXPRESS REMEDIES ARE IN ADDITION TO OTHER REMEDIES THAT MAY BE AVAILABLE. EXCEPT FOR A PARTY’S INDEMNITY OBLIGATION IN RESPECT OF THIRD PARTY CLAIMS OR AS OTHERWISE EXPRESSLY HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR FIT OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR TORT O CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. UNLESS E. UNLESSLE EXPRESSLY HEREIN PROVIDED, AND SUBJECT TO THE PROVISIONS OF ARTICLE NS OF ARTICLE ARTICLE 11, IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED HEREIN IMPOSED EIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE T REGARD TO THE GARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY NEGLIGENCE OF ANY GENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR T OR CONCURRENT, ORCONCURREN ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID ES REQUIRED TO BE PAQUIRED TO BE HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE ACKNOWLEDGE THATACKNOWLEDGE THAT DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE DETERMINE, OR OTHDETERMINE, OR OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE DAMAGES ONVENIENT AND THE ENIENT AND CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF REASONABLE APPROXNABLE AP THE HARM OR LOSS. ARTICLE 17 TICLEE 17 17 DISPUTE RESOLUTION TE RESOLUTION OLUTION 17.1Intent of the Parties. Except as provided in the next sentence, the sole sentence, the sole proceduree, the sole procprocedure to resolve any claim arising out of or relating to this Agreement or any related agreement or any related agreement y related agree(a “Dispute”) is the dispute resolution procedure set forth in this ARTICLE 17. Either ARTICLE 17LE. Either PartyEitherParty may seek a preliminary injunction or other provisional judicial remedy if such action is necemedy if such action is neceif such action issary to prevent irreparable harm or preserve the status quo, in which case both Parties nonetheleshich case both Parties nonehich case both Partiess will continue to pursue resolution of the Dispute by means of the dispute resolution s of the dispute resolution prof the dispute resoluprocedure set forth in this ARTICLE 17. 17.2Management Negotiations. Management Negotiations. nt Negotiat The Parties will attempt in good faith to resolve any Disputeby prompt The negotiations between each Partynegotiations negotiations betwe’s authorized representativedesignated in writing as a representative of the Party (each a representrepresentative o“Manager”). Either Manager may, by Notice to the other Party,request a meeting to initiate negotiother Party,ations to be held within ten (10) Business Days of the other PartyDDays of t’s receipt of such request, at a mutually agreed time and place (either in person or telephonically). If the mat(e(either ter is not resolved within fifteen (15) Business Days of their first meeting (us“Initial Negotiation End Date”), the Managers This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 55 Exhibit 'A' shall refer the matter to the designated senior officers of their respective companies that have authority to settle the dispute (“Executives”). Within five (5) Business Days of the Initial Negotiation End Date (“Referral Date”), each Party shall provide one another Notice confirming the referral and identifying the name and title of the Executive who will represent the Party. Within five (5) Business Days of the Referral Date, the Executives shall cutives shs s establish a mutually acceptable location and date, which date may not be later thanthirty ater thanthirtythir (30) days afterthe Referral Date, tomeet. After the initial meeting date, the Executives e, the Executives Executive shall meet, as often as they reasonably deem necessary, to exchange relevant information relevant information ant information and to attempt to resolve the dispute. All communication and writing exchanged between the Parties in ed between the Parties inetween the Part connectionwith these negotiations shall be confidential and shall not be used or referred nd shall not be used or referl not be used or r to in any subsequent binding adjudicatory process between the Parties.een the Parties.een the Partie If the matter is not resolved within forty-five (45) days of the Referral hin fortyfo-five (45) days of t(45 Date, or if the Party receiving the Notice to meet, pursuant to Section 17.2(a) above, meet, pursuant to pursuant to Section S refuses or does not meet within the ten (10) Business Day period specified in Section 0) Business Day period spe0) Business Day perio 17.2(a) above, and subject to Sections 16.2,19.72,19.79.7 and 19.8 of this Agreement, either Party a and 19.8 of this Agr may pursue all remedies available to it at law or in equity. at law or in equity. w or in equ 17.3Specific Performance and Injunctive Relief. ctive Relief. Relief. Each Party shall be entitled to seek a decree coek a decree compelling speca decree compellmpelling specific performance with respect to, and shall be entitled, without the necessity of e necessity of filing any bonssity of filing anfiling any bond, to seek the restraint by injunction of, any actual or threatened breach of any materiabreach of any material obch of any matl obligation of the other Party under this Agreement. The Parties in any action for specn any action for specific pection for specifific performance or restraint by injunction agree that they shall each request that all expenses inquest that all expenses incuthat all expencurred in such proceeding, including, but not limited to, reasonable counsel fees, be apportionee counsel fees, be apportionensel fees, be appod in the final decision based upon the respective merits of the positions of the Parties. ions of the Parties. ons of the Parties. ARTICLE 18 NOTICES 18.1Notices. Notices. ice Whenever this Agreement requires or permits delivery of a Whenever this AgreWhenever this Agreement“Notice” (or requires a Party to “notify”), the Party with such righ“notify”), the Pa“notify”), the Party witt or obligation shall provide a written communication in the manner specified in herein and to the addressemanner specifiemanner specified in hs set forth below; provided, however, that Notices of Outages or other SchedulinOutages or otOutag or dispatch information or requests, shall be provided in accordance with the terms set forth in the relevandance witdant section of this Agreement. Invoices may be sent by facsimile or e-mail. A Notice sent by acsifacsimile transmission or e-mail will be recognized and shall be deemed received on the Business Day on which such Notice was transmitted if This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 56 Exhibit 'A' received before 5:00 p.m. (and if received after 5:00 p.m., on the next Business Day) and a Notice of overnight mail or courier shall be deemed to have been received two (2) Business Days after it was sent or such earlier time as is confirmed by the receiving Party. Each Party shall provide Notice to the other Party of the persons authorized to nominate and/or agree to a Schedule or Dispatch Order for the delivery or acceptance of the Product or make other Notices on behalf of such Party and specify the scope of their individual authority and responsibilities, sibi and may change its designation of such persons from time to time in its sole discretion by iscretionon providing Notice. If to Seller: Bluebell Solar II, LLC c/o NextEra Energy Resources, LLC 700 Universe Boulevard Juno Beach, FL 33408 Attn: John DiDonato, Vice President Telephone: (561) 691-7232 Facsimile: (561) 691-7307 If to Buyer: Denton Municipal Electric 1659 Spencer Road Denton, TX 76205 Attn: General Manager ger Telephone: (940) 349-8487 40) 349-8487 49-8487 Facsimile: (940) 349-7334 (940) 349-7334 940) 349-7334 With a copy to: City Attorney orney 215 E. McKinney Street . McKinney Street Kinney Street Denton City Hall nton City Hall y H Denton, Texas 76201 Denton, Texas 76201 on, Texas 76201 Telephone: (940) 349-8333 Telephone: (940) 349-Telephone: (940) Facsimile: (940) 382-7923 Facsimile: (940) 3Facsimile: (9 ARTICLE 19 MISCELLANEOUS 19.11Effectiveness of Agreement; Survival. Effectiveness oEffectiveness of Agreem This Agreement shall be in full force and effect, This Agreement shaThis Agreement shall be ienforceable and binding in all respects as of the Effective Date until the conclusion of the Term or Effective Date uEffective Date until thearlier termination pursuant to the terms of this Agreement; provided however, that this Agreemenhis Agreement; prohis Agt shall remain in effect until (i) the Parties have fulfilled all obligations under this Agreemene fulfilled all e fulft, including payment in full of amounts due for the Product delivered prior to the end of the oduct ddTerm, the Settlement Amount, indemnification payments or other damages (whether directly or indirectly such as through set-off or netting) and This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 57 Exhibit 'A' (ii) the undrawn portion of the Project Development Security or Delivery Term Security, as applicable, is released and/or returned as applicable (if any is due). All indemnity rights shall survive the termination or expiration of this Agreement for the longer of twelve (12) months or the expiration of the statute of limitations period of the claim underlying the indemnity obligation.Notwithstanding any provisions herein to the contrary, the obligations set forth in Sections 13.1 and ARTICLE 16, the indemnity obligations set forth in ARTICLE 11, and the , an limitations on liabilities set forth herein shall survive (in full force) the expiration or termination terminatina of this Agreement. 19.2Audits. Each Party has the right, at its sole expense and during normal working hours, to examine the ing hours, to examine the rs, to examine the records of the other Party to the extent reasonably necessary to verify the accuracy of any verify the accuracy of anyfy the accuracy statement, charge or computation made pursuant to this Agreement. If any such examination ment. If any such examinatf any such exam reveals any inaccuracy in any statement, the necessary adjustments in such statement and the tments in such statement atments in such statement a payments thereof will be made promptly and shall bear interest calculated at the Interest Rate nterest calculated at the Inteerest calculated at th from the date the overpayment or underpayment was made until paid; provided, however, that no de until paid; provided, howntil paid; provi adjustment for any statement or payment will be made unless objection to the accuracy thereof de unless objection to the acs objection to was made prior to the lapse of twelve (12) months from the rendition therfrom the rendition thereof, from the rendition theeof, and thereafter any objection shall be deemed waived except to the extent any misinformation was from a third party extent any misinformation wany not affiliated with any Party and such third partarty corrects its informationy corrects its information after such twelve (12)-orrects its month period. 19.3Amendments. This Agreement shall not be modified nor amenodified nor amended unless snor amended unded unless such modification or amendment shall be in writing and signed by authorized representatives of both Parties. authorized representatives ofized representat 19.4Waivers. Failure to enforce any right or obligation by any e any right or obligation bany right or obligParty with respect to any matter arising in connection with this Agreement shall not constitute a waiver as to that matter nor to any other th this Agreement shall not s Agreement sha matter. Any waiver by any Party of its rights withy waiver by any Party of itser by any Party respect to a default under this Agreement or with respect to any other matters arising in connectipect to any other matters ariy other matton with this Agreement must be in writing. Such waiver shall not be deemed a waiver with waiver shall not be deemed ar shall not be deerespect to any subsequent default or other matter. 19.59.59.5Severability. Severability. Severability. If any of the terms of this Agreement are finally If any of the termIf any of the terms of thheld or determined to be invalid, illegal or void, all other terms of the Agreement shall remain in effect; ll other terms of thll othprovided that the Parties shall enter into negotiations concerning the terms affectedotiations conotiatio by such decision for the purpose of achieving conformity with requirements of any Applicamity wimible Law and the intent of the Parties. This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 58 Exhibit 'A' 19.6Standard of Review. Absent the agreement of the Parties to the proposed change, the standard of review for changes to this Agreement proposed by a Party, a Person or the Federal Energy Regulatory Commission acting sua sponte shall be the “public interest”application of the “just and reasonable” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 U.S (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956), as (1956),6) clarified by Morgan Stanley Capital Group, Inc. v. Public Util. Dist. No. 1 of Snohomish, 554 nohomish, 554h, 5 U.S. 527 (2008) (the “Mobile-Sierra” doctrine). 19.7Governing Law. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES UTIES OF THE PARTIESS OF THE PAR HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED AND TRUED, ENFORCED AND, ENFORCED PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,OF THE STATE OF TEOF THE STATE OF TE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. TO THE EXTENT TS OF LAW. TO THE ES OF LAW. TO T ENFORCEABLE AT SUCH TIME, EACH PARTY WAIVES ITS RESPECTIVE RIGHT TO AIVES ITS RESPECTIVE ES ITS RESP ANY JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER OR IN ITIGATION ARISING UNTION ARISIN CONNECTION WITH THIS AGREEMENT. This Agreement was executed in the State in the State of Texas and e State ofof Texas and must in all respects be governed by, interpreted, construed, and shall be exclusively enforced in accordance with the shall be exclusively enforceexclusively laws of the State of Texas. It is agreed that ththat the provisions and oblighe provisions ane provisions and obligations of this Agreement are performable in the City of Denton, Denton County,Denton County, Texas. VDenton County, Tex Texas. Venue shall lie for any lawsuit dealing with this Agreement in the appropriate fedee appropriate federal court inpropriate federal ral court in Texas, or, if the federal courts do not have jurisdiction, in the State District te District Courts in and for Dict Courts in anCourts in and for Denton County, Texas. 19.8Waiver of Trial by Jury. by Jury. ury. EACH OF THE PARTIES HERETO HEREE PARTIES HERETO HEPARTIES HERETBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT EITHLLY WAIVES THE RIGHWAIVES THEER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, IN RESPECT OF ANY LITSPECT OF ANY UNDER OR IN CONNECTION WITH THOR IN CONNECTION WCONNECTIS AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED INTEMPLATED TO BE EXLATED TO B CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL URSE OF CONDUCT, COURSE OF COND OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A OR WRITTEN) OROR WRITTEN) OR ACT MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT. MATERIAL INDUCMATERIAL INDUCEME 19.99.99.9Attorneys’ Fees.Attorneys’ F In any proceeding brought to enforce this Agreproceedpement or because of the breach by any Party of any covenant or condition herein nacontained, the prevailing Party shall be entitled to reasonable This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 59 Exhibit 'A' attorneys’ fees (including reasonably allocated fees of in-house counsel) in addition to court costs and any and all other costs recoverable in said action. 19.10No Third-Party Beneficiaries. Except as set forth in Sections 14.1, 14.4 and ARTICLE 16, this Agreement is intended solely ed for the benefit of the Parties hereto and nothing contained herein shall be construed to create any o create ate duty to, or standard of care with reference to, or any liability to, or any benefit for, any Person or, any Personers not a Party to this Agreement. 19.11No Agency. This Agreement is not intended, and shall not be construed, to create any association, joint create any association, jointany association venture, agency relationship or partnership between the Parties or r to impose any such obligatto impose any such obligation pose any such ob or liability upon either Party. Neither Party shall have any right, power or authority to enter into ht, power or authority to enteht, power or authority to ent any agreement or undertaking for, or act as or be an agent or representative of, or otherwise bind, r representative of, or otherwrepresentative of, or o the other Party. 19.12Cooperation. The Parties acknowledge that they are entering into a long-term arrangement in which the ring into a long-term arrannto a lo cooperation of both of them will be required. red. If, during the Term, cIf, during the Term, changes in the operations, during the T facilities or methods of either Party will materialmaterially benefit a Party wrially benefit a Paly benefit a Party without detriment to the other Party, the Parties commit to each other to makher to make Commercially Rmake Commercie Commercially Reasonable Efforts to cooperate and assist each other in making such change. ch change. change. 19.13Further Assurances. Upon the receipt of a written rewritten request from the ten request froquest from the other Party, each Party shall execute such additional documents, instruments and assurants, instruments and assuranstruments and aces and take such additional actions as are reasonably necessary and desirable to carry out thary and desirable to carry ory and desirable to e terms and intent hereof. Neither Party shall unreasonably withhold, condition or delay its compliance with any reasonable request made withhold, condition or delaold, condition or pursuant to this Section 19.13.this Section ction19.1319.1. 19.14Captions; Construction. Captions; Construction. tions; Constructi All indexes, titles, subject headings, section tiAll indexes, titles, subAll indexes, titles, subject hetles, and similar items are provided for the purpose of reference and convenience and are not intended toof reference and conof reference and convenie affect the meaning of the content or scope of this Agreement. Any term and provision of this Agreement shall be construed simply of this Agreemof this Agreement. A according to its fair meaning and not strictly for or against any Party. according to itsaccording to its fair m This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 60 Exhibit 'A' 19.15Entire Agreement. This Agreement shall supersede all other prior and contemporaneous understandings or agreements, both written and oral, between the Parties relating to the subject matter of this Agreement. 19.16Forward Contract. The Parties acknowledge and agree that this Agreement constitutes a “forward contract” within contract” within act” withi the meaning of the United States Bankruptcy Code. 19.17Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and fwhich shall be an original ashall be an origi all of which together shall constitute but one and the same instrument. ument. ument. \[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK ALLY LEFT BLANK LY LEFT BL–– SIGNATURES APPEAR ON FOLLOWING PAGE\] OLLOWING PAGE\] WING PAGE This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 61 Exhibit 'A' Exhibit 'A' EXHIBIT A PRODUCT CONTRACT PRICE PERIODPRODUCT CONTRACT PRICE($/MWh)($/MWh From and including the Commercial Operation $20.9999 Date through the remainder of the Delivery Term A-1 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' EXHIBIT B DESCRIPTION OF PROJECT Seller intends to build, own and operate a 100 MW photovoltaic solar energy generation facility on faciliil on a site located in Sterling County, Texas located in Sterling County, Texas. The Project will Project will will generate electrical power that will be sold wholesale. As presently planned, the Project will consist of: Solar equipment Electrical transformation equipment located at the Project ect ect An underground and aboveground electric cable collection system to carry electricity to collection system to carry election system to the substation An underground and aboveground fiber-optic data collection systemr-optic data collection systemc data col Permanent meteorological (“MET”) towerET”) towertower(s)(s)(s) A temporary construction lay down arean lay down areaown area Maintenance/field office(s) d office(s) ) Solar Under Wind Metering r Wind Metering r Wind Metering B-1 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' o All quantities of Energy purchased hereunder will be adjusted to account for electrical losses between the Project and the Delivery Point so that the purchased amount reflects the net amount for each wind and solar customer at the Delivery Point. Seller will install two or more programmable meters, such as PowerLogic ION8650 or Landis & Gyr E 850 Maxsys, to separate the wind and solar generation and account for each separately. Nothing in this Agreement or Exhibit B is intended to either (i) limit the right of Seller to make of Seller to make ller to make any changes to the Project it determines to undertake, or (ii) grant any rights to Buyer regarding ts to Buyer regardingBuyer regarding the description, nature or components of the Project. This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. 2 Exhibit 'A' EXHIBIT C DESCRIPTION OF DELIVERY POINT AND ONE-LINE DIAGRAM /ƚƓĭĻƦƷǒğƌ LƓƷĻƩĭƚƓƓĻĭƷźƚƓ 5źğŭƩğƒ .ƌǒĻĬĻƌƌ {ƚƌğƩ LL \[/w!͸ƭ 5źǝźķĻ 345kV Substation MTMT Point of Interconnection PoPoint of Interconne & Metering& Meterin Main TransformerMain T 345/34.5kV3 S1S1S2 MM WWW MM Bluebell Bluebell Solar - I Solar - II 30 MW 100 MW Capricorn Capr Ridge 4 Windfarm \[TO BE UPDATED BY SELLER WHEN APPLICABLE\] C-1 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' EXHIBIT D GEP DAMAGES CALCULATION In accordance with the provisions in Section 3.21(c), GEP Damages means the liquidated ated damages payment due by Seller to Buyer, calculated as follows: \[(A –B) X (C –D)\] Where: A = the Guaranteed Energy Production for the Performance Measurement Period, in Measurement Period, in urement Period, MWh B = Sum of Delivered Energy plus Deemed Delivered Energy, if any, over the red Energy, if any, over the Energy, if any, ove Performance Measurement Period, in MWh C = Replacement price for the Performance Measurement Period, in $/MWh, which is the e Measurement Period, in $/MMeasurement Period, sum of (a) the simple average of the RTSPP for all the fifteen (15) minute settlement SPP for all the fifteen (15) mor all th periodsin the Performance Measurement Period, as published by ERCOT,at the Delivery ment Period, as published by riod, as pub Point pricing node D = the Contract Price In no event shall GEP Damages exceed $200/MWh. If the difference between C and D is s exceed $200/MWh. If the eed $200/MWh. I negative, no GEP Damages shall be pashall be payable from Sellerbe payable fromyable from Seller to Buyer. D-1 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' EXHIBIT E FORM OF GUARANTY THIS GUARANTY (this “Guaranty”), dated as of ___, 2018,(the “Effective Date”), is made by NEXTERA ENERGY CAPITAL HOLDINGS, INC. (“Guarantor”), in favor of the CITY OF DENTON, TEXAS, aTexas home-rule municipal corporation in the State of Texas of (“Counterparty”). RECITALS: A.WHEREAS, Counterparty and Guarantor’s indirect, wholly-owned subsidiary Bluebell ned subsidiary Bluebell ubsidiary Bluebell Solar II, LLC (“Obligor”), have entered into, or concurrently herewith are entering into, herewith are entering into, are entering into, that certain Power Purchase Agreement dated as of ____, 2018 (together, the ____, 2018, 2018 (together, th (togethe “Agreement”); and B. WHEREAS, Guarantor will directly or indirectly benefit from the transaction to be ybenefit from the transactibenefit from the tra entered into between Obligor and Counterparty pursuant to the Agreement. ursuant to the Agreement. ant to the Agre NOW THEREFORE, in consideration of the foregoing premises and as an inducement the foregoing premises and e foregoing premises for Counterparty’s execution, delivery and performance of the Agreement, and for other good formance of the Agreementance o and valuable consideration, the receipt and d sufficiency of which is sufficiency of which is hereby acknowledged, iciency of Guarantor hereby agrees for the benefit of Counterparty as follows: Counterparty as follows: arty as follo 1.GUARANTY. Subject to the terms and provisions hereof, Guarantor hereby absolutely he terms and provisions hereterms and provi and irrevocably guarantees the timely payment when due of all obligations owing by Obligor to mely payment when due of payment when d Counterparty arising pursuant to the Agrent to the Agreement on the Agreemenement on or after the Effective Date (the “Obligations”). This Guaranty shall constitute a guarantee of payment and not of collection. ranty shall constitute a guarshall constitute The liability of Guarantor under this Guaranty r under this Guaranty shall bhis Guaranshall be subject to the following limitations: (a) Notwithstanding anything herein or in the Agreement to the contrary, the maximum nding anything herein or inding anything herein aggregate obligation and liability of Guarane obligation and liability ofbligation and liabiltor under this Guaranty, and the maximum recovery from Guarantor under this Guarantyery from Guarantor under tom Guarantor un, shall in no event exceed Seven Million Five Hundred Thousand U.S. Dollars (U.S. $7,500,000) (the Hundred Thousand U.S.red Thousae “Maximum Recovery AmountAmountnt”)”)); provided, however, that, upon and after the Commercial Operation Date (as ; provided, ; provided, howev defined in the Agreement), the Maximum Rdefined in the Agreemenned in the Agreecovery Amount shall be reduced to Four Million Five Hundred Thousand U.S. Dollars (U.S. $4,500,000). Million Five HMillion Five Hundred (b)(b(b) The obligation and liability of Guarantor under this Guaranty is specifically limited to The Theobligation aobli payments expressly required to be made undpayments expaymenter the Agreement, as well as costs of collection and enforcement of this Guaranty collection (including attorney’s fees) to the extent reasonably and actually incurred by the Crereasonabounterparty (subject in all instances, to the limitations imposed by the Maximum Recoveimitary Amount as specified in Section 1(a) above). In no event, however, shall Guarantor be liable for or obligated to pay any E-1 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' consequential, indirect, incidental, lost profit, special, exemplary, punitive, equitable or tort damages. 2.DEMANDS AND PAYMENT. (a) If Obligor fails to pay any Obligation to Counterparty when such Obligation is due and du owing under the Agreement (an “Overdue Obligation”), Counterparty may present a ay presensen written demand to Guarantor calling for Guarantor’s payment of such Overdue such Overdueerd Obligation pursuant to this Guaranty (a “Payment Demand”). (b)Guarantor’s obligation hereunder to pay any particular Overdue Obligationerdue ObligationObligation(s) to (s) to to Counterparty is conditioned upon Guarantor’s receipt of a Payment Demand from Payment Demand from nt Demand from Counterparty satisfying the following requirements: (i) such Payment Demand must uch Payment Demand musPayment Demand identify the specific Overdue Obligation(s) covered by such demand, the specific date(s) uch demand, the specific dath demand, the specific upon which such Overdue Obligation(s) became due and owing under the Agreement, and owing under the Agreand owing under the Agre and the specific provision(s) of the Agreement pursuant to which such Overdue pursuant to which such pursuant to which Obligation(s) became due and owing; (ii) such Payment Demand must be delivered to Payment Demand must be ment Demand Guarantor in accordance with Section 9 below; and (iii) the specific Overdue below; and (iii) the speand (iii) th Obligation(s) addressed by such Payment Demand must remain due and unpaid at the Demand must remain due Demand must remain time of such delivery to Guarantor. (c) After issuing a Payment Demand in accordd in accordance with the ordance witance with the requirements specified in Section 2(b) above, Counterparty shall not be rty shall not be required toall not be requirrequired to issue any further notices or make any further demands with respect to the Overdue Obligation(s) specified in that with respect to the Overdueith respect to the Payment Demand, and Guarantor shall be required to make payment with respect to the uarantor shall be required tontor shall be requ Overdue Obligation(s) specified in that Payment Demand within five (5) Business Days specified in that Payment Dfied in that Paym after Guarantor receives such deives such demand. As useuch demand. Amand. As used herein, the term “Business Day” shall mean all weekdays (i.e., Monday through Friday) other than any weekdays during which ys (i.e., Monday through FriMonday thr commercial banks or financial institutions are aunks or financial institutions r financial instituthorized to be closed to the public in the State of Florida, the State of Texas or the State of New York. rida,idthe State of Texas or the State of Texa 3. REPRESENTATIONS AND WARRANTIESRESENTATIONS AND WANTATIONS AN. Guarantor represents and warrants that: (a) it is a corporation duly organized and valiit is a corporation duly orga corporation duldly existing under the laws of the State of Florida and has the corporate power and authoriFlorida and has the corpoida and has the ty to execute, deliver and carry out the terms and provisions of the Guaranty; terms and provterms and provisions o (b)(b(b) no authorization, approval, consent or order of, or no authorization,no autho registration or filing with, any court or other governmental body having jurisdiction over Guarantor is required on the part of other governmhergo Guarantor for the execution and delivery of this Guaranty; and Guarantor f (c) this Guaranty constitutes a valid and legalhis Gly binding agreement of Guarantor, enforceable against Guarantor in accordance with the terms hereof, except as the enforceability E-2 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity. 4. RESERVATION OF CERTAIN DEFENSES. Without limiting Guarantor’s own defenses and rights hereunder, Guarantor reserves to itself all rights, setoffs, counterclaims and aim other defenses to which Obligor is or may be entitled arising from or out of the Agreement, Agreemeem except for defenses (if any) based upon the bankruptcy, insolvency, dissolution or liquidation of r liquidation ofon Obligor or any lack of power or authority of Obligor to enter into and/or perform the Agreement.m the AgreemenAgreement.t 5. AMENDMENT OF GUARANTY. No term or provision of this Guaranty shall be this Guaranty shall be Guaranty shall be amended, modified, altered, waived or supplemented except in a writing signed by Guarantor iting signed by Guarantor ned by Guarantor and Counterparty. 6. WAIVERS AND CONSENTS. Subject to and in accon accordance with the termn accordance with the termrdance with the terms and provisions of this Guaranty: (a) Except as required in Section 2 above, Guarantor hereby waives (i) notice of acceptance ntor hereby waives (i) noticby waives (i) of this Guaranty; (ii) presentment and demand concerning the liabilities of Guarantor; and and concerning the liabilitiesd concerning the liab (iii) any right to require that any action or proceeding be brought against Obligor or any or proceeding be brought agoceedi other person, or to require that Counterpartunterparty seek enforcemearty seek y seek enforcement of any performance against Obligor or any other person, prior to ann, prior to any action againstany action ay action against Guarantor under the terms hereof. (b) No delay by Counterparty in the exercise y in the exercise of (or failurthe exercise of (oof (or failure by Counterparty to exercise) any rights hereunder shall operate as a waiver of suoperate as a waiver of such re as a waiver of sch rights, a waiver of any other rights or a release of Guarantor from its obligations r from its obligations hereum its obligationshereunder (with the understanding, however, that the foregoing shall not be deemed to constitute a waiver by Guarantor of any rights g shall not be deemed to conot be deem or defenses which Guarantor may at any time hahich Guarantor may at any tiGuarantor may at ve pursuant to or in connection with any applicable statutes of limitation). tatutes of limitation). tatutes of limitation). (c) Without notice to or the consent of Guut notice to or the consenotice to or the carantor, and without impairing or releasing Guarantor’s obligations under this Guaranty, Counterparty may: (i) change the manner, arantor’s obligations under s obligation place or terms for payment of all or any of the Obligations (including renewals, place or terms for paymeor terms for p extensions or other alterations of the Obligatextensions or other alternsions or other ions); (ii) release Obligor or any person (other than Guarantor) from liability for pa(other than Gu(other than Guarantor)yment of all or any of the Obligations; or (iii) receive, substitute, surrender, exchange or releareceive, substireceive, substitute, se any collateral or other security for any or all of the Obligations. or all of tor all of the Oblig 7. REINSTATEMENTREINSTA. Guarantor agrees that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, if alall be reinsall bl or any part of any payment made hereunder is at any time avoided or rescinded or must otherwise be e avorestored or repaid by Counterparty as a result of the bankruptcy or insolvency of Obligor, all as though such payments had not been made. E-3 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' 8. TERMINATION.Unless terminated earlier, this Guaranty and the Guarantor’s obligations hereunder will terminate automatically and immediately upon the earlier of (i) termination of the Agreement or (ii) June 30, 2041; provided, however, that no such termination shall affect Guarantor's liability with respect to any Obligations arising under any transactions entered into prior to the time the termination is effective, which Obligations shall remain subject n su to this Guaranty. 9. NOTICE. Any Payment Demand, notice, request, instruction, correspondence or other pondence or other ce or othe document to be given hereunder (herein collectively called “Notice”) by Counterpartyby CounterpartyCounterparty to to to Guarantor, or by Guarantor to Counterparty, as applicable, shall be in writing and may be n writing and may be ting and may be delivered either by (i) U.S. certified mail with postage prepaid and return receipt requested, or eturn receipt requested, or eipt requested, or (ii) recognized nationwide courier service with delivery receipt requested, in either case to be quested, in either case to bed, in either case delivered to the following address (or to such other U.S. address as may be specified via Notice as may be specified via Noas may be specified via provided by Guarantor or Counterparty, as applicable, to the other in accordance with the the other in accordance wthe other in accordance w requirements of this Section 9): TOGUARANTOR: *TO COUNTERPARTY:#COUNTERPARTY:ERPARTY:## NextEra Energy Capital Holdings, Inc.City of Denton, TexasCity of Denton, Texasty of Denton, Texas 700 Universe Blvd.c/oc/oDenton Municipal ElectricDentoDenton Municipal Ele Juno Beach, Florida 334081659 Spencer Road1659 Spencer Road659 Spence Attn: TreasurerDenton, TX 76205Denton, TX 76205enton, TX 7 Attn:Attn:Attn:General ManagerGeneGeneral Ma \[Tel: (561) 694-6204 --for use in connection in connection onnection \[Tel: (940)349-8487--for use in connection \[Tel: \[Tel: (940) with courier deliveries\]with courier deliveries\]witwith cou *(NOTE: Copies of any Notices to Guarantor under this Guaranty shall also be sent via of any Notices to Guarantootices to G facsimile to ATTN: Contracts Group, LegalTTN: Contracts Group, LegContracts Group, Fax No. (561) 625-7504 and ATTN: Credit Department, Fax No. (561) 625-7642. However, such facsimile transmissions shall not t, Fax No. (561) 625-7642. , Fax No. (561) 6 be deemed effective for delivery purposes under this Guaranty.) ed effective for delivery purpffective for delivery #(NOTE: Copies of any Notices to CounterparOTE: Copies of any NoticeCopies of anyty under this Guaranty shall also be sent via facsimile to ATTN: City Attorney’s Office, via facsimile to ATTN: City acsimile to ATTNCity of Denton, Texas, Fax No.. However, such facsimile transmissions shall not be such facsimile transmissh facsimile trandeemed effective for delivery purposes under this Guaranty.)this Guaranty.)this Guaranty.) Any Notice given in accordance with this Section Any Notice giveAny Notice given in ac9 will (i) if delivered during the recipient's normal business hours on any given Business Day, be deemed received by the designated normal businesnormal business hou recipient on such date, and (ii) if not deliveipient on such ipienred during the recipient's normal business hours on any given Business Day, be deemed received by given Busgivethe designated recipient at the start of the recipient's normal business hours on the next Business Day after such delivery. 's no E-4 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' 10. MISCELLANEOUS. (a) This Guaranty shall in all respects be governed by, and construed in accordance with, the law of the State of New York, without regard to principles of conflicts of laws thereunder (other than Sections 5-1401 and 5-1402 of the New York General Obligations Law). (b) This Guaranty shall be binding upon Guarantor and its successors and permitted assigns tted assigssi and inure to the benefit of and be enforceable by Counterparty and its successors and successors ands an permitted assigns. Guarantor may not assign this Guaranty in part or in whole without in whole without ole withou the prior written consent of Counterparty. Counterparty may not assign its rights or assign its rights or gn its rights or benefits under this Guaranty in part or in whole without the prior written consent of rior written consent of written consent of Guarantor. (c) This Guaranty embodies the entire agreement and understanding between Guarantor and tanding between Guarantor anding between Guarant Counterparty and supersedes all prior agreements and understandings relating to the nd understandings relating nd understandings relating subject matter hereof. (d) The headings in this Guaranty are for purposes of reference only, and shall not affect the s of reference only, and sharence only, a meaning hereof. Words importing the singular ular number hereunder shalllar number hereundernumber hereunder shall include the plural number and vice versa, and any pronouns usedouns used herein shall be used herein shall be deemed to cover all genders. The term "person" as used heused herein means any iherein merein means any individual, corporation, partnership, joint venture, limited liability liability company, associacompany, association, joint-stock company, company, a trust, unincorporated association, or government n, or government (or any aggovernment (or (or any agency or political subdivision thereof). (e) Wherever possible, any provision in this Guaranty which is prohibited or unenforceable y provision in this Guarantyvision in this Gua in any jurisdiction shall, as to such jurisdichall, as to such jurisdiction,s to such jurisdtion, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and enforceability without invalibility witho any such prohibition or unenforceability in any one jurisdiction shall not invalidate oribition or unenforceability n or unenforceab render unenforceable such provision in any other jurisdiction. forceable such provision in aforceable such provisi (f) Counterparty (by its acceptance of this Guaranerparty (by its acceptance ofy (by its acceptaty) and Guarantor each hereby irrevocably: (i) consents and submits to the exclusive jconsents and submits to thes and submiurisdiction of the United States District Court for the Southern District of New York, orfor the Southern District ofe Southern Distr if that court does not have subject matter jurisdiction, to the exclusive jurisdiction jurisdiction, to the exclussdiction, to the eof the Supreme Court of the State of New York, New York County (without prejudice to the riNew York CoNew York County (wght of any party to remove to the United States District Court for the Southern DistStates DistrictStates District Courrict of New York) for the purposes of any suit, action or other proceeding arising out of this action oraction or other prGuaranty or the subject matter hereof or any of the transactions contemplated hereby of the transacfthetbrought by Counterparty, Guarantor or their respective successors or assigns; and (ii)respective waives (to the fullest extent permitted by applicable law) and agrees not toapapplicab assert any claim that it is not personally subject to the jurisdiction of the above-named courts, that the suit, action or proceeding is brought in an urisd E-5 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Guaranty or the subject matter hereof may not be enforced in or by such court. (g) COUNTERPARTY (BY ITS ACCEPTANCE OF THIS GUARANTY) AND GUARANTOR EACH HEREBY IRREVOCABLY, INTENTIONALLY AND VOLUNTARILY WAIVES THE RIGHT TO TRIAL BY JURY WITH RESPECT TO EC ANY LEGAL PROCEEDING BASED ON, OR ARISING OUT OF, UNDER OR IN DER OR OR CONNECTION WITH, THIS GUARANTY OR THE AGREEMENT, OR ANY NT, OR ANYAN COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER NTS (WHETHER WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON RELATING HERETO ELATING HERETO ING HERETO OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO INDUCEMENT TO UCEMENT TO GUARANTOR’S EXECUTION AND DELIVERY OF THIS GUARANTY.GUARANTY.NTY IN WITNESS WHEREOF, the Guarantor has executed this Guaranty on _____________, 20__, Guaranty on _____________uaranty on _____________ but it is effective as of the Effective Date. NEXTERA ENERGY CAPITAL HOLDINGS, RA ENERGY CAPITAL HORGY CAPITA INC. By:___________________________________ By:_____________________________ Name:_________________________________ Name:________Name:_____________ Title:__________________________________ Title:____Title:____________ E-6 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' EXHIBIT F FORM OF LETTER OF CREDIT \[ISSUING BANK\] IRREVOCABLE STANDBY LETTER OF CREDIT DATE OF ISSUANCE: \[Date of issuance\] \[BENEFICIARY\](“Beneficiary”) \[Address\] Attention: \[Contact Person\] Re: \[ISSUING BANK\] Irrevocable Standby Letter of Credit No.________ ______ __ Messrs./Mesdames: We hereby establish in favor of Beneficiary (sometimes alternatively referred to natively referred to vely referred therein as “hereherein as you”) this Irrevocable Standby Letter of Credit No. _______ (the “Letter of Creditter of Creditf Cr”) for the account of \[”) for the accounr tNextEra Energy Capital Holdings, LLC\] \[--- Address ---\] and \[NextEra Energy Resources, LLC, (--- Address ---)xtEra Energy Resources, LLC, rgy Resources\] (“Account Parties”), effective immediately and expiring on the date determined as specified in numbered ng on the date determined as spon the date determined paragraphs 5 and 6 below. We have been informed that this Letter of Credit dit is issued pursuant to the teis issued pursuant to the terms of that certain \[ed pursuant tdescribe the underlying agreement which requires this LCis LCC\].\]. 1.Stated Amount.The maximum amount available for drawing by you under this Letter of Credit um amount available for drawiamount available f shall be \[written dollar amount\] United States Dollars (US$\[United States Dollars (US$\[States Dollars (Udollar amountdo\]) (such maximum amount referred to as the “Stated Amountnt”).”). 2.Drawings.A drawing hereunder may be made by you on any Business Day on or prior to the wing hereunder may be made under may date this Letter of Credit expires by delivering to t expires by delivering to res by delivering t\[ISSUING BANK\]\[ISS, at any time during its business hours on such Business Day, at y, at y, a\[bank address\]\[bank address\]ank address\] (or at such other address as may be designated by written notice (or at such( delivered to you as contemplated by numbered as contemplated by numberedcontemplated by nuparagraph 9 hereof), a copy of this Letter of Credit together with (i) a Draw Certificate executed by (i) a Draw Certificate executDraw Certificate an authorized person substantially in the form of Attachment AAhereto (the “hereto (the “o (the “Draw CertificateDraw CeDraw Certific”), appropriately completed and signed by your authorized officer (signing as such) and (ii) your draft substantially in the form of gning as such) and (ii) your druch) and (ii) yAttachment Bhereto (the “Draft”), appropriately completed and signed by your authorizedriately completed and signed y completed and s officer (signed as such). Partial drawings and multiple presentations may be made under this Letter oftiple presentations may be maple presentations m Credit. Draw Certificates and Drafts under this Letter of Credit may be presented by Beneficiary by means of facsimile or original documents sent by Letter of Credit may be presenetter of Credit may be overnight delivery or courier toovernight delivery or covernight delivery or courier\[ISSUING BANK\] at our address set forth above, Attention: ___________ (or at such other address as may be designated by (or at such other (or at such other addresswritten notice delivered to you as contemplated by numbered numbernumbered paragraph 9paragraph 9 below). In the event of a presentation by facsimile transmission, the original of such documents need not be sent to us. ch documents neech do 3. Time and Method for Payment.Time We hereby agree to honor a drawing hereunder made in compliance with this Letter of Credit by transferring in immediately available funds the amount specified F-1 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' in the Draft delivered to us in connection with such drawing to such account at such bank in the United States as you may specify in your Draw Certificate. If the Draw Certificate is presented to us at such address by 12:00 noon, \[_______\] time on any Business Day, payment will be made not later than our close of business on third succeeding business day and if such Draw Certificate is so presented to us after 12:00 noon, \[_______\] time on any Business Day, payment will be made on the fourth succeeding Business Day. In clarification, we agree to honor the Draw Certificate as specified in the preceding sentences, without regard to the truth or falsity of the assertions made therein. 4. Non-Conforming Demands.If a demand for payment made by you hereunder does not, in any does not, in any not, in an instance, conform to the terms and conditions of this Letter of Credit, we shall give you prompt notice you prompt notice ompt notic that the demand for payment was not effectuated in accordance with the terms and conditions of this and conditions of this onditions of this Letter of Credit, stating the reasons therefor and that we will upon your instructions hold any documents tions hold any documents hold any documents at your disposal or return the same to you. Upon being notified that the demand for payment was not emand for payment was not r payment was not effectuated in conformity with this Letter of Credit, you may correct any such non-conforming demand. uch non-conforming demand. n-conforming dem 5. Expiration.This Letter of Credit shall automatically expire at the close of business on the date e at the close of business on the at the close of business on t on which we receive a Cancellation Certificate in the form of Attachment CAttachment CttacC hereto executed by your hereto executedhereto ex authorized officer and sent along with the original of this Letter of Credit and all amendments (if any). of Credit and all amendmentsCredit and all am 6. Initial Period and Automatic Rollover.The initial period of this Letter of Credit shall e initial period of this Lettee initial period of this terminate on \[one year from the issuance date\] (the “Initial Expiration DateInitial Expiration Datenitial Expiration Da”). The Letter of Credit ”). shall be automatically extended without amendment for one (1) year periods from the Initial Expiration nt for one (1) year periods froone (1) Date or any future expiration date, unless at least sixty (60) days prior to any such expiration date we send sixty (60) days prior to any su60) days prio you notice by registered mail or courier at your address first shown (or such other address as may be your address first shown (or sss first show designated by you as contemplated by numbered mbered paragraph 9paragraph 9paragraph 9) that we elect not to consider this Letter of ) that) that we el Credit extended for any such additional one year period. one year period. ne year period. 7. Business Day.As used herein, “erein, “Business DayBusiness DayBusiness Day” shall mean any day on which commercial banks ” sh” shall m are not authorized or required to close in the State of \[New York\], and inter-bank payments can be to close in the State of \[Neose in the State effected on the Fedwire system. em. 8. Governing Law.aw.THIS LETTER OF CREDIT IS GOVERNED BY, AND CONSTRUED IN THIS LETTER OF CREHIS LETTER OF ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND, EXCEPT AS WITH THE LAWS OF THEITH THE LAWS OTHERWISE EXPRESSLY STATED HEREIN, TO THE INTERNATIONAL STANDBY EXPRESSLY STATED HRESSLY STATE PRACTICES, ICC PUBLICATION NO. ICC PUBLICATION NO. PUBLICATION 590 (THE “ISP98”), AND IN THE EVENT OF ANY CONFLICT, THE LAWS OF THE STATE OF NEW YORK WILL CONTROL, WITHOUT REGARD T, THE LAWS OF THE STATAWS OF TH TO PRINCIPLES OF CONFLICT OF LAWS. NCIPLES OF CONFLICT OF ES OF CONFLIC 9. Notices. Notices. Notices. All communications to you in respect of thisAll coAll communica Letter of Credit shall be in writing and shall be delivered to the address first shown for you shall be delivered to theshall be delivered to the addresabove or such other address as may from time to time be designated by you in a written notice to us. All documents to be presented to us hereunder and all be designated by yoube designated by you in a other communications to us in respect of this Letterother communicatother communications to of Credit, which other communications shall be in writing, shall be delivered to the address for us inwritingwriting, shall be delivdicated above, or such other address as may from time to time be designated by us in a written notice to you. me be designatme be 10. Irrevocability.rrevThis Letter of Credit is irrevocable. F-2 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' 11. Complete Agreement.This Letter of Credit sets forth in full our undertaking, and such undertaking shall not in any way be modified, amended, amplified or limited by reference to any document, instrument or agreement referred to herein, except for the ISP98 and Attachment A, Attachment BandAttachment C hereto and the notices referred to herein and any such reference shall not be deemed to incorporate herein by reference any document, instrument or agreement except as set forth above. * * * SINCERELY, \[ISSUING BANK\] ____________________________ ___ By: ________________________ ______ _ Title: _______________________ __________ ____ Address: F-3 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' ATTACHMENT A FORM OF DRAW CERTIFICATE The undersigned hereby certifies to \[ISSUING BANK\](“Issuer”), with reference to Irrevocable Letter of Credit No. ________________ (the “Letter of Credit”) issued by Issuer in favor of the undersigned undersi (“Beneficiary”), as follows: (1)The undersigned is the ____________ of Beneficiary and is duly authorized by Beneficiary to d by Beneficiary to eneficiary to execute and deliver this Certificate on behalf of Beneficiary. (2) Beneficiary hereby makes demand against the Letter of Credit by Beneficiary’s presentation of Beneficiary’s presentation of ry’s presentation of the draft accompanying this Certificate, for payment of _______________________ U.S. dollars _______________ U.S. dollar___________ U.S. (US$__________), which amount, when aggregated together with any additional amount that has ith any additional amount that additional amount not been drawn under the Letter of Credit, is not in excess of the Stated Amount (as in effect of of the Stated Amount (as in efof the Stated Amount (as in e the date hereof). (3)The conditions for a drawing by Beneficiary pursuant to \[ant to \[describe the draw conditions from the describe the drdescribe the draw cond underlying agreement\]. (4) You are hereby directed to make payment of the requested drawing to: (insert wire instructions) f the requested drawing to: (inequeste Beneficiary Name and Address: By: Title: Date: (5) Capitalized terms used herein and not otherwise defined herein shall have the respective used herein and not otherwise herein and not ot meanings set forth in the Letter of Credit. orth in the Letter of Credit. the Letter of Cred \[BENEFICIARYARYY\]\] By: By: By: Title: Title: Title: Date: e: e: F-4 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' ATTACHMENT B DRAWING UNDER IRREVOCABLE LETTER OF CREDIT NO. _________________ Date: PAY TO: \[BENEFICIARY\] U.S.$ ___________________ FOR VALUE RECEIVED AND CHARGE TO THE ACCOUNT OF LETTER OF CREDIT NO. CCOUNT OF LETTER OF NT OF LETT __________________. \[BENEFICIARY\] By: Title: Date: F-5 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' ATTACHMENT C CANCELLATION CERTIFICATE Irrevocable Letter of Credit No. _______________ The undersigned, being authorized by the undersigned (“Beneficiary”), hereby certifies on behalf of certifies on behalf of fies on behalf of Beneficiary to \[ISSUING BANK\](“Issuer”), with reference to Irrevocable Letter of Credit No. e Letter of Credit No. ter of Credit No. ______________ issued by Issuer to Beneficiary (the “Letter of Creditt”), that all obligations of ”), that all obligations of all obligations of \[PROJECT ENTITY\], an affiliate of the Account Parties, under the \[describe the underlying agreement cribe the underlying agreemenhe underlying agr which requires this LC\] have been fulfilled. Pursuant to Section 5 thereof, the Letter of Credit shall expire upon Issuer’s receipt of this certificate. n Issuer’s receipt of this certifiIssuer’s receipt of this Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set erein shall have the respectivhall have the r forth in the Letter of Credit. \[BENEFICIARY\] By: Title: Date: F-6 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' EXHIBIT G INSURANCE REQUIREMENTS Before the Commercial Operation Date, Seller shall procure and maintain the following minimum insurance, with insurers rated “A-” VII or higher by A.M. Best’s Key Rating Guide, that are licensed to do business in Texas: (a)Workers’ Compensation Insurance for statutory obligations imposed by imposed by by Applicable Law, including, where applicable, the Alternate Employer Endorsement, the ndorsement, the ment, the United States Longshoremen’s and Harbor Workers’ Act, the Maritime Coverage and the me Coverage and the verage and the Jones Act; (b)Employers’ Liability Insurance, including Occupational Disease, shall be cupational Disease, shall beional Disease, sh provided with a limit of (i) One Million Dollars ($1,000,000) for bodily injury per 00,000) for bodily injury ) for bodily inj accident, (ii) One Million Dollars ($1,000,000) for bodily injury by disease per policy, dily injury by disease per pdily injury by disease per and (iii) One Million Dollars ($1,000,000) for bodily injury by disease per employee; injury by disease per emplonjury by disease per e (c)Business Automobile Liability Insurance which shall apply to all owned, Insurance which shall applyce which shal non-owned, leased, and hired automobiles with a limit of One Million Dollars es with a limit of One es with a limit of ($1,000,000) per accident for bodily injury and property damage; y and property damage; d property damag (d)General Liability Insurance which shall apply to liability arising out of surance which shall apply twhich shall premises, operations, bodily injury, property ry, property damage, producoperty damage, pdamage, products and completed operations and liability insured under and insured contractinsured contract (contractuaed contract (cont (contractual liability), with a limit of One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) 000) per occurrence, Two) per occurrenc aggregate. The products and completed operatiand completed operations completed operatons coverage insurance shall be provided for the duration of any applicable warranty period; y applicable warranty periodicable warranty (e)Excess Liability Insurance which shall apply to Employers Liability, xcess Liability Insurance Liability Insu Commercial General Liability and Business Automobile Liability Insurance, required in General Liability and Businal Liability and B (b), (c), and (d) above, with a limit of Fid (d) above, with a limit ofd(d) above, with a ve Million Dollars ($5,000,000) per occurrence and Five Million Dollars ($5,000,000) aggregate; e Million Dollars ($5,000,00lion Dollars ($5,0 (f)Broad Form Property Insurance with (f)Broad Form Prad Flimits of insurance written on a probable maximum loss basis, including probable maximum loss bable maximum lsublimits for wind, earthquake, and flood exposures. exposures. osures. Except for Workers’ Compensation Insurance, BuyerExcept for Workers’ Except for Workers’ Comp shall be endorsed as an additional insured on Seller’s insurance policies required to be mainton Seller’s insuron Seller’s insurance poained under the Agreement and such policies shall provide for a waiver of subrogation in favor of Buyer. All policies of insurance required to shall provide foshall provide for a wa be maintained by Seller hereunder shall provide for a maintainemaind by severability of interests clause and include a provision tvision tvisihat Sellers’s insurance policies are to be primary and nonha-contributory to any insurance that may be maintained by or on behalf of Buyer. e tha G-1 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' In the event that any policy furnished by Seller provides for coverage on a “claims made” basis, the retroactive date of the policy shall be the same as the Effective Date, or such other date, as to protect the interest of Buyer. Furthermore, for all policies furnished on a “claims made” basis, Seller’s providing of such coverage shall survive the termination of the Agreement and the expiration of any applicable warranty period, until the expiration of the maximum statutory period of limitations in the State of Texas for actions based in contract or in tort. If coverage is ver on “occurrence” basis, Seller shall maintain such insurance during the entire term of the term of tof Agreement. Seller shall promptly provide evidence of the minimum insurance coverage required under the e required under the uired under the Agreement in the form of an ACORD certificate or other certificate of insurance. If any of the nsurance. If any of the nce. If any of the required insurance is cancelled or non-renewed, Seller shall within thirty (30) days provide thirty (30) days provide 30) days provide written notice to Buyer and file a new certificate of insurance with Buyer, demonstrating that the Buyer, demonstrating that the demonstrating th required insurance coverage to be maintained hereunder has been extended or replaced. Neither n extended or replaced. Neided or replaced. N Seller’s failure to provide evidence of minimum coverage of insurance following Buyer’s of insurance following Bof insurance following B request, nor Buyer’s decision to not make such request, shall release Seller from its obligation to ll release Seller from its oblrelease Seller from it maintain the minimum coverage provided for in this Exhibit G. ibit G. G. Sellershall be responsible for covering all deductibles associated with the foregoing insurance ibles associated with the forbles associated with th coverage. G-2 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' EXHIBIT H COMMERCIAL OPERATION CERTIFICATION This certificate (“Certification”) is delivered by Bluebell Solar II, LLC (“Sellerlle”) to Denton Municipal Electric (“Buyer”) in accordance with the terms of that certain Power rtain PowPo Purchase Agreement dated ______, 2018 (“Agreement”) by and between Seller and Buyer. Alland Buyer. Allr. A capitalized terms used in this Certification but not otherwise defined herein shall have the n shall have the l have th respective meanings assigned to such terms in the Agreement. Seller hereby certifies and hereby certifies and y certifies and represents to Buyer the following: (a)all necessary and material permits, consents, licenses, approvals, and nts, licenses, approvals, ancenses, approval authorizations required to be obtained by Seller from any Governmental Authority to any Governmental Authorityy Governmental Autho construct and/or operate the Project in compliance with Applicable Law and this e with Applicable Law an with Applicable Law an Agreement have been obtained and are in full force and effect; and effect; nd e (b)Seller is in compliance with this Agreement in all material respects; s Agreement in all material rment in all ma (c)the Project is available to commencecommence normal operationmence normal operations in accordance with Seller’s Operating Procedures, the construcnstruction contract, and apption contract, and applicable manufation contrcturers’ warranties; (d)Seller is obligated under, and in material compliance with, the igated under, and in maunder, and i Interconnection Agreement; ; (e)the Project is fully interconnected to the Transmission Operator’s System, oject is fully interconnected s fully intercon has been fully tested, has achieved initial ted, has achieved initial sys achieved initsynchronization, and has been successfully operated at a generation level acceptable generation level acceptabration level acto the Transmission Operator, without experiencing any abnormal or unsafe operating conditions on any interconnected system; any abnormal or unsafe opebnormal or unsaf (f)Seller has completed and met all tes(f)Seller has completedSeller has comting requirements of the Project and Seller’s Interconnection Facilities rer’s Interconnection Facilitieserconnection Facquired by the Interconnection Agreement; (g)Seller has used Commercially Reasonable Efforts to timely make, where (g)(g)Seller has usSeller h applicable, all necessary governmental filings applicable, all necessarylicable, all neceand/or applications for REC accreditation and registration; and registrationand registration; (h)Seller has made all other arrangements((h)Se necessary to deliver the Net Output of the Project to the Delivery Point; and of the Project hePr (i)(Seller has demonstrated the reliability of the Project’s communications systems and communication ysteinterface with Seller’s QSE. H-1 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' IN WITNESS WHEREOF, the undersigned has executed this Officer’s Certificate on behalf of the Seller as of the ___ day of ____________ 201__. BLUEBELL SOLAR II, LLC By: _______________________ _ Name: ___________________ ______ Title: ____________________ _____________ H-2 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' EXHIBIT I PROJECT INVESTOR NOTICE INFORMATION \[THIS PAGE INTENTIONALLY LEFT BLANK, BUT WILL BE UPDATED BY ATED BY Y SELLER WHEN APPLICABLE\] I-1 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A' EXHIBIT J OPERATING PROCEDURES CRITERIA The Operating Procedures for the Project to be agreed upon by Buyer and Seller pursuant to uant too Section 3.13 shall address, among others, the following: I.Energy Trades II.Capacity Trades III.Buyer Curtailment Orders IV.Outage Notification V.Day-Ahead Availability Notice VI.Contact Information J-1 This document and any attachments or exhibits thereto may contain information that is confidential, commercially- sensitive, proprietary, and/or public power utility competitive and financial information in accordance with the provisions of Texas Government Code, Section 552.101, 552.104, 552.110 and/or 552.133, and may be protected from required public disclosure. Exhibit 'A'