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L � � � � � �" , � � �.., � I � � ♦ WHEREAS, the City of Denton, Texas ("Denton") is a Texas home-rule municipal corporation that owns and operates an electric utility known by the trade name of Denton Municipal Electric ("DME"}; and WHEREAS, the City was one of several municipally-owned utilities ("MOU") participating in a request for praposal for the purchase of solar-generated electric power and capacity initiated by New Braunfels Utilities, an MOU of the City of New Braunfels ("NBU RFP"); and WHEREAS, a total of 37 entities submitted proposals for 123 different projects in response to the NBU RFP; WHEREAS, a multi-disciplinary team of DME employees and an outside consultant evaluated the submitted proposals in accordance with the terms of the NBU RFP and determined that the Samson Solar Energy, LLC project was among the highest rated; and WHEREAS, Samson Solar Energy, LLC, is a Delaware limited liability company ("Samson Solar"); WHEREAS, a Power Purchase Agreement ("PPA"} between Denton and Samson Solar has been negotiated that allows Denton to purchase from 75 MW of solar-generated electricity for a contractual term of twenty (15} years; and WHEREAS, the City Council finds that the PPA is a significant part of achieving Denton's goa] of ineeting the future needs of its electric customers with 100% renewable energy as set forth in its Renewable Resource Plan, 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 of Denton to comply with the provisions af any of its utility revenue bonds, as amended, which are issued and outstanding; and WHEREAS, the City Council finds that §252.022(a)(15) of the Texas Gavernment Code applies to the PPA and excepts the procurement af electricity fram the requirements af campetitive bidding; and WHEREAS, in accordance with the provisians of §551.086 af the Texas Government Cade, after due natice of the public meeting was provided as required by law, the PPA between the City and Samson Salar was submitted for final consideratian to Denton's Public Utilities Board ("PUB") on November 12, 2018; a majority af the PUB, a"Public Power Governing Body" as defined by State law, convened a Closed Meeting as permitted by law, and discussed, considered, and deliberated the PPA; and, in its Open Meeting praceeded ta take final action and recammend to the City Council that the PPA be recommended far approval by the City Council by a vote of m :�� u�� '� � � ) in favor to ....�,�..�` � ��'�'.....��,� � 0 ) �PPosed; and WHEREAS, in accordance with the provisions of §551.0$6 of the Texas Gavernment Code, after due public notice being given, the City Council, a"Public Pawer Utility Governing Body" under state law, the Council has discussed, deliberated, and considered the PPA in a Closed Meeting af the City Council an November 13, 2018, after receiving a legal opinion af counsel that the Contract is a proper item for consideration in its Closed Meeting, which item invalves competitive electric matters, including business and commercial informatian which, if disclosed, wauld give advantage ta its campetitors or prospective campetitors; and WHEREAS, the City Council has further determined and finds that specific infarmation contained in the PPA ta be entered inta between the City and Samsan Solar should be excepted from public disclosure, as permitted by the provisions of §552,133 af the Texas Government Code, as information that is reasonably related ta a campetitive electric matter ("Competitive Information"), the disclosure of which would pravide an advantage to its competitors ar prospective campetitors; and WHEREAS, the City Council has further determined that it is in the public interest that it should exercise its right under the Texas Gavernment Code ta lawfully safeguard and keep the Competitive Information cantained in the dacuments in the preceding paragraph sealed, as it is competitive electric and financial information; and WHEREAS, Denton desires to enter into such other arrangements in support af the PPA with Samson Solar which are incident and related to the PPA, including, but not limited ta, guaranties, letters of credit and performance bands, and to take such additianal actions as the City Manager, or his designee, shall determine io be necessary and advisable ta cansummate and effectuate the PPA; NOW, THEREFORE, # • • � ! : ! 1� SECTION 1. The recitations and findings contained in the above Preamble are incorparated herewith and are cansidered to be a part of this Ordinance. SECTION 2. The City Council, approves and authorizes the City Manager and City Secretary, or their designees, ta execute and attest respectively, the PPA between Dentan and Samson Solar as set farth in Exhibit "A" attached hereto and made a part hereof. SECTION 3. The City Council, as additional security for Samsan Solar's performance under the PPA, appraves and authorizes the City Manager and the City Secretary, and their respective designees, to apprave and accept irrevocable and non-transferable standby Letter(s) of Credit ("Letter(s)"), in accardance with the PPA, with said Letter(s) being drawn upon a commercial bank within the United States, on behalf of Dentan, as additional credit protectian, under the terms and condiiions of, and being substantially in the form as set farth in, the PPA, with such amendments, changes and additions as the City Manager, or his designee, may approve. �� ""i i(,)mmC��. The City Council, 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 the PPA, after ihe same have been approved by the City Attorney, or his designee, and to take such additional actians as the City Manager, or his designee, shall determine to be necessary and advisable to effecivate the matters set forth above. SECTION 5. The City Manager, the City Attorney, or their designees, be, and each af them individually hereby is, autharized and empowered to perform all such acts and obligations as required with respect to the PPA described herein. �C"�;`f l��w�1 �. Immediately following the executian and delivery of the PPA, the City Secretary is directed to seal and maintain the same in her custody and contral, as documents excepted from public disclosure under the provisions of §552.133 of the Texas Government Cade (the c6Public Power Exception") unless atherwise lawfully ordered to disclose said documents. SECTION 7. This ordinance and a copy of PPA, as redacted of Campetitive Information, shall be open for public inspection and reproduction. The unredacted Contract shall not be produced for public inspectian, but shall be sealed, as provided for in Section 6 abave. SECTION 8. This ordinance shall become effective immediately upan its passage and approval. ��, _ The motion to approve this crrdinance was made by „p _�� „ �. �'�„�'� �!_��'�v,.�. _____, a�.d seconded by � �` �,"� �� °�` �' �,�� "';� �::�� _, the ordinance was passed and approved by the follawing vote [ � - �i ]: � � �� Absent Chris Watts, Mayor: �°°�' Gerard Hudspeth, District 1: _ � _ Keely G. Briggs, District 2: m� Don Duff, District 3: �+ Jahn Ryan, District 4: �' Deb Armintor, At Large Place 5: �"' �IT Paul Meltzer, At Large Place 6: p� PASSED AND APPROVED this the �,.3t day of ��'��'`��r �'�,�'� µ��i�}18. �M �� CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: ��' ��''f� �"`� ��_,�w.��"�."'�� APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY ,µ �� ,�,� �� .�,..._, BY: ,� _ �� _ ........ � ��' � EXH I 6 I T"A" SOLAR RENEWABLE ENERGY PURCHASE AGREEMENT Between CITY OF DENTON, TEXAS and SAMSON SOLAR ENERGY LLC Dated November , 2018 l. 2. 3. 4. 5. 6. 7. 8. 9. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page Definitions; Interpretation ................................................................................................... 1 Term. ................................................................................................................................... 1 Commercial Operation Date; Obligation to Complete . ...................................................... 2 Deliveryof Energy .............................................................................................................. 4 Paymentof Settlement Amount . ......................................................................................... 4 EconomicCurtailment . ....................................................................................................... 4 FacilityAttributes . .............................................................................................................. 4 EnvironmentalAttributes .................................................................................................... 5 Mechanical Availability Guarantee . ................................................................................... 7 SellerCovenants . ................................................................................................................ 8 Calculation of Payments; Procedures for Payments . .......................................................... 9 PerformanceAssurance . ................................................................................................... 11 Representations and Warranties ........................................................................................ 14 Limitation of Liability, Indemnification . .......................................................................... 16 Eventsof Default . ............................................................................................................. 17 Remedies. .......................................................................................................................... 19 Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Notices and Formal Communications ............................................................................... 21 Confidentiality. ................................................................................................................. 21 Records and Audits; Information Rights . ......................................................................... 23 Assignment. ...................................................................................................................... 23 MarketDisruption Event ................................................................................................... 25 Changein Law; No Challenge .......................................................................................... 26 ForceMajeure . .................................................................................................................. 26 InsuranceRequirements .................................................................................................... 27 DisputeResolution ............................................................................................................ 28 IntentionallyOmitted . ....................................................................................................... 28 Miscellaneous. .................................................................................................................. 28 i II:� II: II:::��...II...II: II:::� SOLAR RENEWABLE ENERGY PURCHASE AGREEMENT This Solar Renewable Energy Purchase Agreement (this "A�reement") is entered into this day of November, 2018 (the "Effective Date"), by and between Samson Solar Energy LLC, a Delaware limited liability company ("Seller"), and the CITY OF DENTON, TEXAS, a Texas home-rule municipal corporation that wholly owns and operates an electric utility under the trade name of Denton Municipal Electric, with its principal place of business at 215 E. McKinney Street, Denton, Texas 76201 (`Buver"). Buyer and Seller are collectively defined as the "Parties" and each individually as a "Partv." WHEREAS, Seller desires to develop, design, construct, own and operate a solar renewable energy generation facility with an expected total nameplate capacity of approximately 500 MW AC, located in Lamar County, Texas, as further described in ANNEX II(the "Facilitv"); WHEREAS, Buyer desires to manage the long term costs for the use of energy in its operations, including using this Agreement, a forward contract to mitigate the effect of possible fluctuations in the price of electricity, and foster the development of renewable energy generating resources; and WHEREAS, the Parties desire to enter into this Agreement, pursuant to which, among other things, (i) Seller shall transfer to Buyer and Buyer shall accept from Seller a portion of the Energy generated by the Facility during the relevant period, along with Facility Attributes and Environmental Attributes related thereto, and (ii) Buyer shall pay the Fixed Price for such Energy, all in accordance with and subject to the terms and conditions set forth in this Agreement; NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises, representations, warranties, covenants and other terms and conditions set forth below, the Parties, intending to be legally bound, hereby agree as follows: l. Definitions; Interpretation. Capitalized terms used in this Agreement are defined in, and the rules of interpretation relating to such terms and this Agreement are set forth in, ANNEX I attached hereto. Other terms used but not defined in this Agreement shall have meanings as commonly used in the English language. 2. Term. (a) This Agreement is effective as of the Effective Date and subject to the earlier termination of this Agreement in accordance with its terms, shall continue in full force and effect until the end of HE 2400 PT (Central U.S.) on the last day of the Settlement Term (the "Term"); provided, however, that neither the termination nor expiration of this Agreement shall relieve either Party of (i) any undischarged liability of such Party for the period prior to such termination or expiration (including for unpaid amounts owing under this Agreement for the period prior to such termination or expiration) or (ii) any liability for breach by such Party of this Agreement prior to such termination or expiration or (iii) any obligations or liabilities arising out of any such termination. 3. Commercial Operation Date; Obligation to Complete. (a) Construction. Seller shall design and construct the Facility in accordance with Prudent Electrical Practices. Seller shall design and construct the Facility to meet the characteristics set forth in ANNEX II; provided, however, that Seller may deviate from the characteristics set forth in ANNEX II if such deviation does not result in (i) a change to the Interconnection Point, or (ii) subject to Section 3(e), an Anticipated Nameplate Capacity less than the Buyer's Pro-Rata Capacity. Together with the Notice of Commercial Operation, if Seller has deviated from the characteristics set forth in ANNEX II, Seller shall provide to Buyer an updated Annex II to reflect the as-built Facility. (b) Commercial Operation Date. As of the Effective Date, Seller expects the Facility to achieve Commercial Operation on or before the Guaranteed Commercial Operation Date. Seller shall provide periodic updates to Buyer of progress toward Commercial Operation and shall formally notify Buyer once the Facility achieves Commercial Operation by issuing the Notice of Commercial Operation. If, as of the Commercial Operation Date, the Installed Nameplate Capacity of the Facility is less than the Anticipated Nameplate Capacity, the Seller shall retain the right to increase the Installed Nameplate Capacity of the Facility to an amount equal to the Anticipated Nameplate Capacity. Upon any such increase in the Installed Nameplate Capacity, Seller shall issue a Notice of Supplemental Commercial Operation setting forth the increased Installed Nameplate Capacity of the Facility. � � -2- II:� II: II:::��...II...II: II:::� � 0 �:� I��1� ��u�a�� F"�r�l T��x��a�i�� '� �a��t �x�� a ��wta �°�.:��.��t �u�P� ��1�� u�c� ��a�i�a� I��c��. ��lrj��;�` t� �� eat�t�� t��°�� f t1�i� ��ti��r� �, t�� a;:�y��s��t �:�f �i� �►�� T�� I�� l�� y�,w�°'� sa�� a��r�� c:ll��r� �•�z��'ly, �� ,�I1��•'� ��ll� �r��i ��:ll�u�� li��nllu�t�° �r�� +��al��ia�rn t+� T3��, �a�� m��r f��°� �� c��l�� c,��i��; +�"c�i��n��r��i�l ��r��i��r� +�r� �i� ��f�a�� t1�� irt��x��x�t�e� �'+��i��i�ll ��i��i�i� ]C��ie, �ii� d��+� i�u�y I��w�uu .^�s��u��n� wsl��llll k�� t�}x��°�s ��ll� �� e;�cc��u��v� ��x��, �a�4i ��lleam'� ��1� a�� e;�cc��u�� i��i:l�� e.-��.�li,��ti��n �� ;��r, f�r�� a�� ia�D�an�e ��- cl�� u�� c�ai�v�� -�� ,anfii�i��t�� aaa��t� �"��<�+��t� �a� �aa� ��c�� l�e ��a�� :��a�en��i�l ��t�c��a� i��, �� Ca�ii� t�� F�� T��z��i��it�r��a:� i��t �� l�t�c� F�� T�a�a�i��at�ic�� a��:�t ��ll l�� B��}��°'� ��1� ��. ��:��u�� n��, ��c� ��11�r�'� s�l� �� °ll��s�wr� �v��l�ilit�r ��c� ��a��,��ic�� t�� '��r°, ��• �� "��ll�� fi�.� �ti�lri�� c�r° �a�� c��ll�� i� ��,1��il��„ �� `��e��i��l (��tic��t I�� (.1�� +�X�t�i�� C"�n�zY��cg�� rw,��i�� l��rt� �mc��r° �� i��ir�i��t�� tlri:� ��n��b��t �� r �� ac�c,�aIl�e��z�c:� ��i��n S��i�rrn ?��"�1). "T�i� �`�rt�� :nya�le��e �:��c� a�� t��rt kll�� rt��, ��r��utu+a�� ts ��t��xx�az�� c;��z�� x� tl�� ti�sa� :��&� fc�� ae ��r.a�e�a� a�� ll��F ��a��, t�� z�l� �°��-��i��tuc�� P��u��utr �a��l G�a�� rv ]I�� aa�«�a�at �� a�c� ��ifi�� ia��-�� <:� �a�� -��c�n�<°�l�l� ��a��u�;�c��a�r:�� t��u� C��a�� dla�t T�u��a. ��r��a��c� �� t� ��i�� x4�l�a��c� �ca tt�� tt��-� r��n��. i�� tln�ti u��i��t�� rw�c��i�� s�t��. Tl�� Pa�rt:i�� 1�� .��cl ��c�� n�� 1�lli�� t�� z��s��a��t� ��' �1�� T:)��, ��u1�1� "T`��nir��t�� t �r�c� F�� I:��a�� .�n�.��rJ�i�� i��X�:�� a�: ��n� tlitii�t�llt� t�f ��c�t�t��:'r�,� ti�� ,�c� ��Y��t ��`s��r l��xi��:� i�r �ti�:�� +��nrt: �n��l ��t�s� �t��n�ris� ��t�i�� n� ��c�u��te ��a�ee�y v�r��u�c� �� la��cin�t �� a�z�i�r�a.t. 7`��e ��1�y ��z��,��s, ��:� �'��-��i��t�c�� '��e��t ��1 ��;u�T ]f�� a�u�at �,��e ��t ��aa��t�e� �� l�� .�c� ��xd�� "��n� ��:��u� ��n��,�� fil��t F��.�u�°��r� �a�;�a��l�� :u�t,��a��. �,�.� ��a�.a�,�l��u��t,�a� �lc�c��. �'��° ��:�� v��i�� c��`cfl��t. ��c��tl��z� P�r°�° �l��ul:l 1��:�� 1i��fi;� a�� l��a�w� �� t��•��icar�� n��t i�` ��r�y� ��ac;t�c� ��u�.��l�n��1r��1 �Ic��l�,� �n�� t �n��1n�� 5��1��int�1 C,�r��rx�i�l �j��i��ic��r �a� :�n��° ��,it"d� +��t�. ��) �.c.`��lit�r�rl�l I"��z��l�� "��ik�. ��t�ii}ns��n�c�inr� ,�,i�y�t�ii�� 2�a t�Le +cc�r�tin-�n�^ c�a��i�a�� e��i��,„ �1�� ll�n- �-e�ez-�� tl�� i��t t+�, �t i�� a�i��z�, tt��n��,�� t�� i�ast�l�� r��1�u�� "��;i�� t�a�e ��cil:i�� 4� �� aa��nt �a��ten� t��nx t�a� �4��i�°i��t�c� ��ua��ll�� "��a<�c;it� ��tla� �:F��a�au�l��l ��u��,��. �� :uac�� v��, �� 3u�}��- ��,k��r��c�� <�za�� g�� tl�� Qa� l�r�uy�;�� 1�,��c� ��a� �•i�l�t� �� t��•�;�i`� iz� ��° �� t�� , ��.e��1 A�ti��i��a��s �u�ucfl �';��°iiit}�� h`��r.�t��s r�l�t��l t� �r�a�� c�� °��i��°, ��) ��w�ll� ��n�c��i +�,��{��tyw ��n°�.11ll ��at �e ��a��ic��nn�� r�alr�� c�l��ti�� u�y��•"� ��•��a—�� `g�ct��n� +�� n�y ��a��t� ��r�i�l� ��nN�n�n��• ��Yc� �i�Il� ��li�� r��:�,, ��. it� ��tn�a�x, �� ie �t��r��y, �nl�Pin��ze�nt�ll ,At�r�ff��t�� ni�l l��uli�y Att��"r�a�te� ��i�f��i ��i�rz �au��l. �x��l��l �"��:i��° t�a � ��iiz�d ��a��t�. � II:� II: II:::��...II...II: II:::� 4. Delivery of Energy. (a) Deliverv of Ener�v. For each Monthly Settlement Period, Seller shall meet its Energy delivery obligation pursuant to this Agreement by delivering the Interval Quantity to the Settlement Point. Title to Energy, and risk of loss with respect thereto, shall pass from Seller to Buyer at the Settlement Point. For the purposes of calculating settlement amounts, the Parties shall use metered data at the Interconnection Point. Seller shall provide information to Buyer including access to data, including but not limited to production data and telemetry from the Facility to be provided to Buyer both at times, and in a format, acceptable to Buyer. (b) Characteristics. Energy to be furnished hereunder shall be in the form of three-phase, sixty (60) Hertz alternating current and at a normal voltage determined by mutual agreement of the Seller and the Connecting Utility. � � � � -4- II:� II: II:::��...II...II: II:::� � 8. Environmental Attributes. (a) Transfer of Environmental Attributes. Throughout the Settlement Term, Seller shall, subj ect to the satisfaction of Buyer's payment obligations hereunder, transfer to Buyer, and Buyer shall accept from Seller, all of Seller's right and title to, and interest in, the Buyer's Environmental Attributes. For the avoidance of doubt, if the Facility is curtailed for any reason whatsoever, Seller shall not be obligated to transfer any Environmental Attributes to Buyer associated with any Energy that was curtailed, regardless of whether Buyer has paid a Curtailment Make-Whole Payment during the period of curtailment. Seller's obligation to transfer Environmental Attributes hereunder shall be deemed satisfied at such time as Seller electronically initiates the transfer of such Environmental Attributes to Buyer's account, whether or not Buyer electronically (or otherwise) accepts such transfer. (b) Clean Title. At the time of transfer of any Buyer's Environmental Attributes as provided herein, (i) Seller shall have good and marketable title to such Environmental Attributes; (ii) such Environmental Attributes shall not have been sold by Seller to any other Person or used by Seller to meet compliance requirements of any other regulatory or voluntary renewable Energy program or standard, including any greenhouse gas reduction requirements; and (iii) Seller shall be transferring to Buyer all right, title to and interest in such Environmental Attributes, free and clear of any liens or other encumbrances created by, through or under Seller. (c) Re�istration of Environmental Attributes. Seller shall, upon sufficient prior written request of Buyer specifically identifying the desired Environmental Attributes (and any -5- II:� II: II:::��...II...II: II:::� Environmental Attribute program(s) and/or monitoring, tracking, certification and/or trading system(s) desired therefor) and requesting actions to be taken by Seller shall, at its own cost and expense register such Environmental Attributes for Buyer; pay all fees required by, and comply with, all reporting and other requirements of ERCOT and TRECP relating to the Facility or Renewable Energy Credits. Seller shall ensure that the Facility, and any other sources from which Seller may deliver Renewable Energy Credits to Buyer, will participate in and comply with, during the Term, all aspects of TRECP. Seller, at its sole expense, shall effectuate the transfer of Certificates to Buyer in accordance with ERCOT requirements, TRECP reporting protocols and TRECP operating procedures; (d) Acceptance of Environmental Attributes. Buyer shall be responsible for all arrangements and other actions necessary to establish and maintain any Buyer accounts necessary to receive Environmental Attributes from Seller. Notwithstanding anything to the contrary contained herein, in the event Buyer fails to establish and maintain any Buyer accounts or take any other action necessary to receive Environmental Attributes from Seller, Seller shall not be liable for any failure to transfer Environmental Attributes to Buyer hereunder. Title and risk of loss to Environmental Attributes shall transfer from Seller to Buyer (i) at such time as Seller electronically initiates the transfer of such Environmental Attributes to Buyer's account, whether or not Buyer electronically (or otherwise) accepts such transfer, or (ii) upon such other time and place as may be agreed by the Parties. (e) Failure to Transfer Environmental Attributes. If, with respect to any Monthly Settlement Period, Seller is required to transfer Environmental Attributes to Buyer according to this Section 8, but Seller fails to transfer to Buyer all or part of such Environmental Attributes by the Environmental Attribute Transfer Deadline, then, by the fifth (Sth) Business Day following the Environmental Attribute Transfer Deadline, Seller shall, for each such Environmental Attribute, either (i) transfer to Buyer Comparable Environmental Attributes, or (ii) pay to Buyer an amount equal to the Average Environmental Attribute Value for such Environmental Attributes (the "Environmental Attribute Damages"). (f) Environmental Attribute Dama�es are Sole and Exclusive Remedy. The transfer of Comparable Environmental Attributes or payment of Environmental Attribute Damages shall be Buyer's sole and exclusive remedy, and Seller's sole and exclusive liability, for Seller's failure to comply with this Section 8. The Parties acknowledge and agree that the terms, conditions, and amounts determined according to Section 8(e) for the payment of Environmental Attribute Damages are a good faith estimate and are reasonable considering the Damages that Buyer would be expected to sustain related to the matters described in the immediately preceding sentence. The Parties have agreed upon and established the amounts of the Environmental Attribute Damages because of the difficulty of ascertaining the exact amount of such Damages in such event and because otherwise obtaining an adequate remedy would be difficult or inconvenient. The Environmental Attribute Damages are not penalties and shall be paid regardless of the amount of Damages that Buyer actually sustains. (g) Fees and Char�es. Seller shall be responsible for all fees and charges assessed against Seller (which excludes the fees and charges associated with registering and maintaining Buyer's account and other costs assessed against Buyer pursuant to Section 8(c)) associated with so qualifying such Environmental Attributes and obtaining and transferring such � Environmental Attributes to Buyer via any monitoring, tracking, certification and/or trading system(s). Seller will also be responsible for registering the Facility with Green-E for eligibility purposes, and will assume any costs associated with such registration. 9. Mechanical Availability Guarantee. � � � � � -7- II:� II: II:::��...II...II: II:::� � - 10. Seller Covenants. (a) Facilitv Ownership. Seller shall at all times own or control all Blocks, own, control, or lease all other personal property related to the Facility and own, lease or otherwise hold all real property rights associated with the Facility (provided that this Section 10(a) shall only apply to such personal property and real property rights as are reasonably needed to operate the Facility in accordance with Prudent Electrical Practices and shall not apply to any personal property and real property owned by the Connecting Utility). (b) Operation and Maintenance. Seller shall operate and maintain the Facility at all times in accordance with Prudent Electrical Practices. In addition, during the months of June through September inclusive, Seller shall not schedule any maintenance that reduces the Energy generation capability of the Facility, unless (i) such outage is required to avoid damage to the Facility, (ii) such maintenance is necessary to maintain equipment warranties and cannot be scheduled outside the months of June through September, (iii) such outage is required in accordance with Prudent Electrical Practices, or (iv) the Parties agree otherwise in writing. Personnel capable of starting, running and stopping the Facility shall be continuously available, either at the Facility or capable of remotely starting, operating and stopping the Facility within twenty (20) minutes. (c) Facilitv Control. For avoidance of doubt, Seller shall control the operation of the Facility, including any voluntary curtailment, dispatch and generation bidding into Independent System Operator. (d) Meters. Seller shall cause to be provided, at no cost to Buyer, any and all meters required by the Independent System Operator to measure the Energy generated by the Facility delivered at the Interconnection Point. The Energy generated by the Facility delivered at the Interconnection Point shall be measured, and any adjustments to prior meter readings, if applicable, made and settled, in accordance the methodologies required by the Independent System Operator for settlement purposes. Seller will provide Buyer dial in or TCP/IP access to all meters at the Facility in order for Buyer to read the meters from a remote location. (e) Qualified Schedulin� Entitv (QSE�. Seller (or any entity that is qualified to perform such services and is selected by Seller to perform such services on behalf of Seller) will act as the Resource QSE for the proj ect. (f) Schedulin�. Seller or its designated QSE shall perform such services in accordance with Annex XI of this Agreement. (g) SCADA and Communications. Seller shall provide to Buyer on a real time basis Gross MW, Net MW, MVAR, auxiliary load and breaker status via an RTU. All equipment providing data to the RTU must have a continuous power source. In the event of communications loss, Seller is solely responsible for re-establishing and ensuring all communication paths to all devices have been restored. : 11. Calculation of Payments; Procedures for Payments. (a) Calculation of Pavments. With respect to each Monthly Settlement Period, Seller shall calculate: (i) the "Fixed Price Pavment" for the Monthly Settlement Period, which shall be equal to the sum over all Calculation Intervals in such Monthly Settlement Period of the product of (X) the Fixed Price for each such Calculation Interval, and (Y) the Interval Quantity for each such Calculation Interval; (ii) the "Settlement Amount" for the Monthly Settlement Period, which shall be equal to the difference resulting from the subtraction of (X) the credit for Facility Attribute Revenues pursuant to Section 7(b), if any, from (Y) the sum of (i) the Fixed Price Payment, and (ii) any Curtailment Make-Whole Payments, if any. � � (ii) Pavment. Payments due by either Party shall be made by electronic funds transfer, or by wire transfer, to the account of the receiving Party as provided in ANNEX VII or as otherwise specified by the receiving Party according to Section 18, on or before the Due Date, without deduction or set-off (except as permitted in Section 11(c)). If Seller and Buyer each owe an amount to the other on the same invoice for obligations incurred under this Agreement, the undisputed portion of such amounts shall be aggregated, and the Parties shall satisfy the applicable portion of their payment obligations through netting. For the avoidance of doubt, such aggregation of amounts associated with obligations owed by the Parties under this Agreement shall not be deemed to constitute a set-off pursuant to Section 11(c). (c) Adjustments to Invoices. In the event that either Party to this Agreement discovers an error in billings or payments under this Agreement due to metering, billing or other errors, or a prior invoice was prepared on an estimated basis pursuant to Section ll(b), each Party shall, subject to Section ll(e), be entitled to an adjustment of the amount payable hereunder to -9- II:� II: II:::��...II...II: II:::� reflect such revised price, error discovery, or the availability of actual (as opposed to estimated) invoicing information. A Party that seeks an adjustment to invoices as described in this Section ll(c) must provide the other Party with notice and a description of the desired adjustment within two (2) years of the date the invoice that is to be adjusted was received by Buyer. Such notice shall include a calculation of the payment necessary to correct the prior invoice. Any invoice that has not been challenged pursuant to this Section ll(c) within two (2) years of the date it was received by Buyer shall be deemed final and not subject to adjustment under this Section ll(c). Any amounts determined to be due and payable by a Party as a result of an adjustment under this Section ll(c) shall be included in the next invoice issued in accordance with Section ll(c); provided, however, that any amounts determined to be due and payable by a Party as a result of an adjustment under this Section ll(c) after the expiration or termination of this Agreement shall be due and payable within thirty (30) days after the Parties agree to the amount of such adjustment (it being acknowledged and agreed that, for purposes of determining interest under Section ll(d), the Due Date related to such adjustment shall be the Due Date related to the invoice on which such adjustment is included or thirty (30) days after the Parties agree to the amount of such adjustment, as applicable). � (e) Dis�uted Amounts. Either Party may, in good faith, dispute the correctness of any invoice rendered under this Agreement (including any adjustment to an invoice under Section ll(d)). In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of such invoice shall be required to be made when due, with notice of the obj ection given to the other Party in writing and stating the basis for the dispute, including all supporting calculations. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment plus interest thereon accrued at the Interest Rate from and including the Due Date to, but excluding, the paid date, shall be included in the next invoice issued in accordance with Section ll(b). (f) TaYes. Unless otherwise agreed to in writing by the Parties or specifically expressed in this Agreement, neither Party is liable for any of the taxes of the other Party that the other Party is legally obligated to pay and that are incurred or arise in connection with or are related to income generated by the transactions contemplated under this Agreement or arise from ownership of property subject to the transactions contemplated by this Agreement, and all such taxes (including net income taxes, franchise taxes, and property taxes) shall be the financial responsibility of the Party who is obligated by operation of law to pay such tax. In the instance that sales, gross receipts, transfer, use, or similar taxes are incurred or arise in connection with or are related to a transaction between the Parties contemplated by this Agreement, if applicable, the Buyer shall be responsible for the same; provided that the Buyer may provide to the Seller a valid exemption certificate executed by the Buyer, in which case the Seller shall not collect the taxes covered by such certificate. Each Party agrees to indemnify, defend, and hold harmless the other Party and its Affiliates and their respective owners and the respective directors, officers, members, -10- II:� II: II:::��...II...II: II:::� managers, employees, and representatives of any of the foregoing from and against any taxes for which the indemnifying Party is responsible under this Section ll(�. 12. Performance Assurance. � � � � � -11- II:� II: II:::��...II...II: II:::� � (iii) Demonstration of Buver's Grade Ratin�. Upon Seller's request, Buyer shall from time to time deliver to Seller such information as Seller may reasonably request in order to confirm Buyer's Credit Rating. (c) Postin�, Maintenance and Drawin� of Performance Assurance. (i) Securitv Interest. To secure its obligations under this Agreement, Performance Assurance Provider hereby grants to Performance Assurance Beneficiary, as the secured party, a first priority, present and continuing security interest in, and lien on (and right of setoff against), and assignment of, the Performance Assurance posted in the form of cash and all cash obtained by Performance Assurance Beneficiary resulting from a draw on such Performance Assurance, and any and all proceeds resulting therefrom or the liquidation thereof, whether now or hereafter held by, on behalf of, or for the benefit of the Performance Assurance Beneficiary, and Performance Assurance Provider agrees to take such action as Performance Assurance Beneficiary reasonably requires in order to perfect and protect the Performance Assurance Beneficiary'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; provided, however, that the Performance Assurance Beneficiary may exercise its rights as a secured party (including the right of setoff granted pursuant to this sentence) against such cash collateral only upon the terms and conditions of Section 12(c)(ii). Such cash collateral shall constitute Cash Collateral for all purposes of this Agreement (including for the return of such cash collateral to Performance Assurance Provider according to Sections 12(c)(v) and 12(c)(vi)). (ii) Draw in an Event of Default. If an Event of Default has occurred and is continuing, Performance Assurance Beneficiary shall be entitled to draw upon the Performance Assurance for any Damages that have not been paid when due and that arise from (i) such Event of Default and/or (ii) any prior Event of Default to the extent that -12- II:� II: II:::��...II...II: II:::� Damages arising therefrom have not yet been paid in full to the Performance Assurance Beneficiary. (iii) Draw of an Ex�irin� Letter of Credit. In the case of Performance Assurance in the form of a Letter of Credit, Performance Assurance Beneficiary may draw the full amount of such Letter of Credit within thirty (30) days before the expiration of such Letter of Credit if, as of the date of such drawing, Performance Assurance Beneficiary does not receive replacement Performance Assurance meeting the requirements of this Agreement. The proceeds of any such draw shall be held as Cash Collateral unless replaced pursuant to Section 12(c)(iv) and may be drawn upon only as provided in Section 12(c)(ii). (iv) Replacement. If, at any time during which Performance Assurance is required to be maintained hereunder, a Credit Event occurs with respect to such Performance Assurance, then the Performance Assurance Provider shall, within ten (10) Business Days after such Credit Event, replace the affected Performance Assurance with Performance Assurance that complies with the terms of this Agreement, including having an undrawn capacity in the amount required by the definition of such Performance Assurance at such time. In addition to the replacement of the Performance Assurance that may be required pursuant to the preceding sentence, the Performance Assurance Provider shall, at any time and from time to time, have the right to replace the Performance Assurance in effect at such time with other Performance Assurance, so long as Performance Assurance Provider maintains the Performance Assurance with undrawn capacity in the amount required by the definition thereof at such time. For the avoidance of doubt, Performance Assurance Provider shall not be required to replenish the drawn amount of its Performance Assurance. (v) Release Upon Replacement. If any Performance Assurance is replaced in accordance with Section 12(c)(iv), then, if the Performance Assurance being replaced is (i) a Guaranty, the applicable Performance Assurance Guarantor shall be deemed released from all obligations under such replaced Performance Assurance, and Performance Assurance Beneficiary shall execute any documents reasonably requested by Performance Assurance Provider or any such Person to confirm such release, (ii) Cash Collateral, the Performance Assurance Beneficiary shall cause the depository bank to immediately return such Cash Collateral (including any interest earned thereon) to Performance Assurance Provider, (iii) a Letter of Credit, the Performance Assurance Beneficiary shall promptly return such Letter of Credit to the bank that issued such Letter of Credit and shall execute any documents reasonably requested by Performance Assurance Provider or issuing bank in order to release the Letter of Credit, or (iv) another form of security (including a Performance Bond), the Performance Assurance Beneficiary shall promptly return such form of security to the Performance Assurance Provider or issuing Person and shall execute any documents reasonably requested by Performance Assurance Provider or issuing Person in order to release such other form of security. (vi) Release Upon Termination. If, upon the Performance Assurance Release Date (subject to Section 12(c)(vii)), any part of the Performance Assurance being released is (i) a Guaranty, the applicable Performance Assurance Guarantor shall be deemed released from all obligations under the Performance Assurance, and Performance -13- II:� II: II:::��...II...II: II:::� Assurance Beneficiary shall execute any documents reasonably requested by Performance Assurance Provider or any such Person to confirm such release, (ii) Cash Collateral, the Performance Assurance Beneficiary shall cause the depository bank to immediately return such Cash Collateral (together with any interest earned thereon) to Performance Assurance Provider, (iii) a Letter of Credit, the Performance Assurance Beneficiary shall return such Letter of Credit to the bank that issued such Letter of Credit and shall execute any documents reasonably requested by Performance Assurance Provider or issuing bank in order to release the Letter of Credit, or (iv) another form of security (including a Performance Bond), the Performance Assurance Beneficiary shall promptly return such form of security to the Performance Assurance Provider or issuing Person and shall execute any documents reasonably requested by Performance Assurance Provider or issuing Person in order to release such other form of security. (vii) Outstandin� Claims. Notwithstanding anything to the contrary contained in this Agreement, if upon the Performance Assurance Release Date, there are outstanding any claims that were validly made prior to such date against the Performance Assurance that would otherwise be released, then, on the Performance Assurance Release Date, (A) the amount of the applicable Performance Assurance shall be deemed reduced to the amount of such outstanding claims, (B) the Performance Assurance Release Date shall be extended until the final resolution and (if applicable) full payment of such outstanding claims and (C) at the election of Performance Assurance Provider, the scope of such security may be reduced to secure only such outstanding claims. In the event of a reduction in the amount and/or scope of any Performance Assurance in accordance with clause (A) or clause (C) of the immediately preceding sentence, Performance Assurance Beneficiary shall promptly execute any documents and take any other actions reasonably requested by the Performance Assurance Provider or any applicable Performance Assurance Guarantor to effect and/or confirm such reduction in amount and/or scope, including by executing and delivering an amendment to such Performance Assurance, by exchanging such Performance Assurance or by other reasonable means. 13. Representations and Warranties. Each Party hereby represents and warrants to the other Party as of the Effective Date: (a) Good Standin�. It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or incorporation and is in good standing and qualified to do business in each jurisdiction where the failure to so qualify could reasonably be expected to have a material adverse effect on such Party's ability to perform its obligations under this Agreement or on the business, operations or financial condition of such Party. (b) Authoritv. It has all necessary company power and authority and, if applicable, third party and regulatory consents, to execute, deliver and perform its obligations hereunder, except, in the case of Seller, for any regulatory consents that are not yet required. (c) No Conflict. Its execution, delivery and performance of this Agreement (i) has been duly authorized by all necessary corporate action, (ii) does not violate any of the terms or conditions of (A) its governing documents, (B) any contract to which it is a Party (or result in -14- II:� II: II:::��...II...II: II:::� acceleration of any amounts owed or otherwise adversely affect its rights or obligations under such a contract) or (C) any Applicable Law currently in effect having applicability to such Party or its assets (subject to, in the case of Seller as the representing Party, obtaining any permits or other authorizations for the Facility or its operation that are not yet required), to the extent such violation or creation or imposition would reasonably be expected to have a material adverse effect on its ability to perform its obligations under this Agreement or on its business, operations or financial condition, and (iii) with respect to Seller does not result in, or require, the creation or imposition of any mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance of any nature (other than to a Financing Party or as may otherwise be contemplated by this Agreement) upon or with respect to any of the properties of Seller now owned or hereafter acquired. (d) Bindin� A�reement. This Agreement has been validly executed and delivered on behalf of such Party and, assuming the due authorization, execution and delivery of the other Party, constitutes the legal, valid and binding obligation of such Party enforceable against such Party according to its terms, except as the enforceability of this Agreement may be limited by (i) bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and (ii) general principles of equity whether considered in a proceeding in equity or at law. (e) Authorizations. All Authorizations and other third party consents that are required to have been obtained by it with respect to its execution, delivery or performance of this Agreement have been obtained and are in full force and effect and all conditions of any such consents have been complied with, except, in the case of Seller as the representing Party, any Authorizations that are not yet required. (f) Abilitv to Perform. There is no pending or (to its knowledge) threatened litigation, arbitration or administrative proceeding that would reasonably be expected to have a material adverse effect on such Party's ability to perform its obligations under this Agreement or on the business, operations or financial condition of such Party. (g) Knowled�eable Participant. It is sophisticated and experienced in matters relating to the subject of this Agreement, is acting for its own account, has made its own independent decision to enter into this Agreement based on its own judgment that this Agreement is appropriate and proper for it, and it is not and will not be relying on any information or analyses provided by the other Party in so doing and is capable of assessing the merits of and understanding, and has assessed and understands and accepts, the terms, conditions and risks of entering into this Agreement. (h) Eli�ible Partici�ant. It is an "eligible contract participant" within the meaning of Section la(18)(A)(v) of the Commodity Exchange Act or an "eligible commercial entity" within the meaning of Section 1(a)(17) of the Commodity Exchange Act and is neither a "swap dealer" within the meaning of Section 1(a)(49) and 17 CF.R. Section 1.3(ggg) nor a"major swap participant" within the meaning of Section 1(a)(33) and 17 C.F.R. Section 1.3(hhh). -15- 14. Limitation of Liability; Indemnification. (a) PARTIAL WANER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS RELATED PERSONS BE LIABLE TO THE OTHER PARTY OR ANY OF ITS RELATED PERSONS FOR SPECIAL, PUNITNE, INCIDENTAL, INDIIZECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT BE CONSTRUED TO LIMIT A PARTY' S RIGHT TO RECENE LIQUIDATED DAMAGES (INCLUDING DELAY DAMAGES, THE EARLY TERMINATION PAYMENT, THE BUY DOWN AMOUNT AND ANY ENVIIZONMENTAL ATTRIBUTE DAMAGES OR AVAILABILITY DAMAGES) , ANY OTHER DAMAGES SPECIFICALLY SET FORTH HEREIN, AND REPLACEMENT CONTRACT LOSSES AS PROVIDED IN THIS AGREEMENT OR, SUBJECT TO THE OTHER LIABILITY LIMITATIONS, TO RECEIVE "COVER" DAMAGES. THE PARTIES INTEND THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE LIABILITY LIMITATIONS SHALL APPLY EVEN IN THE EVENT OF THE FAULT, NEGLIGENCE (INCLUDING GROSS NEGLIGENCE) (IN WHOLE OR IN PART), STRICT LIABILITY, OR BREACH OF CONTRACT OF THE BENEFICIARY THEREOF AND WHETHER ASSERTED IN CONTRACT, IN WARRANTY, IN TORT, BY STATUTE OR OTHERWISE. FOR THE AVOIDANCE OF DOUBT, IN THE CASE OF SELLER, ANY LOST, FOREGONE OR RECAPTURED INVESTMENT TAX CREDITS SHALL BE CONSIDERED DIIZECT, AND NOT INDIIZECT OR CONSEQUENTIAL DAMAGES. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR' S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WANED. (b) NON-RECOURSE. EXCEPT AS PROVIDED IN A GUARANTY ISSUED BY A RELATED PARTY, NO RELATED PERSON OF EITHER PARTY SHALL HAVE ANY LIABILITY OR RESPONSIBII,ITY FOR, RELATING TO OR IN CONNECTION WITH ITS RELATED PARTY'S FAILURE TO PERFORM OR FAULTY PERFORMANCE OF ANY TERM, COVENANT, CONDITION OR PROVISION OF THIS AGREEMENT OR ANY OTHER FAILURE, BREACH (INCLUDING BREACH OF ANY DUTY OR STANDARD OF CONDUCT) OR OTHER ACT OR OMISSION OF ITS RELATED PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND NO RELATED PERSON OF EITHER PARTY SHALL BE PERSONALLY LIABLE OR BE NAMED AS PARTIES IN ANY ACTION OR CLAIM BETWEEN THE PARTIES. IN PURSUING ANY REMEDY FOR ANY SUCH FAII,URE TO PERFORM, FAULTY PERFORMANCE OR OTHER FAILURE, BREACH OR OTHER ACT OR OMISSION A PARTY, NEITHER THE OTHER PARTY NOR ANY OF ITS RELATED PERSONS SHALL HAVE ANY RECOURSE AGAINST ANY PERSON OTHER THAN FAILING PARTY, NOR AGAINST ANY ASSETS OTHER THAN THE ASSETS OF THE FAILING PARTY, EXCEPT AS OTHERWISE PROVIDED IN A GUARANTY ISSUED BY A RELATED PARTY. -16- II:� II: II:::��...II...II: II:::� (c) NO WARRANTY. THE PARTIES ACKNOWLEDGE AND AGREE THEY HAVE ENTERED INTO THIS AGREEMENT TO ENGAGE IN AN ENERGY TRANSACTION BASED UPON THE FIXED PRICE OF ENERGY AND THE TRANSFER OF ENVIIZONMENTAL ATTRIBUTES AND FACILITY ATTRIBUTES AND (TO THE EXTENT APPLICABLE) THE RIGHT TO RECENE FACII,ITY ATTRIBUTE REVENUES, BASED SOLELY UPON THE EXPRESS REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT, AND NO IMPLIED WARRANTIES FROM ANY PERSON SHALL BE DEEMED TO APPLY TO THE SAME. THE PARTIES DISCLAIM ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE INTERVAL QUANTITY, ENVIIZONMENTAL ATTRIBUTES, FACII,ITY ATTRIBUTES AND FACILITY ATTRIBUTE REVENUES NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, INCLUDING ANY REPRESENTATION OR WARRANTY WITH RESPECT TO MERCHANTABII,ITY OR FITNESS FOR ANY PARTICULAR PURPOSE. (d) INDEMNIFICATION. TO THE EXTENT PERMITTED BY LAW, EACH PARTY (THE "1NDEMNIFYING PARTY") SHALL INDEMNIFY, DEFEND AND HOLD THE OTHER PARTY, ITS AFFILIATES, AND THEIIZ RESPECTNE REPRESENTATNES, MEMBERS, OFFICERS, DIIZECTORS, MANAGERS, AGENTS, SUCCESSORS AND ASSIGNS (TOGETHER, THE "INDEMNIFIED PARTY") HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES FOR (I) PERSONAL INNRY, DEATH OR PROPERTY DAMAGE TO THE INDEMNIFIED PARTY' S PROPERTY OR FACILITIES, (I� PERSONAL INNRY, DEATH OR PROPERTY DAMAGE TO THIRD PARTIES, OR (III) OTHER THIIZD PARTY CLAIMS (WHETHER ARISING UNDER CONTRACT, TORT OR OTHER THEORY OF LIABII,ITY), IN EACH CASE THAT ARISE OUT OF OR ARE CONNECTED WITH THE 1NDEMNIFYING PARTY' S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE INDEMNIFYING PARTY SHALL HAVE NO OBLIGATION TO INDEMNIFY THE INDEMNIFIED PARTY TO THE EXTENT SUCH INNRY, DEATH OR DAMAGE OR OTHER THIIZD PARTY CLAIMS ARE ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR WII,LFUL MISCONDUCT BY THE INDEMNIFIED PARTY OR ANY OF ITS AFFILIATES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, A PARTY SHALL NOT BE OBLIGATED TO FUND ANY POTENTIAL INDEMNITY OBLIGATION BY PRIOR APPROPRIATION OR ESTABLISHMENT OF A S1NKING FUND. (e) SURVNAL. This Section 14 shall survive the expiration or termination of this Agreement. 15. Events of Default. If any of the following events occur then an "Event of Default" shall exist as to such Party (the "Defaultin _� PartX") and the other Party (the "Non-Defaultin _� PartX") shall be entitled to exercise the remedies set forth in Section 16: (a) Failure to Pav. A Party fails to make, when due, any payment required pursuant to this Agreement (other than amounts disputed in good faith), and such failure is not remedied within ten (10) Business Days after written notice of such failure from the other Party; -17- II:� II: II:::��...II...II: II:::� (b) Material Breach. A Party is in material breach of its obligations under this Agreement (other than an obligation to make payment, an obligation that is otherwise specifically set forth in this Section 15 as a separate Event of Default or an obligation in respect of which this Agreement provides a remedy that is stated to be an exclusive remedy), and such breach is not remedied within thirty (30) days after written notice of such breach from the other Party (provided, however, that, (i) to the extent such breach is not reasonably capable of being remedied within the thirty (30)-day remedy period specified above, but is reasonably capable of being remedied, and (ii) such Party has commenced and is continuing reasonable efforts to remedy such breach, such Party shall have ninety (90) days after written notice of such breach from the other Party to remedy such breach); (i) Misre�resentation. A Party's representation or warranty made in this Agreement proves to have been false in any material respect when made unless the inaccuracy is capable of being remedied and the underlying facts are corrected or cured so as to make such representation and warranty correct within thirty (30) days after written notice of such misleading or false representation or warranty from the other Party (�provided, however, that, to the extent such inaccuracy is not reasonably capable of being remedied within the thirty (30)-day remedy period specified above, but is reasonably capable of being remedied, such Party shall have such additional time as is reasonably necessary to remedy such inaccuracy not to exceed sixty (60) days, so long as such Party promptly commences and diligently pursues such remedy), and in either such case the other Party's Damages can be ascertained, and the payment of such Damages (subject to any applicable Liability Limitations) is made within ten (10) Business Days after the amount of such Damages is agreed upon by the Parties or is determined by a final and non- appealable judgment or order, or (ii) such inaccuracy is not capable of a remedy, but does not cause any Damages to the other Party; (c) The occurrence of any material misrepresentation or omission in any metering or any report or notice of the availability and capability of the Facility or the capacity or energy quantities produced or capable of being produced by the Facility required to be made or delivered by Seller to Buyer hereunder, which misrepresentation or omission is caused by Seller's willful misconduct, gross negligence or bad faith, which has a material adverse effect on Buyer, and is not cured (which occurrence shall be deemed fully cured by the reimbursement by Seller to Buyer of any direct costs or expenses incurred by Buyer as a result of such misrepresentation or omission) within thirty (30) days after notice thereof is received from Buyer; (d) Failure to Maintain Performance Assurance. A Performance Assurance Provider fails to deliver or maintain Performance Assurance when and as required pursuant to Section 12(a) or Section 12(b), as applicable, and such breach is not cured within five (5) Business Days after written notice of such breach from the Performance Assurance Beneficiary; (e) Unauthorized Assi�nment. A Party assigns or transfers this Agreement or any portion thereof in violation of Section 21; or (f) Bankruptcy. A Party (i) admits in writing its inability or unwillingness to pay, its debts as they become due, (ii) files a petition or otherwise commences, or authorizes the commencement of, a proceeding or case as debtor under any bankruptcy, insolvency, receivership -18- II:� II: II:::��...II...II: II:::� or similar law for the protection of creditors, (iii) has such a petition filed or proceeding commenced against it as debtor, which remains un-dismissed for ninety (90) days, (iv) files an answer or pleading admitting or failing to contest the material allegations of any such petition, (v) takes any action for its winding up, liquidation or dissolution, (vi) is otherwise adjudged bankrupt or insolvent under any bankruptcy, insolvency, receivership or similar law for the protection of creditors, or (vii) consents to any of the actions described in the preceding clauses (i) through (vi); (g) Mer�er Event. "Merger Event" means, with respect to a Party or its Guarantor, that such Party or its Guarantor consolidates or amalgamates with, or merges into or with, or transfers substantially all of its assets to, or reorganizes, reincorporates or reconstitutes into or as another entity; and at the time of such consolidation, amalgamation, merger or transfer, reorganization, reincorporation or reconstituhon: (i) the resulting entity fails to assume all of the obligations of such Party hereunder or of such Party's Guarantor under its Guaranty; or (ii) the benefits of any Performance Assurance provided pursuant to this Agreement fail to extend to the performance by such resulting, surviving or transferee entity of its obligations hereunder; and (iii) the resulting entity's creditworthiness is materially weaker than that of such Party or its Guarantor immediately prior to such action; or (h) Seller Onlv Events of Default. With respect to Seller only_ (i) Unauthorized Sale. The sale by Seller to a third party, or diversion by Seller for any use, of any of Buyer's Environmental Attributes or Buyer's Facility Attributes. (ii) Failure to Maintain Agreements. Seller's failure to maintain in effect any agreements required to deliver the Buyer's Facility Attributes to the Interconnection Point; provided that if any such agreement is the subject of a good faith dispute between Seller and the counterparty, no Event of Default shall exist in respect of such agreement so long as Seller continues to diligently pursue resolution of such dispute. 16. Remedies. (a) Termination. If an Event of Default occurs and is continuing, the Non- Defaulting Party shall have the right to exercise one or more of the following remedies: (i) to terminate this Agreement by providing notice to the Defaulting Party designating an early termination date that shall be no earlier than the date such notice is effective and not later than twenty (20) days after the date such notice is effective and (ii) to exercise such remedies as otherwise provided in this Agreement or (subject to the Liability Limitations) available at law or in equity, including, in the case of termination of this Agreement as a result of an Event of Default, recovery of Damages suffered by the Non-Defaulting Party as a result of the termination, including the Replacement Contract Losses (if any), as reasonably calculated by the Non-Defaulting Party, and any and all other amounts previously accrued under this Agreement and owed to the Non- Defaulting Party. Further, whether or not this Agreement is terminated, either Party may assert any -19- II:� II: II:::��...II...II: II:::� claims available to it under this Agreement or (subject to the Liability Limitations) in a dispute resolution proceeding in accordance with Section 26 so as to recover Damages against the other Party resulting from any breach of or default under this Agreement by such other Party. Each Party shall use commercially reasonable efforts to mitigate its Damages resulting from the other Party's breach of or default under this Agreement, including upon any termination hereof as a result of an Event of Default of the other Party. (b) Sus�ension. In addition to (and without limiting) the remedies for Event of Default set forth in Section 16(a) or (subject to the Liability Limitations) otherwise available at law or in equity, during the existence of an Event of Default, the Non-Defaulting Party may, by notice to the Defaulting Party (the date of such notice, the "Suspension Date"), suspend (in whole or in part) its performance under this Agreement, without relieving the Defaulting Party of its obligations to pay (subject to the Liability Limitations) Damages arising out of such Event of Default (including any Damages arising out of any resale during the suspension or otherwise out of a suspension pursuant to this Section 16(b), which shall be payable in respect of the entire suspension period notwithstanding that the Defaulting Party may cure any Event of Default giving rise to such suspension before the end of the suspension period as provided in the last sentence of this Section 16(b)). After the Defaulting Party's cure of such Event of Default, and provided there is no other Event of Default by such Defaulting Party then occurring, the Non-Defaulting Party will resume performance of its obligations under this Agreement; provided that, the Non- Defaulting Party will not be obligated to resume performance of its obligations until it is able to do so consistent with Prudent Electrical Practices and if, after the Suspension Date, the Non- Defaulting Party has entered into any arrangement with any Person for the purchase or sale of the Interval Quantity, the Buyer's Environmental Attributes and/or the Buyer's Facility Attributes and such arrangement extends beyond the date of such cure, the Non-Defaulting Party shall not be obligated to resume performance of its obligations under this Agreement until the termination or expiration of such arrangement. (c) No Termination or Sus�ension without Cause. Notwithstanding anything to the contrary contained in this Agreement, except for the rights to terminate and suspend expressly set forth in Section 3(d), Section 23 and this Section 15, neither Party shall have any right to terminate this Agreement or suspend its performance for any reason. (d) Inabilitv to Perform Due to Breach. If a breach by a Party of this Agreement shall wholly or partly prevent the performance (or the ability to perform) of the other Party under this Agreement, then the performance of the Non-Defaulting Party shall be excused to the extent prevented by the Defaulting Party's breach. For clarity, the breach by a Party shall not prevent the performance of the other Party if such performance is limited to the payment of money. (e) No Cross-Default. Notwithstanding anything to the contrary in this Agreement or in any other agreement or document, this Agreement shall not be affected in any manner by any cross-default or other provision in any other agreement or document (whether between the Parties, any of their Affiliates or any other Persons and whether entered into before or after the Effective Date). -20- (f) Remedies Cumulative. Except as expressly provided in this Agreement, all remedies are cumulative and not exclusive of any rights, privileges and remedies provided by applicable law. 17. Setoff. If after the termination of this Agreement pursuant to Section 16 amounts are owed between the Parties, whether under this or any other agreements, the Non-Defaulting Party shall be entitled, at its option and in its discretion, to set off against such amounts owed pursuant to this Agreement any amounts due and owing by the Defaulting Party to the Non-Defaulting Party under any other agreements, instruments or undertakings between the Defaulting Party and the Non- Defaulting Party. The remedy provided for in this Section shall be without prejudice and in addition to any right of setoff, combination of accounts, lien or other right to which any Party is at any time otherwise entitled (whether by operation of law, contract or otherwise). 18. Notices and Formal Communications. All notices, demands or other communications that either Party must give to the other under, or in connection with, this Agreement shall be in writing and shall be delivered either by hand or overnight courier addressed to the relevant Party at the address stated in ANNEX VII, as amended, restated, supplemented, or otherwise modified and in effect from time to time. The employees and staff of the Parties are authorized to make changes to ANNEX VII as necessary to update obsolete information without prior approval from their respective governance organizations. Notices by hand delivery shall be effective on the Business Day when received, if received before 5:00 p.m. PT, and, if received thereafter, shall be deemed received on the next following Business Day. Notices sent by overnight courier shall be deemed received on the date noted as delivered on the receipt of a reputable courier company showing the correct address of the addressee. 19. Confidentiality. (a) Non-Disclosure. To the extent permitted by law, and except as provided in this Section 19, neither Party nor its respective employees, agents, partners, affiliates, officers, directors and advisors shall publish, disclose, or otherwise divulge Confidential Information to any Person at any time during or for two (2) years after the end of the Term (during which the Parties' obligations under this Section 19 shall survive), without the other Party's prior express written consent. Except as may otherwise be required by Applicable Laws (but subject to the remainder of this Section 19), no press release or other similar public announcement or publication in any media concerning this Agreement or the subject matter of this Agreement may be made by either Party without the consent of the other Party. The Parties shall be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with, the confidentiality obligation in this Section 19. (b) Publicitv. Notwithstanding the foregoing, the Parties are expressly authorized to disclose to third parties the location, size and technology of the Facility, and that it is selling or purchasing Energy and Environmental Attributes from the Facility, as applicable, and may also disclose the Term of this Agreement and the fact that the price is fixed; provided that any -21- II:� II: II:::��...II...II: II:::� such disclosure shall not, without the other Party's prior express written consent include any other Confidential Information. (c) Rec�uired Disclosure. A receiving Party may use and disclose Confidential Information where required to do so in litigation, administrative, regulatory or other legal proceedings or otherwise by Applicable Laws, but only after notice to the providing Party and, if legally permissible, affording the providing Party an opportunity to seek a protective order or other relief to prevent or limit disclosure of the Confidential Information. In such event, the receiving Party shall reasonably cooperate, at the providing Party's expense, in connection with the providing Party's efforts to obtain such protective order or other relie£ Further, each Party shall use all reasonable efforts to maintain the confidentiality of the Confidential Information in any litigation or administrative or regulatory proceeding or in any other instance where disclosure is required by Applicable Laws, and shall promptly notify the providing Party of any attempt by a third party to obtain the Confidential Information through legal process or otherwise. (d) Permitted Disclosure. Notwithstanding anything to the contrary herein, each Party may provide any Confidential Information: (i) to the Connecting Utility, the Independent System Operator, any other Governmental Authority or any other Person (including subcontractors, consultants, accountants, financial advisors, experts, legal counsel and other professional advisors to the Parties) as required for scheduling, settlement and billing or otherwise to perform under or administer this Agreement; (ii) to its employees, agents, partners, affiliates, officers, directors and advisors (including attorneys, accountants, consultants and rating agencies); provided such Persons agree to preserve the confidentiality of the Confidential Information in accordance with the terms and provisions of this Agreement (it being agreed that the receiving Party shall be responsible and liable for any failure of such Persons to comply with the terms and provisions of this Agreement) and (iii) in the case of Seller, to Financing Parties or potential Financing Parties, Affiliates and lessors, owners of and potential bidders and bidders for, and potential purchasers and purchasers of, direct or indirect interests in the Facility (including direct or indirect interests in the equity interests of Seller) and to any credit rating agency that has issued a Credit Rating for Seller or any of its Affiliates. Each Party shall cause its personnel and all Persons to whom it discloses the Confidential Information to treat it confidentially and to not disclose it to any other Person in any manner whatsoever. The obligation to provide confidential treatment to Confidential Information shall not be affected by the inadvertent disclosure of Confidential Information by either Party. (e) Texas Public Information Act. Notwithstanding any other provision of this Article 19, the Parties understand that Buyer is a governmental entity and is required to comply, and Buyer does agree to comply, with the Texas Public Information Act (Chapter 552 of the Texas Government Code) when responding to requests for records in its possession except where the information is considered public power Utility competitive information protected by the provisions of the Texas Government Code, Sections 552.101, 552.104, 552.110 and/or 552.133. Disclosure of information required by the Texas Public Information Act shall not constitute a breach of any provision contained herein if so ordered by the State of Texas Attorney General. Notwithstanding the foregoing, the Parties acknowledge and agree that this Agreement is confidential, commercially sensitive information protected from disclosure pursuant to the Texas Public Information Act. In the event that Buyer is requested or required by legal or regulatory authority to disclose this any Confidential Information, Buyer shall promptly notify Seller of such request -22- II:� II: II:::��...II...II: II:::� or requirement prior to disclosure, if permitted by law, so that Seller may seek an appropriate protective order. In the event that a protective order or other remedy is not obtained. Buyer agrees to furnish only that portion of the Confidential Information that it reasonably determines, in consultation with its counsel, is consistent with the scope of the subpoena or demand, and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information. 20. Records and Audits; Information Rights. (a) Records and Audits. Seller shall create and keep (i) meter records and other records substantiating amounts due under this Agreement and (ii) all other records required to be kept by Seller according to Applicable Law. Seller shall maintain the records that it is required to create and keep under this Section 20(a) according to Applicable Laws, Prudent Electrical Practices and, if applicable, generally accepted accounting practices, consistently applied. Each Party shall keep and maintain those records for a period of at least two (2) years after the respective records are created, and the other Party may inspect and audit those records during normal business hours upon reasonable advance notice. Each Party's costs of audits will be borne by such Party; provided, however, that should the auditing Party's audit reveal an error by the audited Party in excess of $10,000 that, had that error not been made, would benefit the auditing Party, the audited Party will bear both the auditing Party's and its own costs of that audit. (b) Information Ri _�hts. Seller shall, within sixty (60) days after written request from Buyer, at Buyer's cost, establish a method to securely and electronically deliver, in real-time, the data from the Facility's SCADA system specified in ANNEX X or as otherwise available and requested, via File Transfer Protocol or another electronic transfer protocol agreed by the Parties in writing. 21. Assignment. (a) Permitted Assi_�nment. Neither Party shall be entitled to assign or transfer all or any portion of its interest in this Agreement except as provided herein, without the prior written consent of the non-assigning Party, which consent shall not be unreasonably withheld, delayed or conditioned. Any purported transfer in contravention of this Section 21 shall be void. Notwithstanding the foregoing, a Party may make the following assignments without the prior written consent of the other party, but shall provide written notice of such permissible assignments as soon as practical: (i) Seller may collaterally assign this Agreement to a Financing Party; (ii) Either Party may transfer or assign all, but not less than all, of its rights and obligations under this Agreement to an Affiliate, so long as (i) in the non- assigning party's reasonable discretion, such Affiliate's ability to perform the relevant obligations of this Agreement, directly or through contractors, is equal to or greater than that of such Party at the time of assignment, (ii) such Affiliate's Credit Rating is equal to or greater than the Credit Rating of the assigning Party, and (iii) such Affiliate either maintains or replaces any Performance Assurance provided by the assigning Party; and - 23 - II:� II: II:::��...II...II: II:::� (iii) Either Party may transfer or assign all, but not less than all, of its rights and obligations under this Agreement to any Person succeeding to all or substantially all of its assets, so long as (i) in the non-assigning party's reasonable discretion, such Person's ability to perform the relevant obligations of this Agreement, directly or through contractors, is equal to or higher than that of such Party at the time of assignment, (ii) such Party has a Credit Rating equal to or greater than the Credit Rating of the assigning Party, and (iii) such Party either maintains or replaces any Performance Assurance provided by the assigning Party. (b) Release. In no event shall the assigning Party be released from its liabilities and obligations under this Agreement without the consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, if either Party assigns this Agreement as permitted by this Section 21, such assigning Party shall, to the extent the assignee assumes the liabilities and obligations of such assigning Party under this Agreement, be released from such liabilities and obligations; provided further that such release shall not apply, and the assigning Party shall not be released from its liabilities and obligations relating to, the period prior to the date of assignment with respect to any Event of Default that has occurred and is continuing at the time of such assignment if such Event of Default is not cured by the assignee in accordance with this Agreement. (c) Subcontractors. Notwithstanding the foregoing, Seller may subcontract its duties or obligations under this Agreement without the prior written consent of Buyer, provided that no such subcontract shall relieve Seller of any of its duties or obligations hereunder and provided further that Seller shall ensure that Subcontractor insures Buyer as an additional insured under its policies. (d) Assi�nment to Financin� Party. If Seller collaterally assigns this Agreement to a Financing Party pursuant to Section 21(a)(i), Seller shall notify Buyer in writing of the name, address, and telephone and facsimile numbers of each Financing Party to which Seller's interest under this Agreement has been assigned and the following provisions shall apply: (i) The Financing Parties shall, at any time, have the right, but not the obligation, to perform any act, duty, or obligation required of the Seller under this Agreement and to cure any of Events of Default by Seller; (ii) The Buyer shall not terminate or suspend its performance under this Agreement due to an Event of Default by Seller unless Buyer has first given the Financing Parties (A) prior written notice of such Event of Default, the applicable cure period related thereto as set forth in this Agreement and the action to be taken to cure such Event of Default, and (B) the opportunity to cure such Event of Default during the applicable cure period related to such default as set forth in this Agreement plus an additional thirty (30) days; provided, however, that if such default reasonably cannot be cured by the Financing Parties within the period provided and the Financing Parties or an assignee commence and continuously pursue cure of such default within that period, the period for cure will be extended for a reasonable period of time under the circumstances, but not to exceed an additional sixty (60) days; -24- II:� II: II:::��...II...II: II:::� (iii) In the event an Event of Default by Seller is not susceptible of cure by the Financing Parties, the Buyer shall not exercise its right to terminate or suspend performance under this Agreement so long as the Financing Parties or an assignee (including any purchaser or transferee) assume in writing, prior to the expiration of the cure period set forth in Section 21(d)(ii), the Seller's rights and obligations under this Agreement and thereafter cure all then-existing Events of Default that are susceptible of cure by the Financing Parties or an assignee. Upon completion of the foregoing, the Buyer agrees that the Financing Parties or the assignee, as applicable, will no longer be in default under this Agreement, and this Agreement will continue in full force and effect; (iv) If (A) possession or control of the Facility is necessary for the Financing Parties or an assignee to cure any Event of Default by Seller or to assume Seller's rights and obligations under this Agreement and the Financing Parties or an assignee have commenced, and are diligently pursuing, proceedings or actions to obtain possession or control of the Facility or (B) the Financing Parties or an assignee are prohibited by any court order or bankruptcy or insolvency proceedings from taking any actions to cure an Event of Default by Seller, the Financing Parties' or an assignee's cure period shall be extended by a period of time reasonably necessary to complete such proceedings or actions, or by the period of such prohibition; (v) The Buyer shall simultaneously deliver to the Financing Parties copies of all material notices delivered by Buyer to Seller under or pursuant to this Agreement; (vi) Buyer shall not enter into any consensual cancellation or termination of this Agreement, or assign or agree to any assignment of this Agreement, without the prior written consent of the Financing Parties; and (vii) Upon the receipt of a written request from Seller or any Financing Party, Buyer shall execute such documents evidencing Buyer's consent and agreement, in form and substance reasonably requested by the Financing Parties and reasonably acceptable to Buyer (such acceptance by Buyer not to be unreasonably withheld, conditioned or delayed) and shall deliver to the Financing Parties and Seller an opinion of counsel, in form and substance reasonably acceptable to the Financing Parties; provided that if requested by Buyer, Seller shall reimburse Buyer for its third-party legal expenses incurred in reviewing such documents and providing such opinion of counsel. 22. Market Disruption Event. If a Party believes that a Market Disruption Event has occurred, such Party shall deliver written notice to the other Party detailing the same and the Parties shall thereafter mutually determine a replacement Market Price or other solution resulting in the economic effect most closely representing the intention of the Parties as expressed herein. If after thirty (30) days of negotiating in good faith, the Parties are unable to determine a replacement Market Price, the Parties may pursue dispute resolution in accordance with Section 26. No payment of Settlement Amounts or transfer of Environmental Attributes or Facility Attributes shall take place for the period starting from the Market Disruption Event until the Parties have determined a replacement - 25 - II:� II: II:::��...II...II: II:::� Market Price. Once a replacement Market Price has been determined, Environmental Attributes and Facility Attributes will transfer retroactively, and payments will settle retroactively to the Market Disruption Event, based on the replacement Market Price. 23. Change in Law; No Challenge. (a) Chan�e in Law. The Parties agree that the Fixed Price and the calculation of the Settlement Amount account for the cost of compliance with Applicable Law in effect as of the Effective Date. Notwithstanding the foregoing, if a Change in Law substantially increases the cost of operating and maintaining the Facility or performing the obligations of the Parties under this Agreement, Buyer and Seller will meet to discuss such Change in Law and the effect thereof on the economic benefits and burdens of the Parties under this Agreement; provided, however, the execution of any amendment to this Agreement in response thereto shall be subject to the agreement of the Parties in their sole and absolute discretion. (b) No Challen�e. Neither Party shall directly or indirectly challenge the equity, fairness, reasonableness or lawfulness of any prices, fees, rates, terms or conditions set forth in or established according to this Agreement, as those prices, fees, rates, terms or conditions may be at issue before any Governmental Authority or arbitrator, if the successful result of such challenge would be to preclude or excuse the performance of this Agreement in accordance with its terms by either Party or to prospectively or retroactively revise such prices, fees, rates, terms or conditions; provided, however, that for purposes of clarity nothing in this Section 23(b) shall (i) limit either Party's rights under Section 11(c) or 11(e); or (ii) prevent or prohibit Buyer from challenging the methodology or the calculation of the Market Price by the Independent System Operator. To the extent that either Party may be called upon by any Governmental Authority to do so, each Party shall support and defend the effectiveness of this Agreement before such Governmental Authority when the substance, validity or enforceability of all or any part of this Agreement is challenged or called into question before such Governmental Authority. Without limiting the foregoing, neither Party shall seek (directly or indirectly), nor support any third party in seeking, to revise the prices, fees, rates, terms or conditions set forth in or established according to this Agreement through application or complaint to FERC or any other Governmental Authority. Further, the Parties agree that the standard of review for changes to the prices, fees, rates, terms or conditions set forth in or established according to this Agreement proposed by a Party (to the extent that any waiver in this Section 23(b) is unenforceable or ineffective as to such Party), a non-Party or any regulatory agency acting sua sponte shall solely 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 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956) and clarified by their progeny, including Morgan Stanley Capital Group, Inc. v. Public Util. Dist. No. 1 of Snohomish, 554 U.S. 527 (2008), or the "public interest" standard of review set forth in High Plains Natural Gas Co. v. Railroad Commission, Tex. Civ. App. - Austin 1971, writ ref'd n.r.e, and the Parties shall not take a contrary position in any proceeding. 24. Force Majeure. (a) Effect of Force Majeure. To the extent a Party is prevented by Force Majeure from carrying out, in whole or in part, its obligations under this Agreement, then the affected Party shall be excused from performing such obligations in accordance with this Section -26- II:� II: II:::��...II...II: II:::� 24. Notwithstanding the foregoing, in no event shall either Party be relieved of its obligations to make timely payments for products or services provided prior to a Force Majeure event. (b) Notice of Force Majeure Event and Cure Plan. The Party claiming the occurrence of a Force Majeure event that prevents it from performing its obligations under this Agreement shall give the other Party written notice of the Force Majeure event, including the date of its initiation, as soon as practicable after the affected Party becomes aware of such Force Majeure event and shall provide evidence of the occurrence of such Force Majeure Event and other available details no later than five (5) days after the affected Party becomes aware of such Force Majeure event further describing the facts related to the occurrence and consequences of the Force Majeure event. Such Party shall proceed with commercially reasonable efforts to overcome the events or circumstances preventing or delaying its performance and shall prepare a Force Majeure cure plan describing the actions reasonably expected to be necessary to overcome the Force Majeure event and the time reasonably anticipated to perform such actions. Thereafter, such Party shall provide progress reports to the other Party at least every thirty (30) days describing actions taken to remedy the consequences of the Force Majeure event, the schedule for future actions and the expected date by which performance shall no longer be affected by the Force Majeure event. When such Party has overcome such Force Majeure event and is ready to resume full performance under this Agreement, written notice shall be provided to the other Party and full performance shall resume. Notwithstanding the foregoing in no event shall a Party's failure to delivery any notices, cure plans, progress reports or any other information under this Section 24(b) be deemed a waiver of such Party's right to any claim related to such Force Majeure event. (c) Termination Due to Force Majeure. If any Force Majeure event (i) prior to the Commercial Operation Date, prevents the Facility from achieving Commercial Operation or (ii) following the Commercial Operation Date, prevents substantially all of the Generation Equipment from generating or delivering Energy to the Interconnection Point, in each case for a period of twelve (12) consecutive months or longer, either Party may (so long as the consecutive days of excused performance are continuing) terminate this Agreement, without liability of either Party to the other arising out of such termination, upon at least thirty (30) days written notice. For the avoidance of doubt, in the event this Agreement is terminated pursuant to this Section 24(c), Seller shall not be liable for (A) any Delay Damages, Environmental Attribute Damages or Availability Damages accruing after the occurrence of such Force Majeure event, (B) any Buy Down Amount, or (C) any Early Termination Payment. � -27- II:� II: II...��...II...II: II...� 26. Dispute Resolution. (a) The Parties will attempt in �ood faith to resolve anv Dispute bv prompt ne�otiations between each Partv's authorized representative desi�nated in writin� as a representative of the Partv (each a"Mana�er"�. Either Manager may, by Notice to the other Party, request a meeting to initiate negotiations to be held within ten (10) Business Days of the other Party's receipt of such request, at a mutually agreed time and place (either in person or telephonically). If the matter is not resolved within fifteen (15 ) Business Days of their first meeting ("Initial Negotiation End Date"), the Managers 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. (b) Within five (5) Business Davs of the Referral Date, the Executives shall establish a mutuallv acceptable location and date, which date shall not be �reater than thirtv (30� davs from the Referral Date, to meet. After the initial meeting date, the Executives shall meet, as often as they reasonably deem necessary, to exchange relevant information and to attempt to resolve the dispute. (c) All communication and writing exchanged between the Parties in connection with these negotiations shall be confidential and shall not be used or referred to in any subsequent binding adjudicatory process between the Parties. If the matter is not resolved within forty-five (45) days of the Referral Date, or if the Party receiving the Notice to meet, pursuant to Section 26(a) above, refuses or does not meet within the ten (10) Business Day period specified in Section 26(a) above, and subject to Section 14, Section 28(e) and Section 28(� of this Agreement, either Party may pursue all remedies available to it at law or in equity. 27. Intentionally Omitted. 28. Miscellaneous. (a) Entire A�reement. This Agreement, including all Annexes hereto, each of which are incorporated herein by reference, contains the entire understanding of the Parties with respect to the subject matter hereof and shall completely and fully supersede all prior understandings or agreements, both written and oral, including any term sheet, between the Parties -28- II:� II: II:::��...II...II: II:::� relating to the subject matter hereof and thereof. No representations, inducements, promises, or agreements, oral or otherwise, have been relied upon or made by any Party, or anyone on behalf of a Party, that are not fully expressed in this Agreement. The section titles in this Agreement are only for purposes of convenience and do not form a part of this Agreement and will not be taken to qualify, explain or affect any provision thereof. (b) Severabilitv. If any article, section, phrase or portion of this Agreement is held to be invalid, illegal or unenforceable for any reason, such article, section, phrase, or portion so adjudged will be deemed separate, severable and independent and replaced automatically by a legal, valid and enforceable provision which most nearly accomplishes and reflects the original intention of the Parties. This Agreement, as so modified, shall remain in full force and effect and shall not be invalidated or rendered illegal or unenforceable or otherwise affected thereby. If the application of any provision of this Agreement to any Person or circumstance is determined to be void, unlawful, or unenforceable, then that provision shall remain valid, lawful, and enforceable as applied to other Persons and circumstances. (c) Amendment/Bindin� Effect. This Agreement shall become effective and binding upon the Parties as of the Effective Date upon the execution and delivery of this Agreement by each of the Parties. This Agreement may not be amended, changed, modified, or altered unless such amendment, change, modification, or alteration is in writing and signed by both of the Parties. This Agreement shall inure to the benefit of and shall be binding upon the Parties and their respective successors and permitted assigns. (d) Waiver. No delay or omission by a Party in the exercise of any right under this Agreement shall be taken, construed or considered as a waiver or relinquishment thereof, and any such right may be exercised from time to time and as often as may be deemed expedient. If any term and condition hereof is breached and thereafter waived by a Party, such waiver shall be limited to the particular breach so waived and is not deemed to waive any other breach hereunder. (e) Governin� Law; Venue. This Agreement and the rights and duties of the Parties hereunder shall be governed by and shall be construed, enforced and performed in accordance with the laws of the State of Texas, without regard to principles of conflicts of law that would require the application of the laws of any other jurisdiction. Each Party hereby agrees to the exclusive jurisdiction of the federal and state courts in Dallas County, Texas, United States of America as necessary to enforce this Agreement. (f) Waiver of Jurv Trial. EACH OF THE PARTIES HEREBY IIZREVOCABLY WANES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO HAVE A NRY PARTICIl'ATE IN RESOLVING ANY DISPUTE ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIl' BETWEEN THEM BY THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. (g) Bankruptcv Treatment. The Parties acknowledge and agree that (i) this Agreement constitutes a"forward contract" and that Seller and Buyer are "forward contract merchants" and all payments under this Agreement are "transfers" or "settlement payments" in each case within the meaning of the Bankruptcy Code; and (ii) the Parties are entitled to the rights -29- II:� II: II:::��...II...II: II:::� under, and the protections afforded by, Sections 362(b), 546, 548(c), 556, 560, 561 and 562 of the Bankruptcy Code. In addition to, and not in lieu of, the rights and protection set forth in the preceding sentence, and although the Parties intend that the transactions contemplated herein be sales and purchases and not loans, in order to secure its obligations under this Agreement, each Party hereby grants the other Party a present and continuing security interest in, lien on, and right (without limiting Section 11(c)) to set-off against, its respective payment obligations to the other Party under this Agreement. (h) Equitable Relief. Nothing in Section 26 shall prevent either Party from applying to a court of competent jurisdiction (subject to Section 28(e)) for interim measures, specific performance, or other similar relief prior to completion of the procedures in Section 26. (i) Facilitv Site Visits. During the Term, Buyer may request of Seller permission to visit the Facility site during normal business hours. Seller shall accommodate any and all reasonable requests of Buyer with respect to such visits; provided that Buyer shall comply with all Seller health and safety policies and procedures and instructions while present at the Facility site and shall conduct itself in a manner that will not interfere with or disrupt the operation of the Facility or other activities of Seller and its subcontractors. (j) Further Assurances. Each Party shall deliver or cause to be delivered to the other Party such instruments, documents, statements, certificates of its officers, accountants, engineers or agents as to matters as may be reasonably requested, and shall make available, upon reasonable request, personnel and records relating to the Facility to the extent required for the requesting Party to carry out the purposes of this Agreement or fulfill any legal obligation or regulatory reporting requirements. (k) No Ri�hts of Third Parties. This Agreement is intended only for the Parties' benefit, and nothing in this Agreement may be construed to create any duty to, any standard of care concerning, or any liability to, any person not a Party to this Agreement, other than the rights of Persons expressly included in the Liability Limitations to the protection of such Liability Limitations. (1) Joint Preparation. This Agreement was prepared j ointly by the Parties, each Party having had access to advice of its own counsel, and not by either Party to the exclusion of the other Party, and shall not be construed against one Party or the other as a result of the manner in which this Agreement was prepared, negotiated or executed. (m) Relationship of the Parties. This Agreement shall not be interpreted or construed to (a) create an association, joint venture or partnership between the Parties or impose any partnership obligation or liability on either Party, or (b) create any agency relationship between the Parties or impose any fiduciary duty of any kind on either Party, or (c) create a trust or impose any trust obligations of any kind on either Party, or (d) constitute a lease of any properties of any kind. Neither Party shall have any right, power or authority to enter into any agreement or undertaking for, or act on behalf of, or act as or be an agent or representative of, or otherwise bind, the other Party. Each Party waives any and all rights that it may otherwise have under Applicable Laws or legal precedents to make any claim or take any action against the other Party or any of its -30- II:� II: II:::��...II...II: II:::� Related Persons in respect of this Agreement based on any theory of agency, fiduciary duty or other special standard of care. (n) Counter�arts. This Agreement may be executed in several counterparts, each of which is an original and all of which constitute one and the same instrument. (o) Si�natures. The exchange of copies of this Agreement and of signature pages by facsimile or other electronic transmission shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted by facsimile or other electronic means shall be deemed to be their original signatures for all purposes. (p) Ima�ed A�reement. Any original executed copy of this Agreement or any other related document may be photocopied and stored on computer tapes and disks ("Im�a ed A�reement"). If an Imaged Agreement is introduced as evidence in any judicial, arbitration, mediation or administrative proceedings, neither Party shall object to the admissibility of the Imaged Agreement on the basis that such was not originated or maintained in documentary form under the hearsay rule, the best evidence rule or other rule of evidence. (q) Survival. All provisions of this Agreement that are expressly or by implication to come into or continue in force and effect after the expiration or termination of this Agreement shall remain in effect and be enforceable following such expiration or termination. Signature Page Follows. -31- II:� II: II:::��...II...II: II:::� IN W[TNESS WHEREOP', the Parties have executed this Agreeinent as of the Effective Date set forth above. SELLER: Samson Solar Energy LLC ��'�... _.. �� N��;��; ��Ni'�� M 4 �'�h� � � "1�it9i� ��"��;�° ��C�i"�. BY�.m...__ Name: Title: � BUYER: City of Denton, Texas, a Texas home-rule municipal corporation �:3�:. _.... � w�.._ Name: Chris W�►±, Title: Mayor Attest: l� �, Name: Jennifer Walters Title: City Secretary Approved at to legal forin: BY��,,,��.._.._ Name: Aaron Leal Title: City Attorney THIS AGREEMENT HAS BEEN BOTH REVIEWED AND APPROVED as to financial and operational obligations �o�� business terms. � ° �� ,��'��,� ��'�� ,�p"b�N�I�M"� ..� � ��"�,��;"� . �r "- �,"',9�, � �Y' � � � a": — �� ., r ��,�m.�� Departmerrt ��........... Date Signed: _ � � °m ��.�� °�� '� [Signature Page to Renewable Energy Purchase Agreeinent] ANNEX I— DEFINITIONS AND INTERPRETATION L DEFINITIONS "Affiliate" shall mean, when used with reference to a specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the specified Person; provided, however, that the term "Affiliate," when used with respect to Seller, shall not include any direct or indirect tax equity investor in Seller. For purposes of this definition, "control" shall mean the power or authority, through ownership of voting securities, by contract or otherwise, to direct the management of the specified Person. "A�reement" shall have the meaning set forth in the introductory paragraph. "Ancillarv Services" shall mean the services capable of being provided by the Facility at the Interconnection Point that are described as "Ancillary Services" in the Independent System Operator Protocols at the applicable time. "Antici�ated Name�late Ca�acitX" shall mean the Capacity of the Facility as set forth in ANNEX II. "Applicable Laws" shall mean all (a) constitutions, treaties, statutes, laws, ordinances, rules, regulations, protocols, standards, judgments, decrees, injunctions, writs, and orders of any Governmental Authority, (b) rules or listing requirements of any stock exchange or trading market on which securities issued by either of the Parties or any of their respective Affiliates are listed or quoted; (c) decisions of and determinations by, and interpretations of, any of the foregoing set forth in clauses (a) and (b) by any Governmental Authority or stock exchange or trading market or arbitrator; and (d) requirements of permits, in the case of each of the items described in clauses (a)-(d), that apply to either or both of the Parties or their Affiliates, the Facility, the terms of this Agreement or otherwise to the Person or matter in question. Applicable Laws includes the ERCOT Protocols and ERCOT Other Binding Documents and the requirements of NERC and any applicable regional reliability entity. "Authorization" shall mean any license, permit, approval, filing, waiver, exemption, variance, clearance, entitlement, allowance, franchise, or other authorization from or by a Governmental Authority. "Availabilitv Dama�es" shall have the meaning set forth in Section 9(a)(i). "Available Resource" shall mean, for each Calculation Interval, the available renewable resource for use by the Facility to generate Energy, as measured by the Plane of Array (POA) pyranometers; provided, however, that if a POA pyranometer is unavailable, then the closest POA pyranometer shall apply, and if no POA pyranometers are available, then the Available Resource shall be determined by the Solar Anywhere Clean Power Research satellite modeled dataset. "Availabilitv Shortfall" means, for any Contract Year, the amount (expressed in MWhs) equal to the product of (i) (a) the Guaranteed Availability Percentage divided by the Mechanical Availability Percentage, minus (b) one (1), and (ii) the total Interval Quantity for such Contract Annex I - 1 II:� II: II...��...II...II: II...� Year; provided that, if such calculation results in a negative number, the Availability Shortfall for such Contract Year shall be deemed to be zero (0). "Avera�e Environmental Attribute Value" shall mean, with respect to any Environmental Attribute that Seller fails to transfer to Buyer due to Seller's failure under Section 8(a), the amount (expressed in $/MWh or $/MW, as applicable) equal to the average of at least two (2) price offers obtained from nationally recognized brokers within fifteen (15) days of when the Environmental Attributes were to have been transferred to Buyer, for the sale and delivery of Comparable Environmental Attributes of the same vintage as such Environmental Attribute in lots of the same quantity as the aggregate number of Environmental Attributes not transferred to Buyer. The average of at least two price offers obtained from nationally recognized brokers will be generated by the Buyer and submitted to the Seller. "Avera�e Market Price" shall mean, with respect to any Contract Year, the production- weighted average of the Market Price for all Calculation Intervals during such Contract Year. The Average Market Price shall equal (i) the sum of, for each Calculation Interval, (a) the Market Price multiplied by (b) the Interval Quantity, divided by (ii) the total Interval Quantity for such Contract Year. `Bankru�tcv Code" means the Bankruptcy Reform Act of 1978, 11 U.S.C. §§101 et seq., as amended from time to time. `Benchmark QuantitX" shall mean, for each Calculation Interval, the Buyer's Pro-Rata Fraction of Energy the Facility is capable of producing, given the then Available Resource, as calculated in accordance with the methodology set forth in ANNEX V. `Best" shall mean AM Best Company, a nationally recognized insurance rating agency or its successor in interest. `Block" shall mean a discrete unit of solar panels, DC collection system, and inverter(s) that are capable of generating solar energy independent from other Blocks at the Facility. "Business Dav" shall mean a day on which Federal Reserve member banks in New York City are open or required to be open for business. "Buv Down Amount" shall have the meaning set forth in Section 3(e). `Buver" shall have the meaning set forth in the introductory paragraph. "Buver Due Date" shall mean, with respect to any invoice issued by Seller pursuant to Section 11(b), the later of (a) the thirtieth (30�h) day after the end of the applicable Monthly Settlement Period or (b) thirty (30) days after such invoice was issued by Seller. "Buver's Anticipated Pro-Rata Fraction" shall mean the percentage equal to the Buyer's Pro-Rata Capacity divided by the Anticipated Nameplate Capacity. "Buver's Environmental Attributes" shall mean the Environmental Attributes associated with the Interval Quantity or the Buyer's Pro-Rata Fraction of the Facility. Annex I - 2 II:� II: II...��...II...II: II...� "Buyer's Facility Attributes" shall mean the Facility Attributes associated with the Interval Quantity or the Buyer's Pro-Rata Fraction of the Facility. "Buver's Performance Assurance" shall have the meaning set forth in Section 12(b)(i). "Buver's Performance Assurance Release Date" shall have the meaning set forth in Section 12(b)(i). "Buver's Pro-Rata Capacity" shall mean 75 MW, as the same may be reduced by Section 3(e). "Buver's Pro-Rata Fraction" shall mean the percentage equal to the Buyer's Pro-Rata Capacity divided by the Installed Nameplate Capacity. "Calculation Interval" shall mean the period of time utilized by the Independent System Operator as the basis for settlement calculations in the Real-Time Energy Marketi. "Capacity" shall mean the continuous load carrying capability of the generating Facility at a given time. "Capacitv Benefits" shall mean any current or future capacity credits or similar accreditations based upon the Capacity of the Facility at the Interconnection Point that may be available under Applicable Laws from time to time, excluding Environmental Attributes and Incentives. "Cash Collateral" shall mean cash collateral held in a depositary account by a Creditworthy Bank for the benefit of the Performance Assurance Beneficiary under a depositary and security agreement that allows disbursement to the Performance Assurance Beneficiary upon the terms and conditions of Section 12(c)(ii) and provide for return thereof to the Performance Assurance Provider according to Section 12(c)(v) and 12(c)(vi). "Certificate" shall mean the certificate representing a REC created and accounted for by TRECP, pursuant to PUCT rulings and implemented in the ERCOT Protocols. "CFTC" shall mean the Unites States Commodity Futures Trading Commission. "CFTC Re�ulations" shall mean the rules, regulations, orders, supplementary information, guidance, questions and answers, staff letters, and interpretations published or issued by the CFTC, in each case as amended, and when used herein may include specific citations to Titles, Parts, or Sections of Title 17 of the Code of Federal Regulations without otherwise limiting the applicability of other rules, regulations, orders, supplementary information, guidance, questions and answers, staff letters, and interpretations. "Chan�e in Law" shall mean the occurrence, after the Effective Date, of any of the following (a) the adoption or taking effect of any Applicable Law; (b) any change in any Applicable Law or in the administration, interpretation or application thereof by any Governmental iAs of the Effective Date, the time interval utilized by the Independent System Operator is 15-minutes. Annex I - 3 II:� II: II...��...II...II: II...� Authority; or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by Connecting Utility or any Governmental Authority. "Commencement Date" shall mean the first day of the month immediately following Commercial Operation. "Commercial Operation Date" shall mean the date on which the Facility achieves Commercial Operation. "Commissioned" or "Commissionin�" shall mean, as to each discrete generator included in the definition of Generation Equipment, the performance of the start-up and commissioning activities identified in the manufacturer's commissioning completion checklist. For the a�oidance of doubt, the achievement of Commissioning shall not be considered reversed for any reason once achieved. "Commoditv Exchan_�e Act" means the Commodity Exchange Act (7 U.S.C. § 1 et seq.). "Comparable Environmental Attribute" shall mean an Environmental Attribute from a renewable energy generation resource equivalent to the Facility, of the same vintage (if applicable) recognized pursuant to the Qualified Program(s). "Confidential Information" shall mean this Agreement, as amended, restated, supplemented, or otherwise modified and in effect from time to time, and all other information, written or oral, which has been or is disclosed by a disclosing Party, or which otherwise becomes known to the receiving Party, including as a result of visits to the Facility pursuant to Section 28(i), and which (A) relates to matters such as patents, trade secrets, research and development activities, draft or final contracts or other business arrangements, books and records, solar data and analysis, generation data and analysis, budgets, cost estimates, pro forma calculations, engineering work product, environmental compliance, vendor lists, suppliers, manufacturing processes, energy consumption, pricing information, private processes, and other similar information, as they may exist from time to time, or (B) the disclosing Party expressly designates in writing to be confidential. Notwithstanding the foregoing, the following information does not constitute Confidential Information for purposes of this Agreement: (a) information that is or becomes generally available to the public other than as a result of a disclosure by the receiving Party in violation of this Agreement; (b) information that was already known by the receiving Party on a non-confidential basis prior to this Agreement; (c) information that becomes available to the receiving Party on a non-confidential basis from a source other than the disclosing Party if such source was not subject to any prohibition against disclosing the information to the receiving Party; Annex I - 4 II:� II: II...��...II...II: II...� (d) information that the receiving Party develops independently without using the Confidential Information, and (e) information that the disclosing Party approves for release in writing. "Connectin_� UtilitX" shall mean Oncor Electric Delivery Company LLC, or the successor organization thereto that owns the portion of the electric transmission system at the Interconnection Point. "Contract Year" shall mean each one-year period during the Settlement Term commencing at the start of the Settlement Term or on one of the anniversaries of the start of the Settlement Term; provided, however, that, if this Agreement is terminated prior to its expiration, the Contract Year in which such termination occurs will begin on the anniversary of the start of the Settlement Term immediately preceding the termination date (or, if such termination occurs during the first Contract Year, at start of the Settlement Term) and will end on the termination date. "Credit Event" shall mean, at the applicable time, with respect to any Performance Assurance, (a) if such Performance Assurance is in the form of a Guaranty, the Guarantor fails to meet the standards required in the definition of "Guaranty," (b) if such Performance Assurance is in the form of a Letter of Credit, the bank issuing such Letter of Credit ceases to have the Credit Rating required in the definition of "Creditworthy Bank," (c) if such Performance Assurance is in the form of Cash Collateral, the bank holding such Cash Collateral ceases to have the Credit Rating required in the definition of "Creditworthy Bank," (d) if such Performance Assurance is in the form of a Performance Bond, the issuer of the Performance Bond fails to meet the standards required in the definition of Performance Bond, or (e) in the case of any other Performance Assurance, such Performance Assurance ceases to be in full force and effect at such time. "Credit Ratin�" shall mean, for any Person, the senior unsecured and uncredit-enhanced long term debt rating of such Person from Fitch, S&P and/or Moody's or, if such Person does not have a senior unsecured and uncredit-enhanced long term debt rating, the long term issuer rating of such Person from Fitch, S&P and/or Moody's. "Dama�es" shall mean any and all claims, liabilities, losses, damages, causes of action, fines interest, awards, penalties, litigation, lawsuits, administrative proceedings, administrative investigations, costs and expenses (including reasonable attorneys' fees, court costs and other costs of suit, arbitration, dispute resolution or other similar proceedings), including for injury, illness or death and including those owed to third parties (whether asserted in contract, in warranty, in tort, by statute or otherwise), but (for the avoidance of doubt) in all events subject to the Liability Limitations. "Dama�es Rate" shall mean, for any Contract Year, an amount equal to (a) Average Market Price for such Contract Year, minus (b) the Fixed Price for such Contract Year, plus (c) Annex I - 5 II:� II: II...��...II...II: II...� the Average Environmental Attribute Value for such Contract Year; provided that the Damages rate will never be less than $0/MWh. "Defaultin _� PartX" shall have the meaning set forth in Section 15. "Delav Dama�es" shall have the meaning set forth in Section 3(c). "Dollars" or "$" shall mean the lawful currency of the United States of America. "Due Date" shall mean, for any amount on an invoice issued by Seller pursuant to Section 11(b), (i) if Seller is required to pay such amount, the Seller Due Date or (ii) if Buyer is required to pay such amount, the Buyer Due Date. "Earlv Termination Pavment" shall have the meaning set for in Section 3(d). "Earlv Termination Ri�ht" shall have the meaning set for in Section 3(d). "Effective Date" shall have the meaning set forth in the introductory paragraph. "Ener�v" shall mean three-phase, 60-cycle alternating current electric energy, expressed in units of kilowatt-hours or megawatt-hours. � � � � - � � � "Environmental Attribute Dama�es" shall have the meaning set forth in Section 8(e). Annex I - 6 II:� II: II...��...II...II: II...� "Environmental Attribute Transfer Deadline" shall mean, with respect to any Environmental Attribute required to be transferred to Buyer according to Section 8(a), the date that is ten (10) days after the applicable monitoring, tracking, certification and/or trading system(s) posts such Environmental Attribute in Seller's account. "ERCOT Protocols" means the documents adopted by ERCOT, including any attachments or exhibits referenced in that document, as amended from time to time, that contains the scheduling, operating, planning, reliability, and settlement (including customer registration) policies, rules, guidelines, procedures, standards, and criteria of ERCOT, including without limitation the Nodal Operating Guides and the Other Binding Documents. For the purposes of determining responsibilities and rights at a given time, the ERCOT Protocols, as amended by ERCOT, which amendments have become effective 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. "ERCOT" shall mean The Electrical Reliability Council of Texas, or successor organization in function. "Event of Default" shall have the meaning set forth in Section 15. "Executives" shall have the meaning given in Section 26(a). "Expanded Capacity" shall have the meaning set forth in Section 3(h). "Facilitv" shall mean the renewable Energy generation facility described in ANNEX II. "Facilitv Attribute Revenues" shall have the meaning set forth in Section 7(b). "Facilitv Attributes" shall mean the Capacity Benefits and Ancillary Services that the Facility is capable of producing. "FERC" shall mean the Federal Energy Regulatory Commission, or its successor in function. "Financin _� PartX" or "Financin� Parties" shall mean lenders and/or equity investors (including any trustee or agent on behalf of such lenders and/or equity investors) providing equity and/or debt financing or refinancing to Seller or any of its Affiliates, whether that financing or refinancing takes the form of private debt or equity, public debt or equity or any other form. "Fitch" means Fitch Ratings or its successor. "Fixed Price" shall mean, for each Contract Year, the price (expressed in $/MWh) set forth ANNEX III. "Fixed Price Pavment" shall have the meaning set forth in Section ll(a)(i). "Force Majeure" shall mean an event or circumstance which prevents a Party from performing its obligations under this Agreement, which event or circumstance is not within the Annex I - 7 II:� II: II...��...II...II: II...� r°��r�at:l�ll� ��n�id°�1 a�i"; �b tl�e s°��ll� a�� i�n� ir�.��,li�� f, s��a:l� F"��, ;�rt�i ��1�i�1� �� 1�� i��s� �t c��e clilli��r��„�, sru�:ln ]��r•�� i� ��n��bll� t� ��r�ic� �� ta �� ei. �ranM�;� T��uu•� �l��llll rr��l�u��, nm��b+�� t��ai t7r� �n�ire�z�� x� ��n� �"un��t ��zt�e�nee �:��e �nz��, ��iaf� i��z�n��e�kia��, v��m (��n�e�i �Il- n�t'�, z�a�l�iliz�t�io�a�, �;��l�si��a, ��c�r �i��a�ake� �iz��, �+�ad, ��k�a�z�k.e, ��a�an, li��afina��, fi�in��za�aa,. 1��;1��t�� .u��d ��` �+��1, ��acl�l�:��a�., �� a�" �� a��,li�� u��aa��, ��r�c��i��aa�, ��aac9��aa�ac:� ��i.l ��l��a��, �ta��;.�, l�ak�a�� i�;h��•��c��, ��a�� l�w��r�n a��° �tc��a��°��,1�1��,�°��, ��a�t�g�� 1�k��°w�• ��. ��rt�r�� a��, ��, ;��rr��r1 c��'�� a�� tl�� llu��s �a�° tl��i�° c��r��a��t�, ��tiu��l ��r�y, tl�� r�c�ir��t, ��r��t�r�� •��1 r��: +�r a�tl��b �;1��.�� i��, �� 1�� i��t��•�i°��i+��n �ri° ��rp��z�tic�� ; d�r�� .��1i��k�ll� L��:�; �� t�r�nr a�� ni��,�ia�� l�� ,�xY�r ��av��t�1 .�:n��r��i��. �r�c��r r�� i��u�t��a�� 1� tl�e �"f��J�� :�n��t�h�t� �u�� "�n�� µji�i��e �ve��t: �i� � ��a�� l�iliit�r tc� e��t�z� ��ta-� a� ��k�� n� �kl�� la��, ��1� �aa- ��u�rc�� a��y, .F;a��r��n��e�� .r�.��ul��at�� ac�/c�� F�c�.��t� �kta� i�� a �x�� v�a��l.�l� ��n-:i�� ea�� a;uu�� aaa��a�� lal� ��lita�a��s +�a� +�t�a��a� ��ta�xz�i� ��c��,�;„ �ii) �V�l�� r��°t��r�u��u��;� 1'�� a��.��lla��.�, �a�� a��° �ztl��• ��u�°�� r�t:u�� r�ri�� F��..�� 1�;:�� ;�rr�ti�•��c�,, e��.�t �s� t�� ti�Il�t t1t�t ��u�1g c��1�� ° r��r��e��°�°�a��n�°� vw��r•� �� t� �i�ea,��n��t��n�.�� t v�°��uic� ��ai��tit�� "��b�� i�j��, �� d�fli��c� �lar,�r�, �iii� lc�� +��" l�x�,��n°''� ��riN�.�t�, ��cfl��t�an� c��" ��u�rer's �nien'��r �� u�}�e�� i�i�l�ilitly� tc� ii�� n� n-�sel� tl�e ]�"i��c��y�i�d�ul .r�,tt��il�a�t��„ +�� (�v� �rz�^ �a#��ez� ��x��a�a�: ��zz�e��a �� n�� ia� �a��u��t ��c��tttc�n�� t�`�ti�c�� t�a.� ��c�n��a�i�� " c-�� a�" t�a� P��ie� �� tta��t t��e �t��-. �w��.��uti�� Fc�auit��ua�t"' �l��ull ��a� ��.�r�� .�l��:t��i� �� r��i�� I��i��.�� r�� l�v ��al�r �� tl�� •� i��citi��c�� i�� tl�c� �'��i:1iti��> �unci �'�°<�� I�� v�u�ll�1�1� ��c�� d'� ��°��a. ��pu��rt�� .��1��°i��" s��l i�� {i� �� %��ar°��„ st,�at�� ll��1, �u��u�u�;��1 ��ry �t��. �;��d�r��ur��r�� ° �1�� w�n�� t�i�n• ��r�g°rr��t�l, c�u��i-�c��e��m��m�t��,, ��,Xzl�t�a�^ �� c��r��i�ts��i�� a��F, ��a��i��ir��z +��m �t�se�� z�t�c�a�it� �n��,1��1��1g ��.�"C`�"�`--k�� t�e�r��ucie�k ��,rsrt�� t�Il�, �`�'��", ��.�", �''��"T ��a� �� ?�i��k�ll� ��ic�aa��l r�la��i�it� �aa��i�� l��ial:l� �;��r�i�ia�a� �u� e��t�t��c� t� ��zs� �.�a� ��1��a�t��:ta��, ��at��.,�j��%�;i�l, l��u�l��z:v�ry �aa�llu�;�� a�llia��'� z��l�tc�ry ea�� t��ru� ��u�t�auc�a�at� �� . ``�r��°��°��rt�� i��.i�<°�1 �1��il��a�ll�tv F��n°��i�t�� 1��11 ��r� tl�a� r�� t %��t��. �.u� ��;tii�c�� )��i�. ��"r��rM�Y��a��, :�� i�� r�� °�� i�s��,� � �u�,��rnt�T �� n�`a�r�r��r�c� �.s��rn�;� ��ai��ru,��t t� t�ri� r�.��ee��a�k. ��;��," s�a�ll �� t� ��uka�t��tn��:v �� t�a��n �� ,��'+9�� v"�II a�s�aee� �� P��a� ��t �� i,�� c��e��l�° +�� i��zcli�-��f�:v c�a�rt�r��ll� ��:� �etz��a� �`��- ��an�� ca�" �fl�� "��i�i��n ��' �:.�.ff`�'ili��'' �rk�r�� tl�� k��n��"c��x��r��c� .�°��tia��un��:;� ��-�a�Fi�� t��t��u�� t��u it� .'�.��.��<�t�� 1�� . tzni��u�� t e�r��°tl� �a� �fi �a��a��t �� illi�� t�c� (�� ci ��i��i`�i�� t1�� T��z�al�i C..��•�� '�•�c�i� ��f�i��, �t• �ii� ns ut��+��i;�� t��l�ll� t� �� nri"��°��c� ��b�� r��ii�,i�l�. ��d� � - �' II:� II: II:::��...II...II: II:::� "HE" shall mean "hour ending." "Ima�ed A�reement" shall have the meaning set forth in Section 28(p). "Incentives" shall mean production tax credits based on energy production from any portion of the Facility and any other tax benefits or other financial incentives, whether federal, state or other, resulting from construction, ownership, operation, maintenance or other use of the Facility, including Production Tax Credit, the Investment Tax Credit and similar tax credits. "Indemnified Partv" shall have the meaning set forth in Section 14(d). "Indemnifvin� Party" shall have the meaning set forth in Section 14(d). "Inde�endent Svstem O�erator" shall mean The Electrical Reliability Council of Texas, or successor organization in function. "Inde�endent Svstem O�erator Protocols" shall mean the documents adopted by the Independent System Operator, including any exhibits or attachments referenced therein, that contain the scheduling, operating, planning, reliability and settlement policies, rules, guidelines (including the guidelines approved by the Independent System Operator describing the reliability standards for the Independent System Operator), procedures, standards and criteria of the Independent System Operator. "Initial Ne�otiation End Date" shall have the meaning given in Section 26(a). "Installed Nameplate Capacity" shall mean the aggregate Capacity of the Generation Equipment installed and commissioned at the Facility, including any Supplemental Blocks, if applicable, expressed in MW of alternating current. "Interconnection Facilities" shall mean the equipment to be installed by the Connecting Utility at the Interconnection Point to interconnect the Facility with the electrical transmission system of the Connecting Utility. "Interconnection Point" shall mean the physical point at which the Facility interconnects to the electrical transmission system of the Connecting Utility as recognized by the Independent System Operator, as further described in ANNEX II. "Interest Rate" shall have the meaning set forth in Section ll(d). "International Or�anization for Standardization" shall mean the International Organization for Standardization, or its successor in function. "Interval Availabilitv" shall mean, for each Calculation Interval, the percentage of the Generation Equipment ready and available to generate Energy, as measured by the SCADA System. "Interval QuantitX" shall mean, for each Calculation Interval during the Settlement Term, the Buyer's Pro-Rata Fraction of the net electric Energy generation from the Facility delivered at Annex I - 9 II:� II: II...��...II...II: II...� the Interconnection Point during such Calculation Interval (expressed in MWh), as determined according to Section 10(d) and adjusted according to Section 6; provided, that if (i) Commercial Operation has been achieved with an Installed Nameplate Capacity less than the Anticipated Nameplate Capacity and (ii) Seller is making efforts to increase the Installed Nameplate Capacity of the Facility, then from the Commencement Date until the issuance of the Notice of Supplemental Commercial Operation, the Interval Quantity shall be, for each Calculation Interval during such period, the Buyer's Anticipated Pro-Rata Fraction of the net electric Energy generation from the Facility delivered at the Interconnection Point during such Calculation Interval (expressed in MWh), as determined according to Section 10(d) and adjusted according to Section 6. For the avoidance of doubt, the Interval Quantity could be zero (0) MWh or reduced to the extent that the Facility (or any portion thereof) is unavailable or curtailed for any reason. "Investment Grade Credit Ratin�" shall mean a Credit Rating of `BBB" or better from S&P or Fitch or a Credit Rating of `Baa3" or better from Moody's. "Investment Tax Credit" shall mean the investment tax credit applicable to electricity produced from certain renewable resources pursuant to (a) 26 U.S.C. §48 and (b) any other U.S. federal tax credits based on Energy investment. "Letter of Credit" shall mean an irrevocable standby letter of credit substantially in the form of ANNEX IX issued by a Creditworthy Bank and with whatever changes to such form as may be requested by such issuing bank. "Liabilitv Limitations" shall mean the indemnities and other releases, waivers, allocations and disclaimers of, and limitations on, liabilities or remedies set forth in this Agreement. "Locational Mar�inal Price" shall mean, for any Calculation Interval, the location specific Real-Time Energy Market price as defined and published by the Independent System Operator, expressed in $/MWh, which, for the avoidance of doubt, may be positive or negative. "Mana�er" shall have the meaning given in Section 26(a). "Market Disruption Event" shall mean any of the following events: (a) the disappearance of or discontinuance of the announcement or publishing of the Market Price, (b) a material change in the formula for or the method of determining the Market Price; (c) a material change in the content or composition of the Market Price, excluding material changes resulting from changes in the composition of generators participating within the service territory controlled by the Independent System Operator; or (d) if either the Settlement Point, or any successor thereto, ceases to exist in the balancing authority area of the Independent System Operator. "Market Price" shall mean, for any Calculation Interval, the Locational Marginal Price at the Settlement Point in the Real-Time Energy Market as determined by the Independent System Operator. � Annex I - 10 II:� II: II...��...II...II: II...� "Mechanical Availability Percenta�e" shall mean a fraction (expressed as a percentage) with respect to any Contract Year the numerator of which is the sum of the Operational Intervals during such Contract Year for all Blocks that have been Commissioned and the denominator of which is the sum of the Calculation Intervals during such Contract Year for all Blocks that have been Commissioned. "Minimum Market Price" shall mean zero (0) dollars. "Modern-Era Retros�ective Analvsis Dataset" shall mean the Modern-Era Retrospective Analysis Dataset published by the National Aeronautics and Space Administration's Goddard Earth Sciences Data and Information Services Center, or its successor in function. "Monthlv Settlement Period" shall mean each calendar month during the Settlement Term, commencing HE 0100 PT on the first calendar day of such calendar month and ending HE 2400 PT on the last calendar day of such calendar month; provided, however, that, (i) for the first Monthly Settlement Period, the Monthly Settlement Period shall begin HE 0100 PT on the first day of the Settlement Term and shall end HE 2400 PT on the last calendar day of such calendar month, and (ii) if this Agreement is terminated prior to its expiration, the Monthly Settlement Period in which such termination occurs will begin HE 0100 PT on the first calendar day of the calendar month in which such termination occurs and will end on the termination date. "Moodv's" shall mean Moody's Investors Service, Inc. "MW" shall mean megawatt. "MWh" shall mean megawatt-hour. "Name�late Ca�acitX" shall mean the manufacturer's rated capacity of the Generation Equipment to generate electricity as measured in MW of alternating current. "NERC" shall mean the North American Electric Reliability Corporation or successor organization in function. "Non-Defaultin _� PartX" shall have the meaning set forth in Section 15. "Notice of Commercial Operation" shall mean written notice provided by Seller to Buyer stating that the conditions in clauses (a), (b) and (c) of the definition of "Commercial Operation" have been satisfied or waived by the Parties and specifying the then-current Installed Nameplate Capacity of the Facility, along with substantiating documentation. "Notice of Su�lemental Commercial Operation" shall mean written notice provided by Seller to Buyer stating that the conditions in clauses (a), (b) and (c) of the definition of "Supplemental Commercial Operation" have been satisfied and the then-current Installed Nameplate Capacity of the (i) Supplemental Blocks and (ii) Facility, along with substantiating documentation. "Operational Intervals" shall mean, for each Block that has been Commissioned and for each applicable Contract Year, the sum of all Calculation Intervals (or portions thereo� during the Annex I - 11 II:� II: II...��...II...II: II...� prior Contract Year in which such Block was capable of producing power as measured by the SCADA System, including any such Calculation Interval (or portions thereof) during which a Block was capable of producing power but did not produce power due to (i) a Force Maj eure event; (ii) a System Emergency, (iii) a System Curtailment; (iv) a Seller-initiated curtailment during periods of time when the Transmission System is unavailable or operating outside the defined voltage, frequency limits, or other operational parameters of the Generation Equipment; (v) a breach by Buyer of any of its obligations under this Agreement; or (vi) any period during which the Interval Quantity is deemed equal to zero (0) MWh pursuant to Section 6. "Partv" and "Parties" shall have the respective meanings set forth in the introductory paragraph. "Performance Assurance" shall mean either Seller's Performance Assurance or Buyer's Performance Assurance, as applicable. "Performance Assurance Beneficiarv" shall mean either Seller or Buyer, which is the beneficiary of a Performance Assurance, as applicable. "Performance Assurance Guarantor" shall mean (a) in respect of any Performance Assurance in the form of a Guaranty, the Guarantor issuing such Guaranty, (b) in respect of any Performance Assurance in the form of a Letter of Credit, the bank issuing such Letter of Credit and (c) in respect of any Performance Assurance in the form of Cash Collateral, the bank holding such Cash Collateral. "Performance Assurance Release Date" shall mean either the Buyer's Performance Assurance Release Date or the Seller's Performance Assurance Release Date, as applicable. "Performance Bond" means a performance bond issued by a U.S. insurance company that maintains an insurance rating of at least "A+" from A.M Best and an adjusted policy holder surplus of Seven Hundred Fifty Million Dollars ($750,000,000) or greater. "Permanent Meteorolo�ical Station(s)" shall mean the Facility's permanent meteorological station(s) identified in ANNEX II, installed and maintained in accordance with the applicable standards set forth by the International Organization for Standardization, and utilized to measure the Available Resource. Annex I - 12 II:� II: II...��...II...II: II...� "Person" shall mean an individual, corporation, limited liability company, voluntary association, joint stock company, business trust, partnership, Governmental Authority or other entity. "Primarv Economic Terms" shall have the meaning set forth in 17 CF.R Section 45.1. "Production Tax Credit" shall mean the production tax credit applicable to electricity produced from certain renewable resources pursuant to (a) 26 U.S.C. §45 and (b) any other U.S. federal tax credits based on Energy production. "Prudent Electrical Practices" shall mean those practices, methods and acts that would be implemented and followed by prudent operators of renewable electric energy generating facilities, similar to the Facility, during the relevant time period, which practices, methods and acts, in the exercise of prudent and responsible professional judgment in the light of the facts known or that shall reasonably have been known at the time the decision was made, would reasonably have been expected to accomplish the desired result consistent with manufacturers' warranties and recommendations, contractual obligations, the requirements or guidance of the Connecting Utility, the state public utility commission or equivalent regulatory entity, the Independent System Operator and each other applicable Governmental Authority, Applicable Laws, the requirements of insurers, good business practices, reliability, safety and economy. Prudent Electrical Practices shall not be limited to the optimum practice, method, technique or standard to the exclusion of all others, but rather shall be a range of reasonable practices, methods, techniques or standards. Seller acknowledges that the use of Prudent Electrical Practices by Seller does not exempt Seller from any obligations set forth in this Agreement. "PT" shall mean the prevailing time at the Facility as observed by the Independent System Operator. "PUCT" shall mean the Public Utility Commission of Texas. "Qualified Pro�ram" shall mean a renewable energy program for which Seller is required to qualify the Facility according to Section 8(c). "Real-Time Ener�v Market" shall have the meaning ascribed to it by the Independent System Operator. "Referral Date" shall have the meaning given in Section 26(a). "Related Persons" shall mean, in respect of a referenced Person, (a) its owners (direct and indirect) and Affiliates, (b) its subcontractors and (c) the respective directors, officers, employees and agents of the referenced Person and the Persons described in clauses (a) and (b) of this definition. "Renewable Ener�v Credits" shall have the meaning set forth in, and certifiable under, the Renewable Energy Standard. "Renewable Ener�v Standard" shall mean Green-e Energy National Standard Version 2.3 and the Green-e Energy Code of Conduct and Customer Disclosure Requirements. Annex I - 13 II:� II: II...��...II...II: II...� "S&P" shall mean Standard & Poor's Financial Services LLC. "SCADA Svstem" shall mean Seller's Supervisory Control and Data Acquisition system in respect of the Facility. "Seller" shall have the meaning set forth in the introductory paragraph. "Seller Due Date" shall mean, with respect to any invoice issued by Seller pursuant to Section ll(b)(i), the forty-fifth (45th) day after the end of the applicable Monthly Settlement Period. "Seller's Pre-COD Performance Assurance" shall have the meaning set forth in Section 12. "Seller's Performance Assurance" shall mean either Seller's Pre-COD Performance Assurance or Seller's Post-COD Performance Assurance. "Seller's Post-COD Performance Assurance" shall have the meaning set forth in Section 12. "Seller's Post-COD Performance Assurance Release Date" shall have the meaning set forth in Section 12. "Settlement Amount" shall have the meaning set forth in Section ll(a)(ii). "Settlement Point" shall mean ERCOT North 345 KV Hub. Annex I - 14 II:� II: II...��...II...II: II...� "Settlement Term" shall mean 15 years, beginning at HE 0100 PT on the Commencement Date. "Su�lemental Commercial O�eration" shall mean the date following the Commercial Operation Date when all of the following conditions have been satisfied or waived by the Parties: (a) Blocks with an aggregate Nameplate Capacity have entered into Commercial Operation which, when combined with the aggregate Nameplate Capacity of the Blocks that have already achieved Commercial Operation as set forth in the Notice of Commercial Operation, are equal to or less than the Anticipated Nameplate Capacity and (b) the Facility systems (other than the Blocks) have been completed in all material respects and are capable of delivering Energy to the Interconnection Point in accordance with the provisions of this Agreement, (c) Seller has received all Authorizations required to deliver the Interval Quantity, including the Supplemental Blocks, to the Settlement Point and to perform its obligations under this Agreement; and (d) the Seller has issued the Notice of Supplemental Commercial Operation. "Su�lemental Blocks" shall mean any Blocks that achieve Supplemental Commercial Operation. "Suspension Date" shall have the meaning set forth in Section 16(b). "Swa� Data Re�ositorX" shall have the meaning set forth in 17 C.F.R Section 1.3 (qqqq). "Svstem Curtailment" shall mean a required curtailment of all or any part of the deliveries of the Interval Quantity by the Independent System Operator or Connecting Utility not due to actions or omissions of Seller or an Affiliate of Seller. "Svstem Emer_�encX" shall mean any circumstance or combination of circumstances or any condition of the Facility, the Interconnection Facilities, the Transmission System, or the transmission system of other electric utilities, in which continued operation of the Facility (a) is reasonably likely to endanger life or property and necessitates immediate action to avert injury to persons or serious damage to property, or (b) is reasonably likely to adversely affect, degrade or impair Transmission System reliability or transmission system reliability of the transmission system of other electric utilities. "Term" shall have the meaning set forth in Section 2. "Threshold Credit Ratin�" shall mean a Credit Rating of `BBB" or better from S&P or Fitch or a Credit Rating of `Baa2" or better from Moody's. "TRECP" shall mean the Texas Renewable Energy Credit Program as administered by ERCOT or successor organization in function. "Transmission Svstem" means the electric transmission system to which the Facility is connected. IL INTERPRETATION In the Agreement, unless otherwise stated: Annex I - 15 II:� II: II...��...II...II: II...� (A) Any reference to an agreement or document (including those set forth electronically on an internet web site) or a portion or provision thereof shall be construed as a reference to the same as it has been, or may be, amended, supplemented or otherwise modified and in effect from time to time; (B) Any reference to Applicable Laws and to terms defined in, and other provisions of, Applicable Laws (including those set forth electronically on an internet web site) and to Renewable Energy Standards shall be references to the same (or a successor to the same) as it has been, or may be, amended, supplemented or otherwise modified and in effect from time to time during the Term; (C) Any reference to a Person shall include that Person's permitted successors and assigns; (D) Any reference to a Governmental Authority (including the Independent System Operator) shall be construed as including a reference to any successor Governmental Authority, but only to the extent that successor Governmental Authority succeeds to the original Governmental Authority's functions and capacities during the Term; (E) Any reference to a Section or Annex shall be a reference to a Section of, or Annex to, this Agreement; (F) The words "herein," "hereafter," "hereto," "hereunder" and similar words shall be construed as a reference to this Agreement as a whole and not to any particular portion or provision of this Agreement; (G) Words in the singular may be interpreted as referring to the plural and vice versa, and words denoting natural persons may be interpreted as referring to other types of Persons and vice versa; (H) Whenever this Agreement refers to a number of days, such number shall refer to the number of calendar days unless Business Days are specified. A requirement that a payment be made (or an obligation be performed or a requirement be satisfied) on or by a day that is not a Business Day shall be construed as a requirement that the payment be made (or obligation be performed or requirement be satisfied) on or by the next following Business Day; provided that any calculation required to be made as of a certain day shall be made as of such day, regardless of whether such day is a Business Day; and (I) Whenever the term "include," "includes" or "including" is used herein, such term shall be deemed to be followed by the words "without limitation" and construed as being illustrative and inclusive of but not exhaustive or limited to the items that follow. Annex I - 16 II:� II: II...��...II...II: II...� :��:� �I - 1 II:� II: II:::��...II...II: II:::� Annex III - 1 II:� II: II...��...II...II: II...� ANNEX IV — INTENTIONALLY OMITTED Annex N - 1 Annex V - 1 II:� II: II...��...II...II: II...� �'I��i �'�i►'� � li��i1�:�'Ni�i� � .� �C#�.� I ��'�►'� � �1 � i�"9 � 0 � �� V'I - l. II:� II: II:::��...II...II: II:::� ANNEX VII — NOTICE ADDRESSES All notices, demands, or other communications that either Party may give to the other under or in connection with this Agreement (other than invoices and related communications) shall be made in writing and sent to the following (unless another address has been notified by the relevant Party to the other Party as its address for notice according to Section 18): If to Buyer: If to Seller: Denton Municipal Electric Samson Solar Energy LLC 1659 Spencer Rd. Denton, TX 76205 Attention: General Manager TeL (940) 349-8487 Fax: (940) 349-7334 with a copy to: with a copy to: City Legal Dept. Samson Solar Energy LLC 21 S E. McKinney St. Denton, TX 76201 Attention: City Attorney TeL (940) 349-8333 Fax: 940 382-7923 All invoices and related communications shall be sent to the following (unless another address has been notified by the relevant Party to the other Party as its address for notice according to Section 18): If to Buyer: If to Seller: Denton Municipal Electric Samson Solar Energy LLC 1659 Spencer Rd. Denton, TX 76205 Attention: Energy Settlements Email: Mike. Wilson@cityofdenton.com with a copy to: with a copy to: [BuyerJ Samson Solar Energy LLC [insert addressJ [insert addressJ Attention: [insert name or titleJ EmaiL [insert emailJ Wire Transfer: Wire Transfer: Annex VII - 1 II:� II: II...��...II...II: II...� REF: [insertJ REF: [insertJ (Seller to provide WIRE/ACH information prior to Commercial Operation Date) Annex VII - 2 ANNEX VIII — FORM OF PARENT GUARANTY Annex VIII - 1 - - Annex VIII - 2 II:� II: II...��...II...II: II...� - � � � � � - - � - � � - - - � - � � � - - - - � � - - - - � � - � �Insert bracketed language only if non-U.S. guarantor. Annex VIII - 3 II:� II: II:::��...II...II: II:::� — — � � ANNEX IX — FORM OF LETTER OF CREDIT IIZREVOCABLE STANDBY LETTER OF CREDIT NO. [#] EXPIIZATION DATE: [DATE] Annex IX - 1 Annex IX - 2 II:� II: II...��...II...II: II...� � Annex IX - 3 II:� II: II...��...II...II: II...� Exhibit A to Form Letter of Credit Form of Sight Draft IIZREVOCABLE STANDBY LETTER OF CREDIT NO. [#] Date [DATE] Sight Draft Pay to the order of [BUYER/SELLER] the amount of $[AMOLTNT] drawn under [ISSUING BANK] Irrevocable Standby Letter of Credit Number [#] dated [DATE]. By: _ Name: Title: cc: Exhibit A-1 II:� II: II:::��...II...II: II:::� ANNEX X— AVAILABLE REAL-TIME DATA Seller shall make following data available to Buyer in accordance with Section 19(b). DATA FIELD MINIMUM FREQUENCY MAXIMUM TIME DELAY Available Resource Fifteen Minute Fifteen Minutes Interval Quantity Fifteen Minute Fifteen Minutes Annex X - 1 II:� II: II...��...II...II: II...� ANNEX XI SCHEDULING PROCEDURES l. Schedulin� Procedures. (a) Seller shall deliver to Buyer's QSE a non-binding hourly schedule of expected energy output for the next operating day no later than two (2) hours prior to the close of the ERCOT Day-Ahead Market. (b) Seller shall schedule, or cause to be scheduled, via an energy trade the amounts of expected energy output set forth in (a) with ERCOT in the timeframes required under the ERCOT Protocols. All day-ahead energy schedules submitted by Seller to Buyer's QSE and ERCOT will be equivalent to the PhotoVoltaic Generation Resource Production Potential ("PVGPP") or any successor value used by ERCOT in the Capacity Shortfall Ratio Share calculation for solar generation. (c) Seller shall deliver to Buyer's QSE the Buyer's share of actual fifteen minute metered output no later than 10:00 am CPT on the day after the operating day or two (2) hours after receiving the metered output data file and shall update the energy trade with ERCOT pursuant to timeframes set forth in the ERCOT Protocols; provided that (a) Seller shall have the right to make schedule changes to the extent required by Force Majeure or System Emergency or curtailment under this Agreement (b) Seller shall notify Buyer's QSE of such real-time schedule changes as soon as feasible; and (c) Buyer shall cause its QSE to adjust the hourly scheduled energy amounts consistent with such real-time changes. To the extent that Seller fails to submit an Energy Trade to ERCOT pursuant to the timeframes set forth in the ERCOT Protocols and the Locational Marginal Price at the Settlement Point is greater than the Fixed Price, Seller shall credit to Buyer the difference between the Locational Marginal Price at the Settlement Point and the Fixed Price. To the extent that Buyer's QSE fails to confirm the Energy Trade value submitted by Seller to ERCOT and the Locational Marginal Price at the Settlement Point is less than the Fixed Price, Buyer shall pay Seller the difference between the Locational Marginal Price at the Settlement Point and the Fixed Price. (d) Consistent with ERCOT Protocols, Buyer shall cause its QSE to schedule and confirm with ERCOT all schedules, updates, and revisions to the schedules delivered by Seller in accordance with (b) and (c) above. (f) All schedule information delivered by Seller to Buyer's QSE must be delivered in electronic format as mutually agreed by the Parties. In the event an agreeable electronic format is not available, telephone, fax, or another mutually agreeable method may be utilized. In such event, electronic format will be resumed as soon as practicable. After an alternative method of communication has been utilized, Seller shall deliver those schedules that were communicated to Buyer by such alternative method in an electronic format within forty-eight (48) hours of the resumption of electronic communications. 2. Chan�es to Schedulin� Procedures. If the Texas Regional Entity, NERC, or the Transmission Provider amends protocols for hourly scheduling after the Effective Date, the Parties shall mutually prepare any changes to the Scheduling Procedures set forth in Section 1 of this Annex XI necessary to adhere to such amended protocols. 3. Penalties. Penalties or similar charges assessed by the Transmission Provider and caused by a Party's noncompliance with the scheduling obligations set forth in this Annex XI shall be the responsibility of the Party whose action or inaction caused the penalty. 4. Capitalized Terms. Any capitalized term used in this Annex XI and not defined in this Agreement shall be given the meaning set forth in the ERCOT Protocols.