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2500 - Solar City Corp - Solar Power Purchase for Garvey and Angelus Senior Housing""i�SolarCity Solar Power Purchase Agreement (Commercial OR/CA -JR MASH) This Solar Power Purchase Agreement (this "Agreement ") is entered into by the parties listed below (each a "Party" and collectively the "Parties ") as of the date signed by Seller below (the "Effective Date "). Purchaser: Pricing Attachment Seller: Name Rosemead Housing Development Name SolarCity Corporation and Corporation and 393 Vintage Park Drive, Suite 140 Address 8838 E Valley Blvd. Address Foster City, CA 94404 Rosemead CA 91770 License Area Attention: Lease /License Administrator Attention: Gary Taylor, President Exhibit 6 Memorandum of License Phone 626 -569 -2100 Phone (650) 638 -1028 Fax 626 - 307 -9218 Fax (650) 638 -1029 E -mail gtaylor(a),cityofrosemead.org E -mail LeaseAdministrator @solarcity.com Purchaser ® owns the Facility (check one) ❑ leases the Facility This Agreement sets forth the terms and conditions of the purchase and sale of solar generated electric energy from the solar panel system described in Exhibit 2 (the "System ") and installed at the Purchaser's facility described in Exhibit 3 (the "Facility'). The exhibits listed below are incorporated by reference and made part of this Agreement. Exhibit I Pricing Attachment Exhibit 2 System Description LEGAL APPROVED Exhibit 3 Purchaser's Facility Exhibit 4 Delivery Point Exhibit 5 License Area INITIAL Exhibit 6 Memorandum of License Exhibit 7 General Terms and Conditions (Revised July 21, 2009) DATE I I' IZ I 0 ftowft Purchaser: / �� // Signature: 'I t �✓ Printed Name: Gary Taylor Title: President Date: A bildolo SolarCity Co 77, Signature: Printed Name: DAVID W H Title: CFO Date: !/'1,15'10 Exhibit 1 Pricing Attachment 1. Term: Twenty (20) years, beginning on the Commercial Operation Date. 2. Additional Terms: Up to Two (2) Additional Tema of Five (5) years each 3. Environmental Incentives and Environment Attributes Accrue to Seller 4. Contract Price: PURCHASEPRICE YEAR CONTRACT PRICE PER KWH 1 $0.0500 2 $0.0500 3 $0.0500 4 $0.0500 5 $0.0500 6 $0.0500 7 $0.0500 8 $0.0500 9 $0.0500 10 $0.0500 11 $0.0500 12 $0.0500 13 $0.0500 14 $0.0500 15 $0.0500 16 $0.0500 17 $0.0500 18 $0.0500 19 $0.0500 20 $0.0500 5. Condition Satisfaction Date: March 31, 2011 6. Anticipated Commercial Operation Date: August 31, 2011 7. Outside Commercial Operation Date: September 30, 2011 8. Purchase Option Price YEAR PURCHASEPRICE 5 $36,966 10 $30,204 20 Fair Market Value 9. Termination Value: YEAR TERVIINATION VALUE 1 $38,145 2 $36,869 3 $35,545 4 $34,171 Solar Power Purchase Agreement v. 20091015 (]R MASH) 0 2009 SolarCity. All Rights Reserved 5 $32,743 6 $31,260 7 $29,719 8 $28,116 9 $26,448 to $24,713 11 $22,905 12 $21,023 13 $19,062 14 $17,017 15 $14,886 16 $12,663 17 $10,343 18 $7,922 19 $5,395 20 $0 In addition to the amounts payable by Purchaser stated above Purchaser shall also pay to Seller an amount equal to any recapture of any Environmental Incentives and Tax Credits. 10. Reserved. Solar Power Purchase Agreement v. 20091015 (JR MASH) ® 2009 SolarCity. All Rights Reserved Exhibit 2 i System Description 1. System Location: 9100 Garvey Ave Rosemead, CA 91770 2. System Size (DC kW): 45.080 3. Expected First Year Energy Production: 63,665 4. Scope: * System size (kW): 45.08 * 1st year kWh production: 63,665 5. Expected Module(s): QUANTITY MAKE MODEL STC WATTS PTC WATTS 196 Yingli Green Energy YL230P -29b 230.0 W 206.6 W '.. 6. Expected Inverter(s): QUANTITY MAKE MODEL RATED POWER EFFICIENCY I SatCon Technology PVS -50 (240 V) 50.00 kW 95.5% 7. Expected Structure: Roof Mount & Roof Mount 8. Includes: Tum -key installation SolarCity Limited Warranty 9. Excludes: Structure or electrical upgrades and trenching Solar Power Purchase Agreement v.20091002 (JR MASH) Exhibit 3 Purchaser's Facility A PARCEL OF LAND LOCATED IN THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, WITH A SITUS ADDRESS OF 9100 GARVEY AVE, ROSEMEAD CA 91770 -5300 CURRENTLY OWNED BY REDEVELOPMENT AGENCY OF ROSEMEAD CITY HAVING A TAX ASSESSOR NUMBER OF 5282 -028- 911 AND BEING THE SAME PROPERTY MORE FULLY DESCRIBED AS TR =830 THAT POR IN TRA 3645 OF LOT 3 AND DESCRIBED IN DOCUMENT NUMBER 1321428 DATED 08/1989 AND RECORDED 08/17/1989. Solar Power Purchase Agreement v.20091002 (JR MASH) MrAffifil Exhibit 5 License Area Solar Power Purchase Agreement v.20091002 Exhibit 6 Memorandum of License RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: SolarCity Corporation 393 Vintage Park Drive, Suite 140 Foster City, CA 94404 Attention: Lease/License Administrator MEMORANDUM OF LICENSE THIS MEMORANDUM OF LICENSE is made and entered into this "day of powrKbex , 2010, (the "Effective Date ") by and between Rosemead Housing Development Corporation, whose address is 8838 Valley Blvd Rosemead, CA 91770 ( "Licensor "), and SOLARCITY CORPORATION, whose address is 393 Vintage Park Drive, Suite 140, Foster City, CA 94404 ( "Licensee "). A. Licensor is the owner of certain real property ( "Premises "), located in the County of LOS ANGELES, State of California, described in Exhibit A attached to and incorporated herein by reference. B. Licensor and Licensee have entered into a Solar Power Purchase Agreement dated on or about the Effective Date (the "Agreement') under which Licensee is selling energy generated by a photovoltaic electric generating system (the "System ") to Licensor. The Agreement is for a term of Twenty (20) years, beginning on the Effective Date and ending on the Twenty (20) year anniversary of the Commercial Operation Date with an option to extend the Agreement for up to Two (2) extended terms of Five (5) years each. Pursuant to the Agreement, Licensor has granted Licensee an irrevocable, non - exclusive license ( "License ") over the Premises for the purposes and on the terms set forth in the Agreement. Licensor and Licensee agree as follows: 1. Licensor hereby grants to Licensee the License over the Premises on and subject to the terms and conditions set forth in the Agreement which is incorporated herein by reference. 2. The term of the License begins on the Effective Date and continues until one hundred and twenty (120) days after the termination of the Agreement. 3. This Memorandum of License shall not be deemed to modify, alter or amend in any way the provisions of the License or the Agreement. In the event of any conflict between the terms of the License and/or the Agreement and this Memorandum, the terms of the License and/or the Agreement, as applicable, shall control. The undersigned have executed this Memorandum of License as of the date first written above. LICENSOR LICENSEE Rosemead Housing Development Corporation SOLARCITY CORPORATION By: By Name or : Gar T Name: DAV t p �K tTt Title: Preside Title: CFo [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK ACKNOWLEDGEMENT PAGE FOLLOWS] Solar Power Purchase Agreement v.20091015 STATE OF CALIFORNIA) SA N "'M(Z5 ) ss. COUNTY OF L9� ) On 11 t k5 (1 0 , before me,4 L. k Notary Public, personally appeared O4y.I LC. � ` � , who proved to me on the basis of satisfactory evidence to be the person(61whose names) is/are subscribed to the within instrument and acknowledged to me that he/sh&tm9 executed the same in his/her/ h authorized capacity(ieo, and that by hisfkrhd r signature(s) on the instrument the persop(S), or the entity upon behalf of which the personWacted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Califomiathat the foregoing paragraph is true and correct. WITNESS my hand and official seal. - w"`�""` """'"`"` N �` `u „`'._ S.L. F NNS7 RAKER 0 COMW 01690335 xl 6 NCTARY PUSLiC CALIFORNIA Cn 1 / / U SAN MATEC COUNTY N ttLt�� �' „ My Comm_ 6c.,ires May 21.2014 Signature of Notary Public STATE OF CALIFORNIA) COUNTY OF LOS ANGELES ) ss. On iVOJe_ rr♦'w� 11. )n(Z' before me, �(Org t� l MAi , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the persork*whose name(e) to khe witl' t instrument and acknowledged to me that he/sUa4ky executed the same in his/heAheir authorized capacity0es), and that by hivlofitheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person( acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public GLORIA MOLLEDA �COmmisalon+y 179 'o Notary Public - California Los Angeles County MY Comm. Ex ires Apr 2, 2012 Solar Power Purchase Agreement x.20091015 Exhibit A To Memorandum of License Legal Description of Premises That certain real property located in the County of LOS ANGELES, State of California described as follows: A PARCEL OF LAND LOCATED IN THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, WITH A SITUS ADDRESS OF 9100 GARVEY AVE, ROSEMEAD CA 91770 -5300 CURRENTLY OWNED BY REDEVELOPMENT AGENCY OF ROSEMEAD CITY HAVING A TAX ASSESSOR NUMBER OF 5282 -028- 911 AND BEING THE SAME PROPERTY MORE FULLY DESCRIBED AS TR =830 THAT POR IN TRA 3645 OF LOT 3 AND DESCRIBED IN DOCUMENT NUMBER 1321428 DATED 08/1989 AND RECORDED 08/1711989. Solar Power Purchase Agreement v.20091015 Exhibit 7 Solar Power Purchase Agreement General Terms and Conditions Revised July 21, 2009 (JR Mash Version) 1. Definitions and Interuretation Unless otherwise defined or required by the context in which any term appears: (a) the singular includes the plural and vice versa; (b) the words "herein," "hereof' and "hereunder" refer to this Agreement as a whole and not to any particular section or subsection of this Agreement; (c) references to any agreement, document or instrument mean such agreement, document or instrument as amended, modified, supplemented or replaced from time to time; and (d) the words "include," "includes" and "including" mean include, includes and including "without limitation." The captions or headings in this Agreement are strictly for convenience and shall not be considered in interpreting this Agreement. 2. Purchase and Sale of Electricity Purchaser shall purchase from Seller, and Seller shall sell to Purchaser, all of the electric energy generated by the System during the Initial Term and any Additional Term (as defined in Exhibit I, and collectively the "Term "). Electric energy generated by the System will be delivered to Purchaser at the delivery point identified on Exhibit 4 (the "Delivery Point "). Purchaser shall take title to the electric energy generated by the System at the Delivery Point, and risk of loss will pass from Seller to Purchaser at the Delivery Point. Purchaser may purchase electric energy for the Facility from other sources if the Purchaser's electric requirements at the Facility exceed the output of the System. 3. Term and Termination a. Initial Term The initial term ( "Initial Term ") of this Agreement shall commence on the Commercial Operation Date (as defined below) and continue for the length of time specified in Exhibit 1, unless earlier terminated as provided for in this Agreement. The "Commercial Operation Date" is the date Seiler gives Purchaser written notice that the System is mechanically complete and capable of providing electric energy to the Delivery Point. Upon Purchaser's request, Seller will give Purchaser copies of certificates of completion or similar documentation from Seller's contractor and the interconnection or similar agreement with the Utility. This Agreement is effective as of the Effective Date and Purchaser's failure to enable Seller to provide the electric energy by preventing it from installing the System or otherwise not performing shall not excuse Purchaser's obligations to snake payments that otherwise would have been due under this Agreement. b. Additional Terms If Purchaser has not exercised its option to purchase the System by the end of the Initial Teri, either Party may give the other Party written notice of its desire to extend this Agreement on the terms and conditions set forth herein for the number and length of additional periods specified in Exhibit I (each an "Additional Term "). Such notice shall be given, if at all, not more than one hundred twenty (120) and not less than sixty (60) days before the last day of the Initial Term or the then current Additional Term, as applicable. The Party receiving the notice requesting an Additional Term shall respond positively or negatively to that request in writing within thirty (30) days after receipt of the request. Failure to respond within such thirty (30) day period shall be deemed a rejection of the offer for an Additional Term. If both Parties agree to an Additional Term, the Additional Term shall begin immediately upon the conclusion of the then current term or Additional Term on the same terms and conditions as set forth in this Agreement. If the Party receiving the request for an Additional Term rejects or is deemed to reject the first Party's offer, this Agreement shall terminate at the end of the Initial Term (if the same has not been extended) or the then current Additional Term. 4. Billing and Payment a. Monthly Charges Purchaser shall pay Seller monthly for the electric energy generated by the System and delivered to the Delivery Point at the $/kWh rate shown in Exhibit I (the "Contract Price "). The monthly payment for such energy will be equal to the applicable $/kWh rate multiplied by the number of kWh of energy generated during the applicable month, as measured by the System meter. b. Monthly Invoices Seller shall invoice Purchaser monthly. Such monthly invoices shall state (i) the amount of electric energy produced by the System and delivered to the Delivery Point, (ii) the rates applicable to, and charges incurred by, Purchaser under this Agreement and (iii) the total amount due from Purchaser. Solar Power Purchase Agreement v.20091015 C. Utility Invoices Purchaser shall authorize the Utility to send to Seller duplicates of any bills sent to Purchaser. If Utility does not permit duplicate bills to be sent to Seller, Purchaser shall, promptly upon receipt of each bill, make a photocopy of each bill and mail the copy to Seller. Purchaser shall pay all charges assessed by the Utility to the Facility. e. Taxes. Purchaser shall either pay or reimburse Seller for any and all taxes assessed on the generation, sale, delivery or consumption of electric energy produced by the System or the interconnection of the System to the Utility's electric distribution system, including property taxes on the System; provided, however Purchaser will not be required to pay or reimburse Seller for any taxes during periods when Seller fails to deliver electric energy to Purchaser for reasons other than Force Majeure. For purposes of this Section 4(c) "Taxes" means any federal, state and local ad valorem, property, occupation, generation, privilege, sales, use, consumption, excise, transaction, and other taxes, regulatory fees, surcharges or other similar charges but shall not include any income taxes or similar taxes imposed on net revenues imposed on Seller due to the sale of energy under this Agreement, which shall be Seller's responsibility. . f. Payment Terms All amounts due under this Agreement shall be due and payable net twenty (20) days from receipt of invoice. Any undisputed portion of the invoice amount not paid within the twenty (20) day period shall accrue interest at the annual rate of two and one -half percent (2.5 %) over the Prime Rate (but not to exceed the maximum rate permitted by law). 5. Environmental Attributes and Environmental Incentives Unless otherwise specified on Exhibit 1, Seller is the owner of all Environmental Attributes and Environmental Incentives and is entitled to the benefit of all Tax Credits, and Purchaser's purchase of electricity under this Agreement does not include Environmental Attributes, Environmental Incentives or the right to Tax Credits or any other attributes of ownership and operation of the System, all of which shall be retained by Seller. Purchaser shall cooperate with Seller in obtaining, securing and transferring all Environmental Attributes and Environmental Incentives and the benefit of all Tax Credits, including by using the electric energy generated by the System in a manner necessary to qualify for such available Environmental Attributes, Environmental Incentives and Tax Credits. Purchaser shall not be obligated to incur any out —of— pocket costs or expenses in connection with such actions unless reimbursed by Seller. If any Environmental Incentives are paid directly to Purchaser, Purchaser shall immediately pay such amounts over to Seller. To avoid any conflicts with fair trade rules regarding claims of solar or renewable energy use, Purchaser, if engaged in commerce and/or trade, shall submit to Seller for approval any press releases regarding Purchaser's use of solar or renewable energy and shall not submit for publication any such releases without the written approval of Seller. Approval shall not be unreasonably withheld, and Seller's review and approval shall be made in a timely manner to permit Purchaser's timely publication. "Environmental Attributes" means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the System, the production of electrical energy from the System and its displacement of conventional energy generation, including (1) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to the actual or potential threat of altering the Earth's climate by trapping heat in the atmosphere; and (3) the reporting rights related to these avoided emissions, such as Green Tag Reporting Rights and Renewable Energy Credits. Green Tag Reporting Rights are the right of a party to report the ownership of accumulated Green Tags in compliance with federal or state law, if applicable, and to a federal or state agency or any other parry, and include Green Tag Reporting Rights accruing under Section 1605(b) of The Energy Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and international or foreign emissions trading program. Environmental Attributes do not include Environmental Incentives and Tax Credits. Purchaser and Seller shall file all tax returns in a manner consistent with this Paragraph 5. Without limiting the generality of the foregoing, Environmental Attributes include carbon trading credits, renewable energy credits or certificates, emissions reduction credits, investment credits, emissions allowances, green tags, tradeable renewable credits and Green -e® products. "Environmental Incentives" means any and credits, rebates, subsidies, payments or other incentives that relate to self — generation of electricity, the use of technology incorporated into the System, environmental benefits of using the System, or other similar programs available from the Utility, any other regulated entity, the manufacturer of any part of the System or any Governmental Authority. "Governmental Authority" means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasi - governmental, judicial, public or statutory instrumentality, authority, Solar Power Purchase Agreement v.20091015 body, agency, bureau or entity (including the Federal Energy Regulatory Commission or the California Public Utilities Commission), or any arbitrator with authority to bind a party at law. "Tax Credits" means any and all (i) investment tax credits, (ii) production tax credits and (iii) similar tax credits under federal, state or local law relating to the construction, ownership or production of energy from the System. 6. Conditions to Obligations a. Conditions to Seller's Obligations Seller's obligations under this Agreement are conditioned on the completion of the following conditions to Seller's reasonable satisfaction on or before the Condition Satisfaction Date: Completion of a physical inspection of the Facility and the property upon which the Facility is located (the "Premises ") including, if applicable, geotechnical work, and real estate due diligence to confirm the suitability of the Facility and the Premises for the System; ii. Approval of (i) this Agreement and (ii) the Construction Agreement (if any) for the System by Seller's Financing Parties. "Construction Agreement' as used in this subsection means an agreement between SolarCity and a subcontractor to install the System. iii. Confirmation that Seller will obtain all applicable Environmental Incentives and Tax Credits; iv. Receipt of all necessary zoning, land use and building permits; and V. Execution of all necessary agreements with the Utility for interconnection of the System to the Utility's electric distribution system. vi. Prior to Seller commencing construction and installation of the System, Purchaser shall give Seller proof of insurance for all insurance required to be maintained by Purchaser under this Agreement. b. Conditions to Purchaser's Obligations Purchaser's obligations under this Agreement are conditioned on the occurrence of the Commercial Operation Date for the System on or before the Outside Commercial Operation Date (See Exhibit 1 . C. Failure of Conditions If any of the conditions listed in subsections a) or b) above are not satisfied by the applicable dates specified in those subsections, the Parties will attempt in good faith to negotiate new dates for the satisfaction of the failed conditions. If the parties are unable to negotiate new dates then the Patty that has not failed to meet an obligation may terminate this Agreement upon ten (10) days written notice to the other Party without liability for costs or damages or triggering a default under this Agreement. 7. Seller's Rights and Obligations a. Permits and Approvals Seller, with Purchaser's reasonable cooperation, shall use commercially reasonable efforts to obtain, at its sole cost and expense: any zoning, land use and building permits required to construct, install and operate the System; and ii. any agreements and approvals from the Utility necessary in order to interconnect the System to the Utility's electric distribution system. Purchaser shall cooperate with Seller's reasonable requests to assist Seller in obtaining such agreements, permits and approvals. b. - Standard System Repair and Maintenance Seller shall construct and install the System at the Facility and shall use reasonable efforts to ensure that the System is performing to specifications. During the Term, Seller will operate and perform all routine and emergency repairs to and maintenance of the System at its sole cost and expense, except Solar Power Purchase Agreement v.20091015 for any repairs or maintenance resulting from Purchaser's negligence, willful misconduct or breach of this Agreement or the Site Lease (if applicable). Seller shall not be responsible for any work done by others on any part of the System unless Seller authorizes that work in advance in writing. Seller shall not be responsible for any loss, damage, cost or expense arising out of or resulting from improper environmental controls or improper operation or maintenance of the System by anyone other than Seller or Seller's contractors. If the System requires repairs for which Seller is not responsible, Purchaser shall pay Seller for diagnosing and correcting the problem at Seller or Seller's contractors' then current standard rates. Seller shall provide Purchaser with reasonable notice prior to accessing the Facility to make standard repairs. C. Non - Standard System Repair and Maintenance If Seller incurs incremental costs to maintain the System due to conditions at the Facility or due to the inaccuracy of any information provided by Purchaser and relied upon by Seller, the pricing, schedule and other terms of this Agreement will be equitably adjusted to compensate for any work in excess of normally expected work required to be performed by Seller. In such event, the Parties will negotiate such equitable adjustment in good faith. d. Breakdown Notice Seller shall notify Purchaser within twenty-four (24) hours following Seller's discovery of (a) any material malfunction in the operation of the System or (b) an interruption in the supply of electrical energy from the System. Purchaser and Seller shall each designate personnel and establish procedures such that each Party may provide notice of such conditions requiring Seller's repair or alteration at all times, twenty-four (24) hours per day, including weekends and holidays. Purchaser shall notify Seller immediately upon the discovery of an emergency condition affecting the System. e. Suspension Notwithstanding anything to the contrary herein, Seller shall be entitled to suspend delivery of electricity from the System to the Delivery Point for the purpose of maintaining and repairing the System and such suspension of service shall not constitute a breach of this Agreement; rop vided that Seller shall use commercially reasonable efforts to minimize any interruption in service to the Purchaser. f. Use of Contractors and Subcontractors Seller shall be permitted to use contractors and subcontractors to perform its obligations under this Agreement. However, Seller shall continue to be responsible for the quality of the work performed by its contractors and subcontractors. If a list of pre— approved contractors and subcontractors is desired, such list shall be scheduled on an appendix to Exhibit 7 . All Contractors and subcontractors other than those that may be scheduled on an appendix to Exhibit 7 shall be subject to Purchaser's prior written consent, not to be unreasonably withheld. g. Liens and Payment of Contractors and Suppliers Seller shall pay when due all valid charges from all contractors, subcontractors and suppliers supplying goods or services to Seller under this Agreement and shall keep the Facility free and clear of any liens related to such charges, except for those liens which Seller is permitted by law to place on the Facility following non - payment by Purchaser of amounts due under this Agreement. Seller shall indemnify and defend Purchaser for and from all claims, losses, damages, liabilities and expenses resulting from any liens filed against the Facility or the Premises in connection with such charges; provided, however, that Seller shall have the right to contest any such lien, so long as it provides a statutory bond or other reasonable assurances of payment that either remove such lien from title to the Facility and the Premises or that assure that any adverse judgment with respect to such lien will be paid without affecting title to the Facility and the Premises. h. No Warranty NO WARRANTY OR REMEDY, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE SHALL APPLY. The remedies set forth in this Agreement shall be Purchaser's sole and exclusive remedies for any claim or liability arising out of or in connection with this Agreement, whether arising in contract, tort (including negligence), strict liability or otherwise. Installation Damage, Seller shall repair any damage to the Facility it causes in the preparation, installation, or maintenance of the System. 8. Purchaser Rights and Obligations a. Facility Access Rights Purchaser grants to Seller and to Seller's agents, employees and contractors an irrevocable non - exclusive license running with the Premises (the "License ") for access to, on, over, under and across the Premises as more particularly described in Exhibit 5 (the "License Area ") for the purposes of (a) installing, constructing, operating, owning, maintaining, accessing, removing and replacing the System; (b) performing all of Seller's obligations and enforcing all of Seller's rights set forth in this Agreement; and (c) installing, using and Solar Power Purchase Agreement v.20091015 7 maintaining electric lines and equipment, including inverters and meters, necessary to interconnect the System to Purchaser's electric system at the Facility and/or to the Utility's electric distribution system or that otherwise may from time to time be useful or necessary in connection with the construction, installation, operation, maintenance or repair of the System. Seller shall notify Purchaser prior to entering the Facility except in situations where there is imminent risk of damage to persons or property. The term of the License shall continue until the date that is one hundred and twenty (120) days following the date of expiration or termination of this Agreement (the "License Term "). During the License Term, Purchaser shall ensure that Seller's rights under the License and Seller's access to the License Area are preserved and protected and shall not interfere with or permit any third parties to interfere with such rights or access. The grant of the License shall survive termination of this agreement by either Party. Purchaser agrees that Seller may record a memorandum of license in substantially the same form attached hereto as Exhibit 6 in the land records respecting the License. b. OSHA Compliance Purchaser shall ensure that all Occupational Safety and Health Act (OSHA) requirements and other similar applicable safety laws or codes are adhered to in its performance under this Agreement. C. Maintenance of Facility Purchaser shall, at its sole cost and expense, maintain the Facility in good condition and repair. Purchaser will ensure that the Facility remains interconnected to the local utility grid at all times and will not permit cessation of electric service to the Facility from the local utility. Purchaser is fully responsible for the maintenance and repair of the Facility's electrical system and of all of Purchaser's equipment that utilizes the System's outputs. Purchaser shall properly maintain in full working order all of Purchaser's electric supply or generation equipment that Purchaser may shut down while utilizing the System. Purchaser shall promptly notify Seller of any matters of which it is aware pertaining to any damage to or loss of use of the System or that could reasonably be expected to adversely affect the System. d. No Alteration of Facility Purchaser shall not make any alterations or repairs to the Facility which may adversely affect the operation and maintenance of the System without Seller's prior written consent. If Purchaser wishes to make such alterations or repairs, Purchaser shall give prior written notice to Seller, setting forth the work to be undertaken (except for emergency repairs, for which notice may be given by telephone), and give Seller the opportunity to advise Purchaser in making such alterations or repairs in a manner that avoids damage to the System, but, notwithstanding any such advice, Purchaser shall be responsible for all damage to the System caused by Purchaser or its contractors. To the extent that temporary disconnection or removal of the System is necessary to perform such alterations or repairs, such work and any replacement of the System after completion of Purchaser's alterations and repairs, shall be done by Seller or its contractors at Purchaser's cost. All of Purchaser's alterations and repairs will be done in a good and workmanlike manner and in compliance with all applicable laws, codes and permits. e. Outaees Purchaser shall be permitted to be off line for two (2) full twenty-four (24) hour days (each, a "Scheduled Outage ") per calendar year during the Term, during which days Purchaser shall not be obligated to accept or pay for electricity from the System; provided, however that Purchaser must notify Seller in writing of each such Scheduled Outage at least forty-eight (48) hours in advance of the commencement of a Scheduled Outage. In the event that Scheduled Outages exceed two (2) days per calendar year or there are unscheduled outages, in each case for a reason other than a Force Majeure event, Seller shall reasonably estimate the amount of electricity that would have been delivered to Purchaser during such excess Scheduled Outages or unscheduled outages and shall invoice Purchaser for such amount in accordance with Section 4 . Liens. Purchaser shall not directly or indirectly cause, create, incur, assume or allow to exist any mortgage, pledge, lien, charge, security interest, encumbrance or other claim of any nature on or with respect to the System or any interest therein. Purchaser shall immediately notify Seller in writing of the existence of any such mortgage, pledge, lien, charge, security interest, encumbrance or other claim, shall promptly cause the same to be discharged and released of record without cost to Seller, and shall indemnify Seller against all costs and expenses (including reasonable attorneys' fees) incurred in discharging and releasing any such mortgage, pledge, lien, charge, security interest, encumbrance or other claim. g. Security. Purchaser shall be responsible for maintaining the physical security of the License Area and for any damage or vandalism to the System as a result of failure to maintain such security. Purchaser will not conduct activities on, in or about the License Area or the Facility that have a reasonable likelihood of causing damage, impairment or otherwise adversely affecting the System Purchaser shall provide and take reasonable measures for security of the System, including commercially reasonable monitoring of the Facility's alarms. h. Insulation Purchaser understands that unobstructed access to sunlight (` Insulation ") is essential to Seller's performance of its obligations, and a material term of this Agreement. Purchaser shall not in any way cause and, Solar Power Purchase Agreement v.20091015 8 where possible, shall not in any way permit any interference with the System's Insolation. If Purchaser becomes aware of any activity or condition that could diminish the Insolation of the System, Purchaser shall notify Seller immediately and shall cooperate with Seller in preserving the System's existing Insolation levels. The Parties agree that reducing Insolation would irreparably injure Seller, that such injury may not be adequately compensated by an award of money damages, and that Seller is entitled to seek specific enforcement of this Section 8(h) against Purchaser. i. Data Line Purchaser shall provide Seller a high speed intemet data line during the Term to enable Seller to record the electric energy generated by the System. If Purchaser fails to provide such high speed intemet data line, or if such line ceases to function and is not repaired, Seller may reasonably estimate the amount of electric energy that was generated and invoice Purchaser for such amount in accordance with Section 4 . j. Breakdown Notice Purchaser shall notify Seller within twenty -four (24) hours following the discovery by it of (A) any material malfunction in the operation of the System; or (B) any occurrences that could reasonably be expected to adversely affect the System. Purchaser shall notify Seller immediately upon (A) an interruption in the supply of electrical energy from the System; or (B) the discovery of an emergency condition respecting the System. Purchaser and Seller shall each designate personnel and establish procedures such that each Party may provide notice of such conditions requiring Seller's repair or alteration at all times, twenty-four (24) hours per day, including weekends and holidays. 9. Reserved 10. Relocation of System If Purchaser ceases to conduct business operations at and/or vacates the Facility or is prevented from operating the System at the Facility prior to the expiration of the Term, Purchaser shall have the option to provide Seller with a mutually agreeable substitute premises located within the same Utility district as the terminated System or in a location with similar Utility rates and Insolation. Purchaser shall provide at least sixty (6,0) but not more than one hundred eighty (180) days prior written notice prior to the date that it wants to make this substitution. In connection with such substitution, Purchaser shall execute an amended agreement that shall have all of the same terms as this Agreement except for the (i) Effective Date; (it) License, which will be amended to grant rights in the real property where the System relocated to; and (iii) Term, which will be the remainder of the Term of this Agreement and such amended agreement shall be deemed to be a continuation of this Agreement without termination. Purchaser shall also provide any new Purchaser, owner, lessor or mortgagee consents or releases required by Seller or Seller's Financing Parties in connection with the substitute facility. Purchaser shall pay all costs associated with relocation of the System, including all costs and expenses incurred by or on behalf of Seller in connection with removal of the System from the Facility and installation and testing of the System at the substitute facility and all applicable interconnection fees and expenses at the substitute facility, as well as costs of new title search and other out -of- pocket expenses connected to preserving and refiling the security interests of Seller's Financing Parties in the System Seller shall remove the System from the vacated Facility prior to the termination of Purchaser's ownership, lease or other rights to use such Facility. Seller will not be required to restore the Facility to its condition at the time the System was installed but shall promptly pay Purchaser for any damage caused by Seller during removal of the System, but not for normal wear and tear. If the substitute facility has inferior Insolation as compared to the original Facility, Seller shall have the right to make an adjustment to Exhibit 1 such that Purchaser's payments to Seller are the same as if the System were located at the original Facility. If Purchaser is unable to provide such substitute Facility and to relocate the System as provided, any early termination will be treated as a default by Purchaser. 11. Removal of System at Expiration Upon the expiration or earlier termination of this Agreement (provided Purchaser does not exercise its purchase option), Seller shall, at its expense, remove all of its tangible property comprising the System from the Facility on a mutually convenient date but in no event later than ninety (90) days after the expiration of the Term. The Facility shall be returned to its original condition, except for ordinary wear and tear. In no case shall Seller's removal of the System affect the integrity of Purchaser's roof, which shall be as leak proof as it was prior to removal of the System. Seller shall leave the Facility in neat and clean order. If Seller fails to remove or commence substantial efforts to remove the System by such agreed upon date, Purchaser shall have the right, at its option, to remove the System to a public warehouse and restore the Facility to its original condition (other than System mounting pads or other support structures and ordinary wear and tear) at Seller's cost. Purchaser shall provide sufficient space for the temporary storage and staging of tools, materials and equipment and for the parking of construction crew vehicles and temporary construction trailers and facilities reasonably necessary during System removal. 12. Measurement Solar Power Purchase Agreement v,20091015 9 Electricity delivered to the Facility shall be measured by the SolarGuard monitoring system installed and maintained by Seller as part of the System. 13. Default. Remedies and Damages a. Default Any Party that fails to perform its responsibilities as listed below or experiences any of the circumstances listed below shall be deemed a "Defaulting Party" and each event of default shall be a "Default Event": (1) failure of a Party to pay any amount due and payable under this Agreement, other than an amount that is subject to a good faith dispute, within ten (10) days following receipt of written notice from the other Party (the "Non- Defaulting Party ") of such failure to pay ( "Payment Default "); (2) failure of a Party to substantially perform any other material obligation under this Agreement within thirty (30) days following receipt of written notice from the Non - Defaulting Parry demanding such cure; provided, that such thirty (30) day cure period shall be extended (but not beyond ninety (90) days) if and to the extent reasonably necessary to cure the Default Event, if (i) the Defaulting Party initiates such cure with the thirty (30) day period and continues such cure to completion and (ii) there is no material adverse affect on the Non - Defaulting Party resulting from the failure to ewe the Default Event; (3) if any representation or warranty of a Parry proves at any time to have been incorrect in any material respect when made and is material to the transactions contemplated hereby, if the effect of such incorrectness is not cured within thirty (30) days following receipt of written notice from the Non - Defaulting Party demanding such cure; (4) Purchaser loses its rights to occupy and enjoy the Premises; or (5) a Party, or its guarantor, becomes insolvent or is a party to a bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding -up or relief of debtors, or any general assignment for the benefit of creditors or other similar arrangement or any event occurs or proceedings are taken in anyjurisdiction with respect to the Parry which has a similar effect. (6) Purchaser prevents Seller from installing the System or otherwise failing to perform in a way that prevents the delivery of electric energy from the System. (Such Default Event shall not excuse Purchaser's obligations to make payments that otherwise would have been due under this Agreement.) b. Remedies (1) Remedies for Payment Default If a Payment Default occurs, the Non - Defaulting Party may suspend performance of its obligations under this Agreement. Further, the Non - Defaulting Party may pursue any remedy under this Agreement, at law or in equity, including an action for damages and termination of this Agreement, upon five (5) days prior written notice to the Defaulting Party following the Payment Default. The foregoing notice does not affect the Seller's obligations to comply with the California Government Tort Claims Act where applicable. (2) Remedies for Other Defaults On the occurrence of a Default Event other than a Payment Default, the Non - Defaulting Party may pursue any remedy under this Agreement, at law or in equity, including an action for damages and termination of this Agreement or suspension of performance of its obligations under this Agreement, upon five (5) days prior written notice to the Defaulting Party following the occurrence of the Default Event. Nothing herein shall limit either Patty's right to collect damages upon the occurrence of a breach or a default by the other Party that does not become a Default Event. The foregoing notice does not affect the Seller's obligations to comply with the California Government Tort Claims Act where applicable. (3) Damages Upon Termination by Default Upon a termination of this Agreement by the Non - Defaulting Party as a result of a Default Event by the Defaulting Party, the Defaulting Party shall pay a Termination Payment to the Non - Defaulting Party determined as follows (the "Termination Payment "): Solar Power Purchase Agreement x.20091015 10 A. Purchaser If Purchaser is the Defaulting Party and Seller terminates this Agreement, the Termination Payment to Seller shall be equal to the sum of (i) the termination value set forth in Exhibit I (the "Termination Value ") for such Contract Year, (it) removal costs as provided in Section 13(b)(3)(C) and (iii) any and all other amounts previously accrued under this Agreement and then owed by Purchaser to Seller. The Parties agree that actual damages to Seller in the event this Agreement terminates prior to the expiration of the Term as the result of an Default Event by Purchaser would be difficult to ascertain, and the applicable Termination Value set forth in Exhibit I is a reasonable approximation of the damages suffered by Seller as a result of early termination of this Agreement. The Termination Payment shall not be less than zero. B. , Seller. If Seller is the Defaulting Party and Purchaser terminates this Agreement, the Termination Payment to Purchaser shall be equal to the sum of (i) the present value (using a discount rate of 9.5 %) of the excess, if any, of the reasonably expected cost of electric energy from the Utility over the Contract Price for the reasonably expected production of the Facility for the remainder of the Initial Term or the then current Additional Term, as applicable; (ii) all costs reasonably incurred by Purchaser in re- converting its electric supply to service from the Utility; (iii) any removal costs incurred by Purchaser, and (iv) any and all other amounts previously accrued under this Agreement and then owed by Seller to Purchaser. The Termination Payment shall not be less than zero. C. Obligations Followine Termination If a Non - Defaulting Party terminates this Agreement pursuant to this Section 13(b)(3)(C), then following such termination, Seller shall, at the sole cost and expense of the Defaulting Party, remove the equipment (except for mounting pads and support structures) constituting the System. The Non - Defaulting Parry shall take all commercially reasonable efforts to mitigate its damages as the result of a Default Event. 14. Representations and Warranties a. General Representations and Warranties Each Party represents and warrants to the other the following: (1) Such Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; the execution, delivery and performance by such Party of this Agreement have been duly authorized by all necessary corporate, partnership or limited liability company action, as applicable, and do not and shall not violate any law; and this Agreement is valid obligation of such Party, enforceable against such Party in accordance with its terms (except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to creditors' rights generally). (2) Such Party has obtained all licenses, authorizations, consents and approvals required by any Governmental Authority or other third party and necessary for such Party to own its assets, carry on its business and to execute and deliver this Agreement;'and such Party is in compliance with all laws that relate to this Agreement in all material respects. b. Purchaser's Representations and Warranties Purchaser represents and warrants to Seller the following: (1) License Purchaser has the full right, power and authority to grant the License contained in Section 8(a) Such grant of the License does not violate any law, ordinance, rule or other governmental restriction applicable to Purchaser or the Facility and is not inconsistent with and will not result in a breach or default under any agreement by which Purchaser is bound or that affects the Facility. (2) Other Agreements Neither the execution and delivery of this Agreement by Purchaser nor the performance by Purchaser of any of its obligations under this Agreement conflicts with or will result in a breach or default under any agreement or obligation to which Purchaser is a parry or by which Purchaser or the Facility is bound. Solar Power Purchase Agreement v.20091015 11 (3) Accuracy of Information All information provided by Purchaser to Seller, as it pertains to the Facility's physical configuration, Purchaser's planned use of the Facility, and Purchaser's estimated electricity requirements, is accurate in all material respects. (4) Purchaser Status Purchaser is not a public utility or a public utility holding company and is not subject to regulation as a public utility or a public utility holding company. (5) No Pool Use No electricity generated by the System will be used to heat a swimming pool. (6) Oregon Onlv The electricity generated by the System will be used solely for commercial and business purposes. No portion of the electricity generated will be used for personal, family, household or agricultural purposes. 15. System Damage and Insurance a. System Damage (1) Seller's Obligations If the System is damaged or destroyed other than by Purchaser's negligence or willful misconduct, Seller shall promptly repair and restore the System to its pre- existing condition; provided however, that if more than fifty percent (50 %) of the System is destroyed during the last five (5) years of the Initial Term or during any Additional Term, Seller shall not be required to restore the System, but may instead terminate this Agreement, unless Purchaser agrees (i) to pay for the cost of such restoration of the System or (ii) to purchase the System "AS -IS" at the greater of (A) then current fair market value of the System and (B) the sum of the amounts described in Section 13.b(3)A)(i) (using the date of purchase to determine the appropriate Contract Year) and Section 13.b(3)A)(iii) (2) Purchaser's Obligations If the Facility is damaged or destroyed by casualty of any kind or any other occurrence other than Seller's negligence or willful misconduct, such that the operation of the System and/or Purchaser's ability to accept the electric energy produced by the System are materially impaired or prevented, Purchaser shall promptly repair and restore the Facility to its pre- existing condition; provided, however that if more than five percent (5 %) of the Facility is destroyed Purchaser may elect either (i) to restore the Facility or (ii) to pay the Termination Value set forth in Exhibit 1 and all other costs previously accrued but unpaid under this Agreement and thereupon terminate this Agreement and take title to the System.' b. Insurance Coverage At all times during the Term, Seller and Purchaser shall maintain the following insurance i. Seller's Insurance Seller shall maintain (i) comprehensive general liability insurance with coverage of at least $1,000,000 per occurrence and $2,000,000 annual aggregate, (ii) employer's liability insurance with coverage of at least $1,000,000 and (iii) worker's compensation insurance as required by law. ii. Purchaser's Insurance Purchaser shall maintain (i) "all risk" property insurance on the System for the full replacement cost thereof and name Seller as a loss payee, (ii) comprehensive general liability insurance with coverage of at least $1,000,000 per occurrence and $2,000,000 annual aggregate, (iii) employer's liability insurance with coverage of at least $1,000,000 and (iv) worker's compensation insurance as required by law. C. Policy Provisions All insurance policies provided hereunder shall (i) contain a provision whereby the insurer agrees to give the party not providing the insurance thirty (30) days (ten (10) days in the event of non - payment of premiums) written notice before the insurance is cancelled, terminated or materially altered, (ii) be written on an occurrence basis, (iii) with respect to the casualty insurance policies, name Seller as loss payee thereunder, (iv) with respect to the liability insurance policies, include the other Party as an additional insured as its interest may appear, (iv) include waivers of subrogation, (v) provide for primary coverage without right of contribution from any insurance of the other Party, and (vi) be maintained with companies either rated no less than A- as to Policy Holder's Rating in the current edition of Best's Insurance Guide or otherwise reasonably acceptable to the other party. Solar Power Purchase Agr=nent v.20091015 12 d. Certificates Within thirty (30) days after execution of this Agreement and upon the other Party's request and annually thereafter, each Party shall deliver the other Party certificates of insurance evidencing the above required coverage. Deductibles Unless and to the extent that a claim is covered by an indemnity set forth in this Agreement, each Party shall be responsible for the payment of its own deductibles. 16. Ownership; Option to Purchase a. Ownership of System Throughout the Term, Seller shall be the legal and beneficial owner of the System at all times, including all Environmental Attributes, and the System shall remain the personal property of Seller and shall not attach to or be deemed a part of, or fixture to, the Facility or the Premises. Each of the Seller and Purchaser agree that the Seller is the tax owner of the System and all tax filings and reports will be filed in a manner consistent with this Agreement. The System shall at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code. Purchaser covenants that it will use commercially reasonable efforts to place all parties having an interest in or a mortgage, pledge, lien, charge, security interest, encumbrance or other claim of any nature on the Facility or the Premises on notice of the ownership of the System and the legal status or classification of the System as personal property. If there is any mortgage or fixture filing against the Premises which could reasonably be construed as prospectively attaching to the System as a fixture of the Premises, Purchaser shall provide a disclaimer or release from such lienholder. If Purchaser is the fee owner of the Premises, Purchaser consents to the filing of a disclaimer of the System as a fixture of the Premises in the office where real estate records are customarily filed in the jurisdiction where the Facility is located. If Purchaser is not the fee owner, Purchaser will obtain such consent from such owner. Purchaser agrees to deliver to Seller a non - disturbance agreement in a form reasonably acceptable to Seller from the owner of the Facility (if the Facility is leased by Purchaser), any mortgagee with a lien on the Premises, and other Persons holding a similar interest in the Premises. b. Option to Purchase At the end of the fifth (5th) and tenth (10th) Contract Years and at the end of the Initial Term and each Additional Term, so long as Purchaser is not in default under this Agreement, Purchaser may exercise an option to purchase the System from Seller for a purchase price equal to (i) with respect to an option exercised at the end of the fifth (5th) or tenth (10th) Contract Years or at the end of the Initial Term, the greater of (A) the amount set forth at such time in the Purchase Option Price schedule in Exhibit 1 , and (B) the Fair Market Value of the System, and (ii) with respect to an option exercised at the end of an Additional Term, the Fair Market Value of the System. The "Fair Market Value" of the System shall be determined by mutual agreement of Purchaser and Seller; provided, however if Purchaser and Seller cannot agree to a Fair Market Value within thirty (30) days after Purchaser has exercised its option, the Parties shall select an independent appraiser with experience and expertise in the solar photovoltaic industry in the County where the Facility is located to determine the Fair Market Value of the System. Such appraiser shall act reasonably and in good faith to determine the Fair Market Value of the System and shall set forth such determination in a written opinion delivered to the Parties. The valuation made by the appraiser shall be binding upon the Parties in the absence of fraud or manifest error. The costs of the appraisal shall be home by the Parties equally. Seller shall notify Purchaser of window for exercising the purchase option not less than thirty (30) days nor more than ninety (90) days prior to the start of the option period. Purchaser must then provide a notification to Seller of its intent to purchase at least ninety (90) days and not more than one hundred eighty (180) days prior to the end of the applicable Contract Year or the Initial Term or Additional Term, as applicable, and the purchase shall be complete after the end of the Contract Year but not later than 180 days after the end of the Contract year. Upon purchase of the System, Purchaser will assume complete responsibility for the operation and maintenance of the System and liability for the performance of the System, and Seller shall have no further liabilities or obligations hereunder. If the Parties are unable to agree on a negotiated System value and Purchaser determines that the appraised value is in excess of the amount that Purchaser desires to pay for the System, Purchaser may withdraw the notice to exercise the purchase option without further obligation and such withdrawal shall have no effect on any future purchase option rights. 17. Indemnification and Limitations of Liabili a. General Each Party (the "Indemnifying Party") shall defend, indemnify and hold harmless the other Party and the directors, officers, shareholders, partners, members, agents and employees of such other Party, and the respective affiliates of each thereof (collectively, the "Indemnified Parties "), from and against all loss, damage, expense, liability and other claims, including court costs and reasonable attorneys' fees (collectively, "Liabilities ") resulting from any third party actions relating to the breach of any representation or warranty set forth in Section 14 and from injury to or death of persons, and damage to or loss of property to the extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of, the Indemnifying Party (or its contractors, agents or employees) in connection with this Agreement; provided, however that nothing herein shall require the Indemnifying Party to Solar Power Purchase Agr rncnt v.20091015 13 indemnify the Indemnified Party for any Liabilities to the extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of, the Indemnified Parry. This Section 17(a) however, shall not apply to liability arising from any form of hazardous substances or other environmental contamination, such matters being addressed exclusively by Section 17(c) b. Notice and Participation in Third Party Claims The Indemnified Party shall give the Indemnifying Parry written notice with respect to any Liability asserted by a third party (a "Claim'), as soon as possible upon the receipt of information of any possible Claim or of the commencement of such Claim. The Indemnifying Party may assume the defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnified Party may, however, select separate counsel if both Parties are defendants in the Claim and such defense or other form of participation is not reasonably available to the Indemnifying Patty. The Indemnifying Parry shall pay the reasonable attorneys' fees incurred by such separate counsel until such time as the need for separate counsel expires. The Indemnified Party may also, at the sole cost and expense of the Indemnifying Party, assume the defense of any Claim if the Indemnifying Party fails to assume the defense of the Claim within a reasonable time. Neither Party shall settle any Claim covered by this Section 17(b) unless it has obtained the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Indemnifying Party shall have no liability under this Section 17(b) for any Claim for which such notice is not provided if that the failure to give notice prejudices the Indemnifying Party. Environmental Indemnification Seller shall indemnify, defend and hold harmless all of Purchaser's Indemnified Parties from and against all Liabilities arising out of or relating to the existence at, on, above, below or new the License Area of any Hazardous Substance (as defined in Section 17(c)(i)) to the extent deposited, spilled, released or otherwise caused by Seller or any of its contractors or agents. Purchaser shall indemnify, defend and hold harmless all of Seller's Indemnified Parries from and against all Liabilities arising out of or relating to the existence at, on, above, below or near the Premises of any Hazardous Substance, except to the extent deposited, spilled, released or otherwise caused by Seller or any of its contractors or agents. Each Party shall promptly notify the other Party if it becomes aware of any deposit, spill or release of any Hazardous Substance on or about the License Area or the Premises generally. " Hazardous Substance means any chemical, waste or other substance (a) which now or hereafter becomes defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "extremely hazardous wastes," `restricted hazardous wastes," "toxic substances," "toxic pollutants," "pollution," "pollutants," `regulated substances," or words of similar import under any laws pertaining to the environment, health, safety or welfare, (b) which is declared to be hazardous, toxic, or polluting by any Governmental Authority, (c) exposure to which is now or hereafter prohibited, limited or regulated by any Governmental Authority, (d) the storage, use, handling, disposal or release of which is restricted or regulated by any Governmental Authority, or (e) for which remediation or cleanup is required by any Governmental Authority. d. Limitations on Liability No Consequential Damages Neither Party nor its directors, officers, shareholders, partners, members, agents and employees subcontractors or suppliers shall be liable for any indirect, special, incidental, exemplary, or consequential loss or damage of any nature arising out of their performance or non- performance hereunder even if advised of such. ii. Actual Damages. Except with respect to Seller's indemnification obligations pursuant to Section 17, Seller's aggregate liability under this Agreement arising out of or in connection with the performance or non - performance of this Agreement shall not exceed $56,272. The provisions of this Section (17)(dl(ii) - shall apply whether such liability arises in contract, tort (including negligence), strict liability or otherwise. Any action against Seller must be brought within one (1) year after the cause of action accrues. 18. Force Maieure a. "Force Majeure" means any event or circumstances beyond the reasonable control of and without the fault or negligence of the Party claiming Force Majeure. It shall include, without limitation, failure or interruption of the production, delivery or acceptance of electricity due to: an act of god; war (declared or undeclared); sabotage; riot; insurrection; civil unrest or disturbance; military or guerilla action; terrorism; economic sanction or embargo; civil strike, work stoppage, slowdown, or lock -out; explosion; fire; earthquake; abnormal weather condition or actions of the elements; hurricane; flood; lightning; wind; drought; the binding order of any Governmental Authority (provided that such order has been resisted in good faith by all reasonable legal means); the failure to act on the part of any Solar Power Purchase Agreement v.20091015 14 Governmental Authority (provided that such action has been timely requested and diligently pursued); unavailability of electricity from the utility grid, equipment, supplies or products (but not to the extent that any such availability of any of the foregoing results from the failure of the Party claiming Force Majeure to have exercised reasonable diligence); and failure of equipment not utilized by or under the control of the Parry claiming Force Majeure. b. Except as otherwise expressly provided to the contrary in this Agreement, if either Party is rendered wholly or partly unable to timely perform its obligations under this Agreement because of a Force Majeure event, that Party shall be excused from the performance affected by the Force Majeure event (but only to the extent so affected) and the time for performing such excused obligations shall be extended as reasonably necessary; provided. that: (i) the Party affected by such Force Majeure event, as soon as reasonably practicable after obtaining knowledge of the occurrence of the claimed Force Majeure event, gives the other Party prompt oral notice, followed by a written notice reasonably describing the event; (ii) the suspension of or extension of time for performance is of no greater scope and of no longer duration than is required by the Force Majeure event; and (iii) the Party affected by such Force Majeure event uses all reasonable efforts to mitigate or remedy its inability to perform as soon as reasonably possible. Seller shall not be liable for any damage to the System or the Facility resulting from a Force Majeure event. The Term shall be extended day for day for each day performance is suspended due to a Force Majeure event. C. Notwithstanding anything herein to the contrary, the obligation to make any payment due under this Agreement shall not be excused by a Force Majeure event. d. If a Force Majeure event continues for a period of one hundred (180) days or more within a twelve (12) month period and prevents a material part of the performance by a Party hereunder, the Party not claiming the Force Majeure shall have the right to terminate this Agreement without fault or further liability to either Parry (except for amounts accrued but unpaid). 19. Assignment and Financing a. Assignment This Agreement may not be assigned in whole or in part by either Parry without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Seller may, without the prior written consent of Purchaser, (i) assign, mortgage, pledge or otherwise collaterally assign its interests in this Agreement to any Financing Party, (ii) directly or indirectly assign this Agreement to an affiliate of Seller, (iii) assign. this Agreement to any entity through which Seller is obtaining financing or capital for the System and (iv) assign this Agreement to any person succeeding to all or substantially all of the assets of Seller (provided that Seller shall be released from liability hereunder as a result of any of the foregoing permitted assignments only upon assumption of Seller's obligations hereunder by the assignee). Purchaser's consent to any other assignment shall not be unreasonably withheld if Purchaser has been provided with reasonable proof that the proposed assignee (x) has comparable experience in operating and maintaining photovoltaic solar systems comparable to the System and providing services comparable to those contemplated by this Agreement and (y) has the financial capability to maintain the System and provide the services contemplated by this Agreement in the manner required by this Agreement. This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees. b. Financing The Parties acknowledge that Seller may obtain construction and long -term financing or other credit support from lenders or third parties ( "Financing Parties ") in connection with the installation, construction, ownership, operation and maintenance of the System. Both Parties agree in good faith to consider and to negotiate changes or additions to this Agreement that may be reasonably requested by the Financing Parties; provided, that such changes do not alter the fundamental economic terms of this Agreement. The Parties also agree that Seller may assign this Agreement to the Financing Parties as collateral, and in connection with any such assignment, Purchaser agrees to execute a consent to assignment in customary form and reasonably acceptable to the Financing Parties. Solar Power Purchase Agreement v.20091015 15 20. Confidentiality and Publicity a. Confidentialiri If either Party provides confidential information, including business plans, strategies, financial information, proprietary, patented, licensed, copyrighted or trademarked information, and/or technical information regarding the design, operation and maintenance of the System or of Purchaser's business ( "Confidential Information ") to the other or, if in the course of performing under this Agreement or negotiating this Agreement a Party learns Confidential Information regarding the facilities or plans of. the other, the receiving Party shall (a) protect the Confidential Information from disclosure to third parties with the same degree of care accorded its own confidential and proprietary information, and (b) refrain from using such Confidential Information, except in the negotiation and performance of this Agreement. Notwithstanding the above, a Party may provide such Confidential Information to its, officers, directors, members, managers, employees, agents, contractors and consultants (collectively, "Representatives "), and affiliates, lenders, and potential assignees of this Agreement (provided and on condition that such potential assignees be bound by a written agreement or legal obligation restricting use and disclosure of Confidential Information), in each case whose access is reasonably necessary to the negotiation and performance of this Agreement. Each such recipient of Confidential Information shall be informed by the Party disclosing Confidential Information of its confidential nature and shall be directed to treat such information confidentially and shall agree to abide by these provisions. b. Permitted Disclosures Notwithstanding any other provision in this Agreement, neither Party shall be required to hold confidential any information that (i) becomes publicly available other than through the receiving Party, (ii) is required to be disclosed to a Governmental Authority under applicable law or pursuant to a validly issued subpoena (but a receiving Party subject to any such requirement shall promptly notify the disclosing Parry of such requirement to the extent permitted by applicable law), (iii) is independently developed by the receiving Party (iv) becomes available to the receiving Parry without restriction from a third party under no obligation of confidentiality, or (v) disclosure is required pursuant to the California Public Records Act as further discussed in section (c). If disclosure of information is required by a Governmental Authority, the disclosing Party shall, to the extent permitted by applicable law, notify the other Party of such required disclosure promptly upon becoming aware of such required disclosure and shall cooperate with the other Party in efforts to limit the disclosure to the maximum extent permitted by law. C. Notwithstanding the other provisions of this Agreement the parties agree that Purchaser is bound by the provisions of the California Public Records Act. During the Term of the Agreement the City will act to preserve the confidentiality of those documents which under this Agreement and the Act are confidential. To assist the Purchaser in preserving all documents in a confidential manner, all copies which are Proprietary shall be marked "PROTECTED MATERIALS — Contains Proprietary Information." The Purchaser shall take all reasonable precautions necessary to assure that the Confidential Information is not distributed to unauthorized persons. The parties agree that the documents and information provided to the City which have be marked and PROTECTED MATERIALS are exempt from production under the California Public Records Act, Cal. Govt Code Sections 6250, at seq., under either the exemption provided in Section 6254(e) or 6255(a), or both. In the event a claim is made against the Purchaser to provide the documents, the Seller agrees to defend and indemnify the Purchaser with acceptable counsel. 21. Goodwill and Publicity Neither Party shall use any name, trade name, service mark or trademark of the other Party in any promotional or advertising material without the prior written consent of such other Party. The Parties shall coordinate and cooperate with each other when making public announcements related to the execution and existence of this Agreement, and each Parry shall have the right to promptly review, comment upon and approve any publicity materials, press releases or other public statements by the other Party that refer to, or that describe any aspect of, this Agreement. Neither Party shall make any press release regarding or public announcement or the specific terms of this Agreement (except for filings or other statements or releases as may be required by applicable law) without the specific prior written consent of the other Party. Without limiting the generality of the foregoing, all public statements must accurately reflect the rights and obligations of the Parties under this Agreement, including the ownership of Environmental Attributes and Environmental Incentives and any related reporting rights. 22. General Provisions a. Choice of Law The law of the state where the System is located shall govern this Agreement without giving effect to conflict of laws principles. b. Arbitration and Attorneys' Fees Any dispute arising from or relating to this Agreement shall be arbitrated in Los Angeles, California. The arbitration shall be administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures, and judgment on any award may be entered in any court of competent Soler Power Purchase Agreement v.20091015 16 jurisdiction. If the Parties agree, a mediator may be consulted prior to arbitration. The prevailing party in any dispute arising out of this Agreement shall be entitled to reasonable attorneys' fees and costs. C. Notices All notices under this Agreement shall be in writing and shall be by personal delivery, facsimile transmission, electronic mail, overnight courier, or regular, certified, or registered mail, return receipt requested, and deemed received upon personal delivery, acknowledgment of receipt of electronic transmission, the promised delivery date after deposit with overnight courier, or five (5) days after deposit in the mail. Notices shall be sent to the person identified in this Agreement at the addresses set forth in this Agreement or such other address as either party may specify in writing. Each party shall deem a document faxed to it as an original document. d. Survival Provisions of this Agreement that should reasonably be considered to survive termination of this Agreement shall survive. For the avoidance of doubt, surviving provisions shall include, without limitation, Section 4 (Representations and Warranties), Section 7(h) (No Warranty), Section 15(b) (insurance), Section 17 (Indemnification), Section 20 (Confidentiality and Publicity), Section 21(a) (Choice of Law), Section 21 (b) (Arbitration and Attorneys' Fees), Section 21(c) (Notices), Section 21 (e) (Comparative Negligence), Section 21(hl (Non- Dedication of Facilities), Section 216) (Service Contract), Section 21(k) (No Partnership) Section 210D (Full Agreement, Modification, Invalidity, Counterparts, Captions) and Section 21(n) (No Third Party Beneficiaries). e. Further Assurances Each of the Parties hereto agree to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Parry which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of obligations other than those provided for in this Agreement, to give full effect to this Agreement and to carry out the intent of this Agreement. Pj2ht of Waiver Each Party, in its sole discretion, shall have the right to waive, defer or reduce any of the requirements to which the other Party is subject under this Agreement at any time; provided, however that neither Party shall be deemed to have waived, deferred or reduced any such requirements unless such action is in writing and signed by the waiving Party. No waiver will be implied by any usage of trade, course of dealing or course of performance. A Party's exercise of any rights hereunder shall apply only to such requirements and on such occasions as such Party may specify and shall in no event relieve the other Party of any requirements or other obligations not so specified. No failure of either Party to enforce any term of this Agreement will be deemed to be a waiver. No exercise of any right or remedy under this Agreement by Purchaser or Seller shall constitute a waiver of any other right or remedy contained or provided by law. Any delay or failure of a Party to exercise, or any partial exercise of, its rights and remedies under this Agreement shall not operate to limit or otherwise affect such rights or remedies. Any waiver of performance under this Agreement shall be limited to the specific performance waived and shall not, unless otherwise expressly stated in writing, constitute a continuous waiver or a waiver of future performance. g. Comparative Negligence It is the intent of the Parties that where negligence is determined to have been joint, contributory or concurrent, each Party shall bear the proportionate cost of any Liability. h. Non- Dedication of Facilities Nothing herein shall be construed as the dedication by either Party of its facilities or equipment to the public or any part thereof. Neither Party shall knowingly take any action that would subject the other Party, or other Party's facilities or equipment, to the jurisdiction of any Governmental Authority as a public utility or similar entity. Neither Patty shall assert in any proceeding before a court or regulatory body that the other Party is a public utility by virtue of such other Parry's performance under this agreement. If Seller is reasonably likely to become subject to regulation as a public utility, then the Parties shall use all reasonable efforts to restructure their relationship under this Agreement in a manner that preserves their relative economic interests while ensuring that Seller does not become subject to any such regulation. If the Parties are unable to agree upon such restructuring, Seller shall have the right to terminate this Agreement without further liability, and Seller shall remove the System in accordance with Section 11 of this Agreement. i. Estoppel Either Parry hereto, without charge, at any time and from time to time, within five (5) business days after receipt of a written request by the other party hereto, shall deliver a written instrument, duly executed, certifying to such requesting party, or any other person specified by such requesting Patty: (i) that this Agreement is unmodified and in full force and effect, or if there has been any modification, that the same is in full force and effect as so modified, and identifying any such modification; (ii) whether or not to the knowledge of any such party there are then existing any offsets or defenses in favor of such parry against enforcement of any of the terms, covenants and conditions of this Agreement and, if so, specifying the same and also whether or not to the knowledge of such party the other party has observed and performed all of the terms, covenants and conditions on its part to be observed and performed, and if not, specifying the same; and (iii) such other information as may be reasonably requested by the Solar Power Purchase Agreement v.20091015 17 requesting Parry. Any written instrument given hereunder may be relied upon by the recipient of such instrument, except to the extent the recipient has actual knowledge of facts contained in the certificate. j. Service Contract The Parties intend this Agreement to be a "service contract" within the meaning of Section 7701(e)(3) of the Internal Revenue Code of 1986. Purchaser will not take the. position on any tax return or in any other filings suggesting that it is anything other than a purchase of electricity from the System k. No Partnership No provision of this Agreement shall be construed or represented as creating a partnership, trust, joint venture, fiduciary or any similar relationship between the Parties. No Party is authorized to act on behalf of the other Party, and neither shall be considered the agent of the other. Full Agreement, Modification, Invalidity, Counterparts, Captions This Agreement, together with any Exhibits, completely and exclusively states the agreement of the parties regarding its subject matter and supersedes all prior proposals, agreements, or other communications between the parties, oral or written, regarding its subject matter. This Agreement may be modified only by a writing signed by both Parties. If any provision of this Agreement is found unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole.' In such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law. This Agreement may be executed in any number of separate counterparts and each counterpart shall be considered an original and together shall comprise the same Agreement. The captions or headings in this Agreement are strictly for convenience and shall not be considered in interpreting this Agreement. M. Forward Contract The transaction contemplated under this Agreement constitutes a "forward contract" within the meaning of the United States Bankruptcy Code, and the Parties further acknowledge and agree that each Party is a "forward contract merchant" within the meaning of the Untied States Bankruptcy Code. n. No Third Party Beneficiaries Except as otherwise expressly provided herein, this Agreement and all rights hereunder are intended for the sole benefit of the Parties hereto and shall not imply or create any rights on the part of, or obligations to, any other Person. End of Document Solar Power Purchase Agreement v.2009I015 18 SolarCty. First Amendment to Solar Power Purchase Agreement (Commercial OR/CA -JR MASH) Purchaser: Seller: Name Rosemead Housing Development Name SolarCity Corporation and Corporation (Garvey) and 393 Vintage Park Drive, Suite 140 Address 8838 E Valley Blvd. Address Foster City, CA 94404 Rosemead, CA 91770 Attention: Contract Administration Attention: Gary Taylor, President Property Manager: Levine Management Group, Inc. Phone 626 -569 -2100 Phone (650) 638 -1028 Fax -626- 307 -9218 Fax (650) 638 -1029 E -mail etavlorOcitvofrosemead.onz E -mail ContmctAdministmtor @solarcity.com Purchaser ® owns the Facility Contractor's License Numbers (check one) ❑ leases the Facility CA: CSLB 888104 CO: CO EC 8041 OR: CCB 180498 This First Amendment (the "First Amendment ") is to that certain Solar Power Purchase Agreement dated November i tT , 2010 (the "Agreement") between SolarCity Corporation ( "Seller ") and Rosemead Housing Development Corporation (the "Purchaser "), is amended effective as of the date signed by Seller below (the "Effective Date ") and is hereby amended as follows: The following party is added to the Agreement: 1. Levine Management Group, Inc. (Property Manager) If a conflict or inconsistency arises between the provisions of this First Amendment and the Solar Power Purchase Agreement, the provisions of this First Amendment shall prevail. Rosemead Housing Develop Cor oral' Signature: Printed Name: SolarCity Corp lion: Signature: Printed Name: o A V t 0 WHITE Date: l%I1U 1 10 Title: C_ F0 Date: // / / U LEGAL, First Amendment to the Solar Power Purchase Agreement I _ I OATf. 41 1 1� 1 13 ya66 SOIaru Solar Power Purchase Agreement (Commercial OR/CA -JR MASH) This Solar Power Purchase Agreement (this "Agreement ") is entered into by the parties listed below (each a "Party" and collectively the "Parties ") as of the date signed by Seller below (the "Effective Date "). Purchaser: System Description Seller: LEGAL APPROVED Name Rosemead Housing Development Name SohtrCity Corporation and Corporation and 393 Vintage Park Drive, Suite 140 Address 8838 E Valley Blvd. Address Foster City, CA 94404 Rosemead, CA 91770 Exhibit 6 Attention: Lease /License Administrator Attention: Gary Taylor, President Exhibit 7 Phone 626 -569 -2100 Phone (650) 638 -1028 Fax 626- 307 -9218 Fax (650) 638 -1029 E -mail gtavlor'ncityofrosemead.org E -mail LeaseAdministrator @solarcity.com Purchaser ® owns the Facility (check one) leases the Facility i This Agreement sets forth the terms and conditions of the purchase and sale of solar generated electric energy from the solar panel system described in Exhibit 2 (the `System ") and installed at the Purchaser's facility described in Exhibit 3 (the "Facility"). The exhibits listed below are incorporated by reference and made part of this Agreement. Exhibit 1 „ Pricing Attachment Exhibit 2 System Description LEGAL APPROVED Exhibit 3 Purchaser's Facility Exhibit 4 Delivery Point Exhibit 5 License Area INITIAL Exhibit 6 Memorandum of License Exhibit 7 General Terms and Conditions (Revised July 11, 1009) DATE Purchasei Signature: Printed Nt Title: President Date: SolarCity Co ottt A � Signature: Printed Name: 1V Ad t D W ti t T E Title: CFO Date: / — �`5 Exhibit 1 Pricing Attachment 1. Term: Twenty (20) years, beginning on the Commercial Operation Date. 2. Additional Terms: Up to Two (2) Additional Terms of Five (5) years each. 3. Environmental Incentives and Environment Attributes Accrue to Seller. 4. Contract Price: YEAR CONTRACT PRICE PER KWH 1 $0.0500 2 $0.0500 3 $0.0500 4 $0.0500 5 $0.0500 6 $0.0500 7 $0.0500 8 $0.0500 9 $0.0500 10 $0.0500 II 50.0500 12 $0.0500 13 $0.0500 14 $0.0500 is $0.0500 16 $0.0500 l7 $0.0500 18 $0.0500 19 $0.0500 20 $0.0500 5. Condition Satisfaction Date: March 31, 2011 6. Anticipated Commercial Operation Date: August 31, 2011 7. Outside Commercial Operation Date: September 30, 2011 8. Purchase Option Price YEAR PURCHASE PRICE 5 $22,255 10 $18,184 20 Fair Market Value 9. Termination Value: YEAR TERMINATION VALUE 1 $22,354 2 $21,606 3 $20,831 4 $20,025 Solar Power Purchase Agreement v. 20091015 (JR MASH) ® 2009 SolarCiry. All Rights Reserved 5 $19,189 6 $18,320 7 $17,416 8 $16,477 9 $15,500 l0 $14,482 Il $13,423 12 $12,320 13 $11,171 14 $9,973 15 $8,724 16 $7,421 17 $6,061 18 $4,643 19 $3,162 20 $0 In addition to the amounts payable by Purchaser stated above Purchaser shall also pay to Seller an amount equal to any recapture of any Environmental Incentives and Tax Credits. 10. Reserved. Solar Power Purchase Agreement v. 20091015 (1R MASH) ® 2009 SolarCity. All Rights Reserved Exhibit 2 System Description 1. System Location: 2417 Angelus Ave Rosemead, CA 91770 2. System Size (DC kVV): 27.140 3. Expected First Year Energy Production: 37,310 4. Scope: Tum -Key solar installation * System size (kW): 27.14 kw * 1st year kWh production: 37,310 5. Expected Module(s): QUANTITY MAKE MODEL STC WATTS PTC WATTS 118 Yingli Green Energy YL230P -29b 230.0 W 206.6 W 6. Expected Inverter(s): QUANTITY MAKE MODEL RATED POWER EFFICIENCY 2 Fronius USA IG PLUS 11.4 -3 DELTA -208 11.40 kW 95.0 7. Expected Structure: Roof Mount 8. Includes: Turn-key installation 9. Excludes: Structural or electrical upgrades and trenching Solar Power Pcrchase Ageernent v.20091002 (JR MASH) Exhibit 3 Purchaser's Facility A PARCEL OF LAND LOCATED IN THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, WITH A SITUS ADDRESS OF 2417 ANGELUS AVE, ROSEMEAD CA 91770 -3666 CURRENTLY OWNED BY ROSEMEAD CITY HAVING A TAX ASSESSOR NUMBER OF 5283 - 020 -908 AND BEING THE SAME PROPERTY MORE FULLY DESCRIBED AS TR= 4610'FOR DESC SEE ASSESSOR'S MAPS LOT 11. Solar Power Purchase Agreement v.2009I002 (!R MASH) .l v.F4, p C p + � c _. - �- . . . A. \ \ :� \} \ \<\ .6 k . !�\ ` . \ \, � 7 - » - . T-rm Exhibit 6 Memorandum of License RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: SolarCity Corporation 393 Vintage Park Drive, Suite 140 Foster City, CA 94404 Attention: Lease /License Administrator use) MEMORANDUM OF LICENSE THIS MEMORANDUM OF LICENSE is made and entered into this 15+1, day of galeMBgR 2010, (the "Effective Date ") by and between Rosemead Housing Development Corporation, whose address is 2417 Angelus Ave Rosemead, CA 91770 ( "Licensor "), and SOLARCITY CORPORATION, whose address is 393 Vintage Park Drive, Suite 140, Foster City, CA 94404 ( "Licensee "). A. Licensor is the owner of certain real property ( "Premises "), located in the County of LOS ANGELES, State of California, described in Exhibit A attached to and incorporated herein by reference. B. Licensor and Licensee have entered into a Solar Power Purchase Agreement dated on or about the Effective Date (the "Agreement ") under which Licensee is selling energy generated by a photovoltaic electric generating system (the "System ") to Licensor. The Agreement is for a term of Twenty (20) years, beginning on the Effective Date and ending on the Twenty (20) year anniversary of the Commercial Operation Date with an option to extend the Agreement for up to Two (2) extended terms of Five (5) years each. Pursuant to the Agreement, Licensor has granted Licensee an irrevocable, non - exclusive license ( "License ") over the Premises for the purposes and on the terms set forth in the Agreement. Licensor and Licensee agree as follows: 1. Licensor hereby grants to Licensee the License over the Premises on and subject to the terms and conditions set forth in the Agreement which is incorporated herein by reference. 2. The term of the License begins on the Effective Date and continues until one hundred and twenty (120) days after the termination of the Agreement. 3. This Memorandum of License shall not be deemed to modify, alter or amend in any way the provisions of the License or the Agreement. In the event of any conflict between the terms of the License and/or the Agreement and this Memorandum, the terms of the License and/or the Agreement, as applicable, shall control. The undersigned have executed this Memorandum of License as of the date first written above. LICENSOR Rosemead Housing Development Corporation By Name: Gary avlor Title: President LICENSEE SOLARCITY CORPORATION By: \ 1 Name: MAVtZ w%-ttTE Title: c.F0 [REMAINDER OFPAGE INTENTIONALLYLEFT BLANK ACKNOWLEDGEMENT PAGE FOLLOWS] Solar Power Purchase Agreement v.20091015 STATE OF CALIFORNIA) COUNTY OF LQ 3S ) ss. On it J( j a before meS L.fe�Sf'frN.s�'w (' , Notary Public, personally appeared O Av "' �'` ^��� , who proved to me on the basis of satisfactory evidence to be the person(5j whose name(s) is/are-subscribed to the within instrument and acknowledged to me that he/sh*Mmy executed the same in his/her# heir authorized capacity(ies), and that by hivber/ftr signature,(s) on the instrument the person(sl, or the entity upon behalf of which the person(3facted, executed the instrument. correct. I certify under PENALTY OF PERJURY under the laws of the State of Califomiathat the foregoing paragraph is true and WITNESS my hand and official seal. Signature of Notary Public STATE OF CALIFORNIA) COUNTY OF LOS ANGELES ) ss. W s. S.L. FENSTERMAKER N , '� COMM. H 1890335 A NOTARY PUBLIC - CALIFORNIA Ul O SAN MATEO COUNTY N II My C==aisson Expires May 21.2014 '? On {gOd &1'14x! br7Dt0 , before me, GlontA � lk , Notary Public, personally appeared G �_ , who proved to me on the basis of satisfactory evidence to be the persort("hose name(B) isiare subscribed to in instrument and acknowledged to me that he /sheAkey executed the same in his/heek terr authorized capacity(ies), and that by his/herkhetr signature(s) on the instrument the perso*), or the entity upon behalf of which the person�*j executed the instrument. correct. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and WITNESS my hand and official seal. y)Il A n� Q Signature of Notary Public GLORIA MOLLEOA Commission # 1192979 d Notary PublIC • Callldinid , I Los Angeles County M Comm. Ex iresA r 2, 21112 Solar Power Purchase Agreement v.20091015 Exhibit A To Memorandum of License Legal Description of Premises That certain real property located in the County of LOS ANGELES, State of California described as follows: A PARCEL OF LAND LOCATED IN THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, WITH A SITUS ADDRESS OF 2417 ANGELUS AVE, ROSEMEAD CA 91770 -3666 CURRENTLY OWNED BY ROSEMEAD CITY HAVING A TAX ASSESSOR NUMBER OF 5283- 020 -908 AND BEING THE SAME PROPERTY MORE FULLY DESCRIBED AS TR= 4610'FOR DESC SEE ASSESSOR'S MAPS LOT 11. Solar Power Purchase Agreement v.20091015 Exhibit 7 Solar Power Purchase Agreement General Terms and Conditions Revised July 21, 2009 (JR Mash Version) 1. Definitions and Interpretation Unless otherwise defined or required by the context in which any term appears: (a) the singular includes the plural and vice versa; (b) the words "herein," "hereof' and "hereunder" refer to this Agreement as a whole and not to any particular section or subsection of this Agreement; (c) references to any agreement, document or instrument mean such agreement, document or instrument as amended, modified, supplemented or replaced from time to time; and (d) the words "include," "includes" and "including" mean include, includes and including "without limitation." The captions or headings in this Agreement are strictly for convenience and shall not be considered in interpreting this Agreement. 2. Purchase and Sale of Electricity Purchaser shall purchase from Seller, and Seller shall sell to Purchaser, all of the electric energy generated by the System during the Initial Term and any Additional Term (as defined in Exhibit 1 , and collectively the "Term "). Electric energy generated by the System will be delivered to Purchaser at the delivery point identified on Exhibit 4 (the "Delivery Point "). Purchaser shall take title to the electric energy generated by the System at the Delivery Point, and risk of loss will pass from Seller to Purchaser at the Delivery Point. Purchaser may purchase electric energy for the Facility from other sources if the Purchaser's electric requirements at the Facility exceed the output of the System. 3. Term and Termination a. Initial Term The initial term ( "Initial Term ") of this Agreement shall commence on the Commercial Operation Date (as defined below) and continue for the length of time specified in Exhibit 1 , unless earlier terminated as provided for in this Agreement. The "Commercial Operation Date" is the date Seller gives Purchaser written notice that the System is mechanically complete and capable of providing electric energy to the Delivery Point. Upon Purchaser's request, Seller will give Purchaser copies of certificates of completion or similar documentation from Seller's contractor and the interconnection or similar agreement with the Utility. This Agreement is effective as of the Effective Date and Purchaser's failure to enable Seller to provide the electric energy by preventing it from installing the System or otherwise not performing shall not excuse Purchaser's obligations to make payments that otherwise would have been due under this Agreement. b. Additional Terms If Purchaser has not exercised its option to purchase the System by the end of the Initial Term, either Party may give the other Party written notice of its desire to extend this Agreement on the, terms and conditions set forth herein for the number and length of additional periods specified in Exhibit i (each an "Additional Term "). Such notice shall be given, if at all, not more than one hundred twenty (120) and not less than sixty (60) days before the last day of the Initial Term or the then current Additional Term, as applicable. The Party receiving the notice requesting an Additional Term shall respond positively or negatively to that request in writing within thirty (30) days after receipt of the request. Failure to respond within such thirty (30) day period shall be deemed a rejection of the offer for an Additional Term. If both Parties agree to an Additional Term, the Additional Term shall begin immediately upon the conclusion of the then current term or Additional Term on the same terms and conditions as set forth in this Agreement. If the Party receiving the request for an Additional Term rejects or is deemed to reject the first Party's offer, this Agreement shall terminate at the end of the Initial Term (if the same has not been extended) or the then current Additional Term. 4. Billing and Pavment a. Monthly Charges Purchaser shall pay Seller monthly for the electric energy generated by the System and delivered to the Delivery Point at the $/kWh rate shown in Exhibit 1 (the "Contract Price"), The monthly payment for such energy will be equal to the applicable $ /kWh rate multiplied by the number of kWh of energy generated during the applicable month, as measured by the System meter. b. Monthly Invoices Seller shall invoice Purchaser monthly. Such monthly invoices shall state (i) the amount of electric energy produced by the System and delivered to the Delivery Point, (ii) the rates applicable to, and charges incurred by, Purchaser under this Agreement and (iii) the total amount due from Purchaser. Solar Power Purchase Agreement x.20091015 C. Utility Invoices Purchaser shall authorize the Utility to send to Seller duplicates of any bills sent to Purchaser. If Utility does not permit duplicate bills to be sent to Seller, Purchaser shall, promptly upon receipt of each bill, make a photocopy of each bill and mail the copy to Seller. Purchaser shall pay all charges assessed by the Utility to the Facility. e. Taxes. Purchaser shall either pay or reimburse Seller for any and all taxes assessed on the generation, sale, delivery or consumption of electric energy produced by the System or the interconnection of the System to the Utility's electric distribution system, including property taxes on the System; provided, however Purchaser will not be required to pay or reimburse Seller for any taxes during periods when Seller fails to deliver electric energy to Purchaser for reasons other than Force Majeure. For purposes of this Section 4(c) "Taxes" means any federal, state and local ad valorem, property, occupation, generation, privilege, sales, use, consumption, excise, transaction, and other taxes, regulatory fees, surcharges or other similar charges but shall not include any income taxes or similar taxes imposed on net revenues imposed on Seller due to the sale of energy under this Agreement, which shall be Seller's responsibility. f. Payment Terms All amounts due under this Agreement shall be due and payable net twenty (20) days from receipt of invoice. Any undisputed portion of the invoice amount not paid within the twenty (20) day period shall accrue interest at the annual rate of two and one -half percent (2.5 %) over the Prime Rate (but not to exceed the maximum rate permitted by law). 5. Environmental Attributes and Environmental Incentives Unless otherwise specified on Exhibit I Seller is the owner of all Environmental Attributes and Environmental Incentives and is entitled to the benefit of all Tax Credits, and Purchaser's purchase of electricity under this Agreement does not include Environmental Attributes, Environmental Incentives or the right to Tax Credits or any other attributes of ownership and operation of the System, all of which shall be retained by Seller. Purchaser shall cooperate with Seller in obtaining, securing and transferring all Environmental Attributes and Environmental Incentives and the benefit of all Tax Credits, including by using the electric energy generated by the System in a manner necessary to qualify for such available Environmental Attributes, Environmental Incentives and Tax Credits. Purchaser shall not be obligated to incur any out —of— pocket costs or expenses in connection with such actions unless reimbursed by Seller. If any Environmental Incentives are paid directly to Purchaser, Purchaser shall immediately pay such amounts over to Seller. To avoid any conflicts with fair trade rules regarding claims of solar or renewable energy use, Purchaser, if engaged in commerce and/or trade, shall submit to Seller for approval any press releases regarding Purchaser's use of solar or renewable energy and shall not submit for publication any such releases without the written approval of Seller. Approval shall not be unreasonably withheld, and Seller's review and approval shall be made in a timely manner to permit Purchaser's timely publication. "Environmental Attributes" means any and all credits, benefits, emissions reductions, offsets, and allowances, howsoever entitled, attributable to the System, the production of electrical energy from the System and its displacement of conventional energy generation, including (1) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOX), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbon dioxide (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride and other greenhouse gases (GHGs) that have been determined by the United Nations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to the actual or potential threat of altering the Earth's climate by trapping heat in the atmosphere; and (3) the reporting rights related to these avoided emissions, such as Green Tag Reporting Rights and Renewable Energy Credits. Green Tag Reporting Rights are the right of a party to report the ownership of accumulated Green Tags in compliance with federal or state law, if applicable, and to a federal or state agency or any other party, and include Green Tag Reporting Rights accruing under Section 1605(b) of The Energy Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and international or foreign emissions trading program. Environmental Attributes do not include Environmental Incentives and Tax Credits. Purchaser and Seller shall file all tax returns in a manner consistent with this Paragraph 5. Without limiting the generality of the foregoing, Environmental Attributes include carbon trading credits, renewable energy credits or certificates, emissions reduction credits, investment credits, emissions allowances, green tags, tradeable renewable credits and Green -e® products. "Environmental Incentives" means any and credits, rebates, subsidies, payments or other incentives that relate to self — generation of electricity, the use of technology incorporated into the System, environmental benefits of using the System, or other similar programs available from the Utility, any other regulated entity, the manufacturer of any part of the System or any Governmental Authority. "Governmental Authority" means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasi- govemmental, judicial, public or statutory instrumentality, authority, Solar Power Purchase Agreement v.20091015 body, agency, bureau or entity (including the Federal Energy Regulatory Commission or the California Public Utilities Conunission), or any arbitrator with authority to bind a party at law. "Tax Credits" means any and all (i) investment tax credits, (ii) production tax credits and (iii) similar tax credits under federal, state or local law relating to the construction, ownership or production of energy from the System. 6. Conditions to Obligations a. Conditions to Seller's Obligations Seller's obligations under this Agreement are conditioned on the completion of the following conditions to Seller's reasonable satisfaction on or before the Condition Satisfaction Date: Completion of a physical inspection of the Facility and the property upon which the Facility is located (the "Premises ") including, if applicable, geotechnical work, and real estate due diligence to confirm the suitability of the Facility and the Premises for the System; ii. Approval of (i) this Agreement and (ii) the Construction Agreement (if any) for the System by Seller's Financing Parties. "Construction Agreement" as used in this subsection means an agreement between SolarCity and a subcontractor to install the System. iii. Confirmation that Seller will obtain all applicable Environmental Incentives and Tax Credits; iv. Receipt of all necessary zoning, land use and building permits; and V. Execution of all necessary agreements with the Utility for interconnection of the System to the Utility's electric distribution system. vi. Prior to Seller commencing construction and installation of the System, Purchaser shall give Seller proof of insurance for all insurance required to be maintained by Purchaser under this Agreement. b. Conditions to Purchaser's Obligations Purchaser's obligations under this Agreement are conditioned on the occurrence of the Commercial Operation Date for the System on or before the Outside Commercial Operation Date (See Exhibit 1 . C. Failure of Conditions If any of the conditions listed in subsections a) or b) above are not satisfied by the applicable dates specified in those subsections, the Parties will attempt in good faith to negotiate new dates for the satisfaction of the failed conditions. If the parties are unable to negotiate new dates then the Party that has not failed to meet an obligation may terminate this Agreement upon ten (10) days written notice to the other Party without liability for costs or damages or triggering a default under this Agreement. 7. Seller's Rights and Obligations a. Permits and Approvals Seller, with Purchaser's reasonable cooperation, shall use commercially reasonable efforts to obtain, at its sole cost and expense: i. any zoning, land use and building permits required to construct, install and operate the System; and if. any agreements and approvals from the Utility necessary in order to interconnect the System to the Utility's electric distribution system. Purchaser shall cooperate with Seller's reasonable requests to assist Seller in obtaining such agreements, permits and approvals. b. Standard System Repair and Maintenance Seller shall construct and install the System at the Facility and shall use reasonable efforts to ensure that the System is performing to specifications. During the Term, Seller will operate and perform all routine and emergency repairs to and maintenance of the System at its sole cost and expense, except Soler Power Purchase Agreement v.20091015 for any repairs or maintenance resulting from Purchaser's negligence, willful misconduct or breach of this Agreement or the Site Lease (if applicable). Setter shall not be responsible for any work done by others on any part of the System unless Seller authorizes that work in advance in writing. Seller shall not be responsible for any loss, damage, cost or expense arising out of or resulting from improper environmental controls or improper operation or maintenance of the System by anyone other than Seller or Seller's contractors. _If the System requires repairs for which Seller is not responsible, Purchaser shall pay Seller for diagnosing and correcting the problem at Seller or Seller's contractors' then current standard rates. Seller shall provide Purchaser with reasonable notice prior to accessing the Facility to make standard repairs. C. Non- Standard System Repair and Maintenance If Seller incurs incremental costs to maintain the System due to conditions at the Facility or due to the inaccuracy of any information provided by Purchaser and relied upon by Seller, the pricing, schedule and other terms of this Agreement will be equitably adjusted to compensate for any work in excess of normally expected work required to be performed by Seller. In such event, the Parties will negotiate such equitable adjustment in good faith. d. Breakdown Notice Seller shall notify Purchaser within twenty-four (24) hours following Seller's discovery of (a) any material malfunction in the operation of the System or (b) an interruption in the supply of electrical energy from the System. Purchaser and Seller shall each designate personnel and establish procedures such that each Party may provide notice of such conditions requiring Seller's repair or alteration at all times, twenty-four (24) hours per day, including weekends and holidays. Purchaser shall notify Seller immediately upon the discovery of an emergency condition affecting the System. e. Suspension Notwithstanding anything to the contrary herein, Seller shall be entitled to suspend delivery of electricity from the System to the Delivery Point for the purpose of maintaining and repairing the System and such suspension of service shall not constitute a breach of this Agreement; provided, that Seller shall use commercially reasonable efforts to minimize any interruption in service to the Purchaser. I. Use of Contractors and Subcontractors Seller shall be permitted to use contractors and subcontractors to perform its obligations under this Agreement. However, Seller shall continue to be responsible for the quality of the work performed by its contractors and subcontractors. If a list of pre — approved contractors and subcontractors is desired, such list shall be scheduled on an appendix to Exhibit 7 . All Contractors and subcontractors other than those that may be scheduled on an appendix to Exhibit 7 shall be subject to Purchaser's prior written consent, not to be unreasonably withheld. g. Liens and Payment of Contractors and Suppliers Seller shall pay when due all valid charges from all contractors, subcontractors and suppliers supplying goods or services to Seller under this Agreement and shall keep the Facility free and clear of any liens related to such charges, except for those liens which Seller is permitted by law to place on the Facility following non - payment by Purchaser of amounts due under this Agreement. Seller shall indemnify and defend Purchaser for and from all claims, losses, damages, liabilities and expenses resulting from any liens filed against the Facility or the Premises in connection with such charges; provided, however that Seller shall have the right to contest any such lien, so long as it provides a statutory bond or other reasonable assurances of payment that either remove such lien from title to the Facility and the Premises or that assure that any adverse judgment with respect to such lien will be paid without affecting title to the Facility and the Premises. h. No Warrantv NO WARRANTY OR REMEDY, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE SHALL APPLY. The remedies set forth in this Agreement shall be Purchaser's sole and exclusive remedies for any claim or liability arising out of or in connection with this Agreement, whether arising in contract, tort (including negligence), strict liability or otherwise. Installation Damage. Seller shall repair any damage to the Facility it causes in the preparation, installation, or maintenance of the System. 8. Purchaser Rights and Obligations a. Facility Access Rights Purchaser grants to Seller and to Seller's agents, employees and contractors an irrevocable non - exclusive license running with the Premises (the "License ") for access to, on, over, under and across the Premises as more particularly described in Exhibit 5 (the "License Area ") for the purposes of (a) installing, constructing, operating, owning, maintaining, accessing, removing and replacing the System; (b) performing all of Seller's obligations and enforcing all of Seller's rights set forth in this Agreement; and (c) installing, using and Solu Power Purchase Agreement v.20091015 7 maintaining electric lines and equipment, including inverters and meters, necessary to interconnect the System to Purchaser's electric system at the Facility and/or to the utility's electric distribution system or that otherwise may from time to time be useful or necessary in connection with the construction, installation, operation, maintenance or repair of the System. Seller shall notify Purchaser prior to entering the Facility except in situations where there is imminent risk of damage to persons or property. The term of the License shall continue until the date that is one hundred and twenty (120) days following the date of expiration or termination of this Agreement (the "License Term "). During the License Term, Purchaser shall ensure that Seller's rights under the License and Seller's access to the License Area are preserved and protected and shall not interfere with or permit any thud parties to interfere with such rights or access. The grant of the License shall survive termination of this agreement by either Party. Purchaser agrees that Seller may record a memorandum of license in substantially the same form attached hereto as Exhibit 6 in the land records respecting the License. b. OSHA Compliance Purchaser shall ensure that all Occupational Safety and Health Act (OSHA) requirements and other similar applicable safety laws or codes are adhered to in its performance under this Agreement. C. Maintenance of Facility Purchaser shall, at its sole cost and expense, maintain the Facility in good condition and repair. Purchaser will ensure that the Facility remains interconnected to the local utility grid at all times and will not permit cessation of electric service to the Facility from the local utility. Purchaser is fully responsible for the maintenance and repair of the Facility's electrical system and of all of Purchaser's equipment that utilizes the System's outputs. Purchaser shall properly maintain in full working order all of Purchaser's electric supply or generation equipment that Purchaser may shut down while utilizing the System. Purchaser shall promptly notify Seller of any matters of which it is aware pertaining to any damage to or loss of use of the System or that could reasonably be expected to adversely affect the System. d. No Alteration of Facility Purchaser shall not make any alterations or repairs to the Facility which may adversely affect the operation and maintenance of the System without Seller's prior written consent. If Purchaser wishes to make such alterations or repairs, Purchaser shall give prior written notice to Seller, setting forth the work to be undertaken (except for emergency repairs, for which notice may be given by telephone), and give Seller the opportunity to advise Purchaser in making such alterations or repairs in a manner that avoids damage to the System, but, notwithstanding any such advice, Purchaser shall be responsible for all damage to the System caused by Purchaser or its contractors. To the extent that temporary disconnection or removal of the System is necessary to perform such alterations or repairs, such work and any replacement of the System after completion of Purchaser's alterations and repairs, shall be done by Seller or its contractors at Purchaser's cost. All of Purchaser's alterations and repairs will be done in a good and workmanlike manner and in compliance with all applicable laws, codes and permits. Outaees Purchaser shall be permitted to be off line for two (2) full twenty-four (24) hour days (each, a "Scheduled Outage ") per calendar year during the Term, during which days Purchaser shall not be obligated to accept or pay for electricity from the System; provided, however that Purchaser must notify Seller in writing of each such Scheduled Outage at least forty-eight (48) hours in advance of the commencement of a Scheduled Outage. In the event that Scheduled Outages exceed two (2) days per calendar year or there are unscheduled outages, in each case for a reason other than a Force Majeure event, Seller shall reasonably estimate the amount of electricity that would have been delivered to Purchaser during such excess Scheduled Outages or unscheduled outages and shall invoice Purchaser for such amount in accordance with Section 4 . Liens Purchaser shall not directly or indirectly cause, create, incur, assume or allow to exist any mortgage, pledge, lien, charge, security interest, encumbrance or other claim of any nature on or with respect to the System or any interest therein. Purchaser shall immediately notify Seller in writing of the existence of any such mortgage, pledge, lien, charge, security interest, encumbrance or other claim, shall promptly cause the same to be discharged and released of record without cost to Seller, and shall indemnify Seller against all costs and expenses (including reasonable attorneys' fees) incurred in discharging and releasing any such mortgage, pledge, lien, charge, security interest, encumbrance or other claim. g. Securi . Purchaser shall be responsible for maintaining the physical security of the License Area and for any damage or vandalism to the System as a result of failure to maintain such security. Purchaser will not conduct activities on, in or about the License Area or the Facility that have a reasonable likelihood of causing damage, impairment or otherwise adversely affecting the System. Purchaser shall provide and take reasonable measures for security of the System, including commercially reasonable monitoring of the Facility's alarms. h. Insulation Purchaser understands that unobstructed access to sunlight ( " Insulation ") is essential to Seller's performance of its obligations and a material term of this Agreement. Purchaser shall not in any way cause and, Solar Power Purchase Agreement v.20091015 8 where possible, shall not in any way permit any interference with the System's Insolation. If Purchaser becomes aware of any activity or condition that could diminish the Insolation of the System, Purchaser shall notify Seller immediately and shall cooperate with Seller in preserving the System's existing Insolation levels. The Parties agree that reducing Insolation would irreparably injure Seller, that such injury may not be adequately compensated by an award of money damages, and that Seller is entitled to seek specific enforcement of this Section 8(h) against Purchaser. L Data Line Purchaser shall provide Seller a high speed interact data line during the Term to enable Seller to record the electric energy generated by the System. If Purchaser fails to provide such high speed intemet data line, or if such line ceases to function and is not repaired, Seller may reasonably estimate the amount of electric energy that was generated and invoice Purchaser for such amount in accordance with Section 4 . j. Breakdown Notice Purchaser shall notify Seller within twenty -four (24) hours following the discovery by it of (A) any material malfunction in the operation of the System; or (B) any occurrences that could reasonably be expected to adversely affect the System. Purchaser shall notify Seller immediately upon (A) an interruption in the supply of electrical energy from the System; or 0) the discovery of an emergency condition respecting the System. Purchaser and Seller shall each designate personnel and establish procedures such that each Party may provide notice of such conditions requiring Seller's repair or alteration at all times, twenty-four (24) hours per day, including weekends and holidays. 9. Reserved 10. Relocation of Svstem If Purchaser ceases to conduct business operations at and/or vacates the Facility or is prevented from operating the System at the Facility prior to the expiration of the Term, Purchaser shall have the option to provide Seller with a mutually agreeable substitute premises located within the same Utility district as the terminated System or in a location with similar Utility rates and Insolation. Purchaser shall provide at least sixty (60) but not more than one hundred eighty (180) days prior written notice prior to the date that it wants to make this substitution. In connection with such substitution, Purchaser shall execute an amended agreement that shall have all of the same terms as this Agreement except for the (i) Effective Date; (ii) License, which will be amended to grant rights in the real property where the System relocated to; and (iii) Term, which will be the remainder of the Term of this Agreement and such amended agreement shall be deemed to be a continuation of this Agreement without termination. Purchaser shall also provide any new Purchaser, owner, lessor or mortgagee consents or releases required by Seller or Seller's Financing Parties in connection with the substitute facility. Purchaser shall pay all costs associated with relocation of the System, including all costs and expenses incurred by or on behalf of Seller in connection with removal of the System from the Facility and installation and testing of the System at the substitute facility and all applicable interconnection fees and expenses at the substitute facility, as well as costs of new title search and other out -of- pocket expenses connected to preserving and refiling the security interests of Seller's Financing Parties in the System. Seller shall remove the System from the vacated Facility prior to the termination of Purchaser's ownership, lease or other rights to use such Facility. Seller will not be required to restore the Facility to its condition at the time the System was installed but shall promptly pay Purchaser for any damage caused by Seller during removal of the System, but not for normal wear and tear. If the substitute facility has inferior Insolation as compared to the original Facility, Seller shall have the right to make an adjustment to Exhibit 1 such that Purchaser's payments to Seller are the same as if the System were located at the original Facility. If Purchaser is unable to provide such substitute Facility and to relocate the System as provided, any early termination will be treated as a default by Purchaser. 11. Removal of System at Expiration Upon the expiration or earlier termination of this Agreement (provided Purchaser does not exercise its purchase option), Seller shall, at its expense, remove all of its tangible property comprising the System from the Facility on a mutually convenient date but in no event later than ninety (90) days after the expiration of the Term. The Facility shall be returned to its original condition, except for ordinary wear and tear. In no case shall Seller's removal of the System affect the integrity of Purchaser's roof, which shall be as leak proof as it was prior to removal of the System. Seller shall leave the Facility in neat and clean order. If Seller fails to remove or commence substantial efforts to remove the System by such agreed upon date, Purchaser shall have the right, at its option, to remove the System to a public warehouse and restore the Facility to its original condition (other than System mounting pads or other support structures and ordinary wear and tear) at Seller's cost. Purchaser shall provide sufficient space for the temporary storage and staging of tools, materials and equipment and for the parking of construction crew vehicles and temporary construction trailers and facilities reasonably necessary during System removal. 12. Measurement Solar Power Purchase Agreement v.20091015 Electricity delivered to the Facility shall be measured by the SolarGuard monitoring system installed and maintained by Seller as part of the System. 13. Default, Remedies and Damages a. Default Any Party that fails to perform its responsibilities as listed below or experiences any of the circumstances listed below shall be deemed a "Defaulting Party" and each event of default shall be a "Default Event ": (1) failure of a Party to pay any amount due and payable under this Agreement, other than an amount that is subject to a good faith dispute, within ten (10) days following receipt of written notice from the other Party (the "Non- Defaulting Party") of such failure to pay ( "Payment Default "); (2) failure of a Party to substantially perform any other material obligation under this Agreement within thirty (30) days following receipt of written notice from the Non - Defaulting Party demanding such cure; provided, that such thirty (30) day cure period shall be extended (but not beyond ninety (90) days) if and to the extent reasonably necessary to cure the Default Event, if (i) the Defaulting Party initiates such cure with the thirty (30) day period and continues such cure to completion and (ii) there is no material adverse affect on the Non - Defaulting Party resulting from the failure to cure the Default Event; (3) if any representation or warranty of a Party proves at any time to have been incorrect in any material respect when made and is material to the transactions contemplated hereby, if the effect of such incorrectness is not cured within thirty (30) days following receipt of written notice from the Non - Defaulting Party demanding such cure; (4) Purchaser loses its rights to occupy and enjoy the Premises; or (5) a Parry, or its guarantor, becomes insolvent or is a party to a bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding -up or relief of debtors, or any general assignment for the benefit of creditors or other similar arrangement or any event occurs or proceedings are taken in any jurisdiction with respect to the Party which has a similar effect. (6) Purchaser prevents Seller from installing the System or otherwise failing to perform in a way that prevents the delivery of electric energy from the System. (Such Default Event shall not excuse Purchaser's obligations to make payments that otherwise would have been due under this Agreement.) b. Remedies (1) Remedies for Payment Default If a Payment Default occurs, the Non - Defaulting Party may suspend performance of its obligations under this Agreement. Further, the Non - Defaulting Party may pursue any remedy under this Agreement, at law or in equity, including an action for damages and termination of this Agreement, upon five (5) days prior written notice to the Defaulting Party following the Payment Default. The foregoing notice does not affect the Seller's obligations to comply with the California Government Tort Claims Act where applicable. (2) Remedies for Other Defaults On the occurrence of a Default Event other than a Payment Default, the Non - Defaulting Party may pursue any remedy under this Agreement, at law or in equity, including an action for damages and termination of this Agreement or suspension of performance of its obligations under this Agreement, upon five (5) days prior written notice to the Defaulting Party following the occurrence of the Default Event. Nothing herein shall limit either Party's right to collect damages upon the occurrence of a breach or a default by the other Party that does not become a Default Event. The foregoing notice does not affect the Seller's obligations to comply with the California Government Tort Claims Act where applicable. (3) Damages Upon Termination by Default Upon a termination of this Agreement by the Non - Defaulting Party as a result of a Default Event by the Defaulting Party, the Defaulting Party shall pay a Termination Payment to the Non - Defaulting Party determined as follows (the "Termination Payment "): . Solar Power Purchase Agreement v,20091015 10 A. Purchaser If Purchaser is the Defaulting Party and Seller terminates this Agreement, the Termination Payment to Seller shall be equal to the sum of (i) the termination value set forth in Exhibit 1 (the "Termination Value ") for such Contract Year, (ii) removal costs as provided in Section 13(b)(3)(C) and (iii) any and all other amounts previously accrued under this Agreement and then owed by Purchaser to Seller. The Parties agree that actual damages to Seller in the event this Agreement terminates prior to the expiration of the Term as the result of an Default Event by Purchaser would be difficult to ascertain, and the applicable Termination Value set forth in Exhibit 1 is a reasonable approximation of the damages suffered by Seller as a result of early termination of this Agreement. The Termination Payment shall not be less than zero. B. Seller. If Seller is the Defaulting Party and Purchaser terminates this Agreement, the Termination Payment to Purchaser shall be equal to the sum of (i) the present value (using a discount rate of 9.5 %) of the excess, if any, of the reasonably expected cost of electric energy from the Utility over the Contract Price for the reasonably expected production of the Facility for the remainder of the Initial Term or the then current Additional Term, as applicable; (ii) all costs reasonably incurred by Purchaser in re- converting its electric supply to service from the Utility; (iii) any removal costs incurred by Purchaser, and (iv) any and all other amounts previously accrued under this Agreement and then owed by Seller to Purchaser. The Termination Payment shall not be less than zero. C. Obligations Following Termination If a Non- Defaulting Party terminates this Agreement pursuant to this Section 13(b)(3)(C), then following such termination, Seller shall, at the sole cost and expense of the Defaulting Party, remove the equipment (except for mounting pads and support structures) constituting the System. The Non - Defaulting Party shall take all commercially reasonable efforts to mitigate its damages as the result of a Default Event. . 14. Representations and Warranties a. General Representations and Warranties Each Party represents and warrants to the other the following: (1) Such Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; the execution, delivery and performance by such Party of this Agreement have been duly authorized by all necessary corporate, partnership or limited liability company action, as applicable, and do not and shall not violate any law; and this Agreement is valid obligation of such Party, enforceable against such Party in accordance with its terms (except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to creditors' rights generally). (2) Such Party has obtained all licenses, authorizations, consents and approvals required by any Governmental Authority or other third party and necessary for such Party to own its assets, carry on its business and to execute and deliver this Agreement; and such Party is in compliance with all laws that relate to this Agreement in all material respects. b. Purchaser's Representations and Warranties Purchaser represents and warrants to Seller the following: (1) License Purchaser has the full right, power and authority to grant the License contained in Section 8(a) Such grant of the License does not violate any law, ordinance, rule or other governmental restriction applicable to Purchaser or the Facility and is not inconsistent with and will not result in a breach or default under any agreement by which Purchaser is bound or that affects the Facility. (2) Other Agreements Neither the execution and delivery of this Agreement by Purchaser nor the performance by Purchaser of any of its obligations under this Agreement conflicts with or will result in a breach or default under any agreement or obligation to which Purchaser is a party or by which Purchaser or the Facility is bound. Solar Power Purchase Agreement v.20091015 11 (3) Accuracy of Information All information provided by Purchaser to Seller, as it pertains to the Facility's physical configuration, Purchaser's planned use of the Facility, and Purchaser's estimated electricity requirements, is accurate in all material respects. (4) Purchaser Status Purchaser is not a public utility or a public utility holding company and is not subject to regulation as a public utility or a public utility holding company. (5) No Pool Use No electricity generated by the System will be used to heat a swimming pool. (6) Oregon Only The electricity generated by the System will be used solely for commercial and business purposes. No portion of the electricity generated will be used for personal, family, household or agricultural purposes. 15. Svstem Damage and Insurance a. System Damage (1) Seller's Obligations If the System is damaged or destroyed other than by Purchaser's negligence or willful misconduct, Seller shall promptly repair and restore the System to its pre- existing condition; provided, however, that if more than fifty percent (50 0 /6) of the System is destroyed during the last five (5) years of the Initial Term or during any Additional Term, Seller shall not be required to restore the System, but may instead terminate this Agreement, unless Purchaser agrees (i) to pay for the cost of such restoration of the System or (ii) to purchase the System "AS -IS" at the greater of (A) then current fair market value of the System and (B) the sum of the amounts described in Section 13.b(3)A)(i) (using the date of purchase to determine the appropriate Contract Year) and Section 13.b(3)A)(iii) (2) Purchaser's Obligations If the Facility is damaged or destroyed by casualty of any kind or any other occurrence other than Seller's negligence or willful misconduct, such that the operation of the System and/or Purchaser's ability to accept the electric energy produced by the System are materially impaired or prevented, Purchaser shall promptly repair and restore the Facility to its pre - existing condition; provide however that if more than five percent (5 %) of the Facility is destroyed Purchaser may elect either (i) to restore the Facility or (ii) to pay the Temdnation Value set forth in Exhibit 1 and all other costs previously accrued but unpaid under this Agreement and thereupon terminate this Agreement and take title to the System. b. Insurance Coverage At all times during the Term, Seller and Purchaser shall maintain the following insurance L Seller's Insurance Seller shall maintain (i) comprehensive general liability insurance with coverage of at least $1,000,000 per occurrence and $2,000,000 annual aggregate, (ii) employer's liability insurance with coverage of at least $1,000,000 and (iii) worker's compensation insurance as required by law. ii. Purchaser's Insurance Purchaser shall maintain (i) "all risk" property insurance on the System for the full replacement cost thereof and name Seller as a loss payee, (ii) comprehensive general liability insurance with coverage of at least $1,000,000 per occurrence and $2,000,000 annual aggregate, (iii) employer's liability insurance with coverage of at least $1,000,000 and (iv) worker's compensation insurance as required by law. - C. Policy Provisions All insurance policies provided hereunder shall (i) contain a provision whereby the insurer agrees to give the party not providing the insurance thirty (30) days (ten (10) days in the event of non - payment of premiums) written notice before the insurance is cancelled, terminated or materially altered, (ii) be written on an occurrence basis, (iii) with respect to the casualty insurance policies, name Seller as loss payee thereunder, (iv) with respect to the liability insurance policies, include the other Party as an additional insured as its interest may appear, (iv) include waivers of subrogation, (v) provide for primary coverage without right of contribution from any insurance of the other Party, and (vi) be maintained with companies either rated no less than A- as to Policy Holder's Rating in the current edition of Best's Insurance Guide or otherwise reasonably acceptable to the other party. Solar Power Purchase Agreement v.20091015 12 d. Certificates Within thirty (30) days after execution of this Agreement and upon the other Party's request and annually thereafter, each Party shall deliver the other Party certificates of insurance evidencing the above required coverage. Deductibles Unless and to the extent that a claim is covered by an indemnity set forth in this Agreement, each Party shall be responsible for the payment of its own deductibles. 16. Ownership; Option to Purchase a. Ownership of System Throughout the Term, Seller shall be the legal and beneficial owner of the System at all times, including all Environmental Attributes, and the System shall remain the personal property of Seller and shall not attach to or be deemed a part of, or fixture to, the Facility or the Premises. Each of the Seller and Purchaser agree that the Seller is the tax owner of the System and all tax filings and reports will be filed in a manner consistent with this Agreement. The System shall at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code. Purchaser covenants that it will use commercially reasonable efforts to place all parties having an interest in or a mortgage, pledge, lien, charge, security interest, encumbrance or other claim of any nature on the Facility or the Premises on notice of the ownership of the System and the legal status or classification of the System as personal property. If there is any mortgage or fixture filing against the Premises which could reasonably be construed as prospectively attaching to the System as a fixture of the Premises, Purchaser shall provide a disclaimer or release from such lienholder. If Purchaser is the fee owner of the Premises, Purchaser consents to the filing of a disclaimer of the System as a fixture of the Premises in the office where real estate records are customarily filed in the jurisdiction where the Facility is located. If Purchaser is not the fee owner, Purchaser will obtain such consent from such owner. Purchaser agrees to deliver to Seller a non - disturbance agreement in a form reasonably acceptable to Seller from the owner of the Facility (if the Facility is leased by Purchaser), any mortgagee with a lien on the Premises, and other Persons holding a similar interest in the Premises. b. Option to Purchase At the end of the fifth (5th) and tenth (10th) Contract Years and at the end of the Initial Term and each Additional Term, so long as Purchaser is not in default under this Agreement, Purchaser may exercise an option to purchase the System from Seller for a purchase price equal to (i) with respect to an option exercised at the end of the fifth (5th) or tenth (10th) Contract Years or at the end of the Initial Term, the greater of (A) the amount set forth at such time in the Purchase Option Price schedule in Exhibit 1, and (B) the Fair Market Value of the System, and (ii) with respect to an option exercised at the end of an Additional Term, the Fair Market Value of the System. The "Fair Market Value" of the System shall be determined by mutual agreement of Purchaser and Seller; provided, however if Purchaser and Seller cannot agree to a Fair Market Value within thirty (30) days after Purchaser has exercised its option, the Parties shall select an independent appraiser with experience and expertise in the solar photovoltaic industry in the County where the Facility is located to determine the Fair Market Value of the System. Such appraiser shall act reasonably and in good faith to determine the Fair Market Value of the System and shall set forth such determination in a written opinion delivered to the Parties. The valuation made by the appraiser shall be binding upon the Parties in the absence of fraud or manifest error. The costs of the appraisal shall be home by the Parties equally. Seller shall notify Purchaser of window for exercising the purchase option not less than thirty (30) days nor more than ninety (90) days prior to the start of the option period. Purchaser must then provide a notification to Seller of its intent to purchase at least ninety (90) days and not more than one hundred eighty (190) days prior to the end of the applicable Contract Year or the Initial Term or Additional Term, as applicable, and the purchase shall be complete after the end of the Contract Year but not later than 180 days after the end of the Contract year. Upon purchase of the System, Purchaser will assume complete responsibility for the operation and maintenance of the System and liability for the performance of the System, and Seller shall have no further liabilities or obligations hereunder. If the Parties are unable to agree on a negotiated System value and Purchaser determines that the appraised value is in excess of the amount that Purchaser desires to pay for the System, Purchaser may withdraw the notice to exercise the purchase option without further obligation and such withdrawal shall have no effect on any future purchase option rights. 17. Indemnification and Limitations of Liabili a. General Each Party (the "Indemnifying Party") shall defend, indemnify and hold harmless the other Party and the directors, officers, shareholders, partners, members, agents and employees of such other Party, and the respective affiliates of each thereof (collectively, the "Indemnified Parties "), from and against all loss, damage, expense, liability and other claims, including court costs and reasonable attorneys' fees (collectively, "Liabilities ") resulting from any third party actions relating to the breach of any representation or warranty set forth in Section 14 and from injury to or death of persons, and damage to or loss of property to the extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of, the Indemnifying Party (or its contractors, agents or employees) in connection with this Agreement; provided, however that nothing herein shall require the Indemnifying Party to Solar Power Purchase Agreement v.20091015 13 indemnify the Indemnified Party for any Liabilities to the extent caused by or arising out of the negligent acts or omissions of, or the willful misconduct of, the Indemnified Party. This Section Mal however, shall not apply to liability arising from any form of hazardous substances or other environmental contamination, such matters being addressed exclusively by Section 17(c) b. Notice and Participation in Third Party Claims The Indemnified Party shall give the Indemnifying Party written notice with respect to any Liability asserted by a third party (a "Claim "), as soon as possible upon the receipt of information of any possible Claim or of the commencement of such Claim. The Indemnifying Party may assume the defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party. The Indemnified Party may, however, select separate counsel if both Parties are defendants in the Claim and such defense or other form of participation is not reasonably available to the Indemnifying Party. The Indemnifying Party shall pay the reasonable attorneys' fees incurred by such separate counsel until such time as the need for separate counsel expires. The Indemnified Party may also, at the sole cost and expense of the Indemnifying Party, assume the defense of any Claim if the Indemnifying Party fails to assume the defense of the Claim within a reasonable time. Neither Party shall settle any Claim covered by this Section 17(b) unless it has obtained the prior written consent of the other Party, which consent shall not be unreasonably withheld delayed. The Indemnifying Party shall have no liability under this Section 17(b) for any Claim for which such notice is not provided if that the failure to give notice prejudices the Indemnifying Party. C. Environmental Indemnification Seller shall indemnify, defend and hold harmless all of Purchaser's Indemnified Parties from and against all Liabilities arising out of or relating to the existence at, on, above, below or near the License Area of any Hazardous Substance (as defined in Section 17(c)(i)) to the extent deposited, spilled, released or otherwise caused by Seller or any of its contractors or agents. Purchaser shall indemnify, defend and hold harmless all of Seller's Indemnified Parties from and against all Liabilities arising out of or relating to the existence at, on, above, below or near the Premises of any Hazardous Substance, except to the extent deposited, spilled, released or otherwise caused by Seller or any of its contractors or agents. Each Party shall promptly notify the other Party if it becomes aware of any deposit, spill or release of any Hazardous Substance on or about the License Area or the Premises generally. " Hazardous Substance means any chemical, waste or other substance (a) which now or hereafter becomes defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "extremely hazardous wastes," "restricted hazardous wastes," "toxic substances," "toxic pollutants," "pollution," "pollutants," "regulated substances," or words of similar import under any laws pertaining to the environment, health, safety or welfare, (b) which is declared to be hazardous, toxic, or polluting by any Governmental Authority, (c) exposure to which is now or hereafter prohibited, limited or regulated by any Governmental Authority, (d) the storage, use, handling, disposal or release of which is restricted or regulated by any Governmental Authority, or (e) for which remediation or cleanup is required by any Governmental Authority. d. Limitations on Liability , i. No Consequential Damaees Neither Party nor its directors, officers, shareholders, partners, members, agents and employees subcontractors or suppliers shall be liable for any indirect, special, incidental, exemplary, or consequential loss or damage of any nature arising out of their performance or non- performance hereunder even if advised of such. ii. Actual Damages. Except with respect to Seller's indemnification obligations pursuant to Section 17, Seller's aggregate liability under this Agreement arising out of or in connection with the performance or non - performance of this Agreement shall not exceed $33,185. The provisions of this Section (17)(d)(ii) shall apply whether such liability arises in contract, tort (including negligence), strict liability or otherwise. Any action against Seller must be brought within one (1) year after the cause of action accrues. 18. Force Maieure a. "Force Majeure" means any event or circumstances beyond the reasonable control of and without the fault or negligence of the Party claiming Force Majeure. It shall include, without limitation, failure or interruption of the production, delivery or acceptance of electricity due to: an act of god; war (declared or undeclared); sabotage; riot; insurrection; civil unrest or disturbance; military or guerilla action; terrorism; economic sanction or embargo; civil strike, work stoppage, slow -down, or lock -out; explosion; fire; earthquake; abnormal weather condition or actions of the elements; hurricane; flood; lightning; wind; drought; the binding order of any Governmental Authority (provided that such order has been resisted in good faith by all reasonable legal means); the failure to act on the part of any Solar Power Parch= Agreement x.20091015 14 Governmental Authority (provided that such action has been timely requested and diligently pursued); unavailability of electricity from the utility grid, equipment, supplies or products (but not to the extent that any such availability of any of the foregoing results from the failure of the Party claiming Force Majeure to have exercised reasonable diligence); and failure of equipment not utilized by or under the control of the Party claiming Force Majeure. b. Except as otherwise expressly provided to the contrary in this Agreement, if either Party is rendered wholly or partly unable to timely perform its obligations under this Agreement because of a Force Majeure event, that Party shall be excused from the performance affected by the Force Majeure event (but only to the extent so affected) and the time for performing such excused obligations shall be extended as reasonably necessary; rop vided that: (i) the Party affected by such Force Majeure event, as soon as reasonably practicable after obtaining knowledge of the occurrence of the claimed Force Majeure event, gives the other Party prompt oral notice, followed by a written notice reasonably describing the event; (ii) the suspension of or extension of time for performance is of no greater scope and of no longer duration than is required by the Force Majeure event; and (iii) the Party affected by such Force Majeure event uses all reasonable efforts to mitigate or remedy its inability to perform as soon as reasonably possible. Seller shall not be liable for any damage to the System or the Facility resulting from a Force Majeure event. The Term shall be extended day for day for each day performance is suspended due to a Force Majeure event. C. Notwithstanding anything herein to the contrary, the obligation to make any payment due under this Agreement shall not be excused by a Force Majeure event. d. If a Force Majeure event continues for a period of one hundred (180) days or more within a twelve (12) month period and prevents a material part of the performance by a Party hereunder, the Party not claiming the Force Majeure shall have the right to terminate this Agreement without fault or further liability to either Party (except for amounts accrued but unpaid). 19. Assignment and Financing a. Assignment This Agreement may not be assigned in whole or in part by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Seller may, without the prior written consent of Purchaser, (i) assign, mortgage, pledge or otherwise collaterally assign its interests in this Agreement to any Financing Party, (ii) directly or indirectly assign this Agreement to an affiliate of Seller, (iii) assign this Agreement to any entity through which Seller is obtaining financing or capital for the System and (iv) assign this Agreement to any person succeeding to all or substantially all of the assets of Seller (provided that Seller shall be released from liability hereunder as a result of any of the foregoing permitted assignments only upon assumption of Seller's obligations hereunder by the assignee). Purchaser's consent to any other assignment shall not be unreasonably withheld if Purchaser has been provided with reasonable proof that the proposed assignee (x) has comparable experience in operating and maintaining photovoltaic solar systems comparable to the System and providing services comparable to those contemplated by this Agreement and (y) has the financial capability to maintain the System and provide the services contemplated by this Agreement in the manner required by this Agreement. This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees. b. Financing The Parties acknowledge that Seller may obtain construction and long -term financing or other credit support from lenders or third parties ( "Financing Parties ") in connection with the installation, construction, ownership, operation and maintenance of the System. Both Parries agree in good faith to consider and to negotiate changes or additions to this Agreement that may be reasonably requested by the Financing Parties; provided, that such changes do not alter the fundamental economic terms of this Agreement. The Parries also agree that Seller may assign this Agreement to the Financing Parties as collateral, and in connection with any such assignment, Purchaser agrees to execute a consent to assignment in customary form and reasonably acceptable to the Financing Parties. Solar Power Purchase Agreement v.20U91015 . 15 20. Confidentiality and Publicity a. Confidentiality If either Party provides confidential information, including business plans, strategies, financial information, proprietary, patented, licensed, copyrighted or trademarked information, and/or technical information regarding the design, operation and maintenance of the System or of Purchaser's business ( "Confidential Information ") to the other or, if in the course of performing under this Agreement or negotiating this Agreement a Party learns Confidential Information regarding the facilities or plans of the other, the receiving Party shall (a) protect the Confidential Information from disclosure to third parties with the same degree of care accorded its own confidential and proprietary information, and (b) refrain from using such Confidential Information, except in the negotiation and performance of this Agreement. Notwithstanding the above, a Party may provide such Confidential Information to its, officers, directors, members, managers, employees, agents, contractors and consultants (collectively, "Representatives "), and affiliates, lenders, and potential assignees of this Agreement (provided and on condition that such potential assignees be bound by a written agreement or legal obligation restricting use and disclosure of Confidential Information), in each case whose access is reasonably necessary to the negotiation and performance of this Agreement. Each such recipient of Confidential Information shall be informed by the Party disclosing Confidential Information of its confidential nature and shall be directed to treat such information confidentially and shall agree to abide by these provisions. b. Permitted Disclosures Notwithstanding any other provision in this Agreement, neither Parry shall be required to hold confidential any information that (i) becomes publicly available other than through the receiving Party, (ii) is required to be disclosed to a Governmental Authority under applicable law or pursuant to a validly issued subpoena (but a receiving Party subject to any such requirement shall promptly notify the disclosing Party of such requirement to the extent permitted by applicable law), (iii) is independently developed by the receiving Party, (iv) becomes available to the receiving Party without restriction from a third party under no obligation of confidentiality, or (v) disclosure is required pursuant to the California Public Records Act as further discussed in section (c) . If disclosure of information is required by a Governmental Authority, the disclosing Party shall, to the extent permitted by applicable law, notify the other Party of such required disclosure promptly upon becoming aware of such required disclosure and shall cooperate with the other Party in efforts to limit the disclosure to the maximum extent permitted by law. C. Notwithstanding the provisions of this Agreement the parties agree that Purchaser is bound by the provisions of the California Public Records Act. During the Term of the Agreement the City will act to preserve the confidentiality of those documents which under this Agreement and the Act are confidential. To assist the Purchaser in preserving all documents in a confidential manner, all copies which are Proprietary shall be marked "PROTECTED MATERIALS — Contains Proprietary Information." The Purchaser shall take all reasonable precautions necessary to assure that the Confidential Information is not distributed to unauthorized persons. The parties agree that the documents and information provided to the City which have be marked and PROTECTED MATERIALS are exempt from production under the California Public Records Act, Cal. Gov't Code Sections 6250, et seq., under either the exemption provided in Section 6254(e) or 6255(a), or both. In the event a claim is made against the Purchaser to provide the documents, the Seller agrees to defend and indemnify the Purchaser with acceptable counsel. 21. Goodwill and Publicity Neither Party shall use any name, trade name, service mark or trademark of the other Party in any promotional or advertising material without the prior written consent of such other Party. The Parties shall coordinate and cooperate with each other when making public announcements related to the execution and existence of this Agreement, and each Party shall have the right to promptly review, comment upon and approve any publicity materials, press releases or other public statements by the other Party that refer to, or that describe any aspect of, this Agreement. Neither Party shall make any press release regarding or public announcement or the specific terms of this Agreement (except for filings or other statements or releases as may be required by applicable law) without the specific prior written consent of the other Party. Without limiting the generality of the foregoing, all public statements must accurately reflect the rights and obligations of the Parties under this Agreement, including the ownership of Environmental Attributes and Environmental Incentives and any related reporting rights. 22. General Provisions a. Choice of Law The law of the state where the System is located shall govern this Agreement without giving effect to conflict of laws principles. b. Arbitration and Attorneys' Fees Any dispute arising from or relating to this Agreement shall be arbitrated in Los Angeles, California. The arbitration shall be administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures, and judgment on any award may be entered in any court of competent Solar Power Purchase Agreement v,20091015 16 jurisdiction. If the Parties agree, a mediator may be consulted prior to arbitration. The prevailing party in any dispute arising out of this Agreement shall be entitled to reasonable attorneys' fees and costs. C. Notices All notices under this Agreement shall be in writing and shall be by personal delivery, facsimile transmission, electronic mail, overnight courier, or regular, certified, or registered mail, return receipt requested, and deemed received upon personal delivery, acknowledgment of receipt of electronic transmission, the promised delivery date after deposit with overnight courier, or five (5) days after deposit in the mail. Notices shall be sent to the person identified in this Agreement at the addresses set forth in this Agreement or such other address as either parry may specify in writing. Each party shall deem a document faxed to it as an original document. d. Survival Provisions of this Agreement that should reasonably be considered to survive termination of this Agreement shall survive. For the avoidance of doubt, surviving provisions shall include, without limitation, Section 4 (Representations and Warranties), Section 7(h) (No Warranty), Section 15(b) (Insurance), Section 17 (Indemnification), Section 20 (Confidentiality and Publicity), Section 22(a) (Choice of Law), Section 22 (b) (Arbitration and Attorneys' Fees), Section 22(c) (Notices), Section 22 (el (Comparative Negligence), Section 22(h (Non- Dedication of Facilities), Section 22(i) (Service Contract), Section 22(k) (No Partnership) Section 220D (Full Agreement, Modification, Invalidity, Counterparts, Captions) and Section 22(n) (No Third Party Beneficiaries). e. Further Assurances Each of the Parties hereto agree to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party which are not inconsistent with the provisions of this Agreement and which do not involve the assumptions of obligations other than those provided for in this Agreement, to give full effect to this Agreement and to carry out the intent of this Agreement. Right of Waiver Each Party, in its sole discretion, shall have the right to waive, defer or reduce any of the requirements to which the other Party is subject under this Agreement at any time; roo vided however that neither Party shall be deemed to have waived, deferred or reduced any such requirements unless such action is in writing and signed by the waiving Party. No waiver will be implied by any usage of trade, course of dealing or course of performance. A Party's exercise of any rights hereunder shall apply only to such requirements and on such occasions as such Party may specify and shall in no event relieve the other Party of any requirements or other obligations not so specified. No failure of either Party to enforce any term of this Agreement will be deemed to be a waiver. No exercise of any right or remedy under this Agreement by Purchaser or Seller shall constitute a waiver of any other right or remedy contained or provided by law. Any delay or failure of a Party to exercise, or any partial exercise of, its rights and remedies under this Agreement shall not operate to limit or otherwise affect such rights or remedies. Any waiver of performance under this Agreement shall be limited to the specific performance waived and shall not, unless otherwise expressly stated in writing, constitute a continuous waiver or a waiver of future performance. g. Comparative Negligence It is the intent of the Parties that where negligence is determined to have been joint, contributory or concurrent, each Party shall bear the proportionate cost of any Liability. h. Non - Dedication of Facilities Nothing herein shall be construed as the dedication by either Party of its facilities or equipment to the public or any part thereof. Neither Party shall knowingly take any action that would subject the other Party, or other Party's facilities or equipment, to the jurisdiction of any Governmental Authority as a public utility or similar entity. Neither Parry shall assert in any proceeding before a court or regulatory body that the other Party is a public utility by virtue of such other Party's performance under this agreement. If Seller is reasonably likely to become subject to regulation as a public utility, then the Parties shall use all reasonable efforts to restructure their relationship under this Agreement in a manner that preserves their relative economic interests while ensuing that Seller does not become subject to any such regulation. If the Parties are unable to agree upon such restructuring, Seller shall have the right to terminate this Agreement without further liability, and Seller shall remove the System in accordance with Section 11 of this Agreement. i. Estoppel Either Party hereto, without charge, at any time and from time to time, within five (5) business days after receipt of a written request by the other party hereto, shall deliver a written instrument, duly executed, certifying to such requesting party, or any other person specified by such requesting Party: (i) that this Agreement is unmodified and in full force and effect, or if there has been any modification, that the same is in full force and effect as so modified, and identifying any such modification; (ii) whether or not to the knowledge of any such party there are then existing any offsets or defenses in favor of such party against enforcement of any of the terms, covenants and conditions of this Agreement and, if so, specifying the same and also whether or not to the knowledge of such party the other parry has observed and performed all of the terms, covenants and conditions on its part to be observed and performed, and if not, specifying the same; and (iii) such other information as may be reasonably requested by the Solar Power Purchase Agreement v.20091015 17 requesting Party. Any written instrument given hereunder may be relied upon by the recipient of such instrument, except to the extent the recipient has actual knowledge of facts contained in the certificate. Service Contract The Parties intend this Agreement to be a "service contract' within the meaning of Section 7701(e)(3) of the Internal Revenue Code of 1986. Purchaser will not take the position on any tax return or in any other filings suggesting that it is anything other than a purchase of electricity from the System k. No Partnership No provision of this Agreement shall be construed or represented as creating a partnership, trust, joint venture, fiduciary or any similar relationship between the Parties. No Party is authorized to act on behalf of the other Party, and neither shall be considered the agent of the other. Full Agreement, Modification, Invalidity, Counterparts. Captions This Agreement, together with any Exhibits, completely and exclusively states the agreement of the parties regarding its subject matter and supersedes all prior proposals, agreements, or other communications between the parties, oral or written, regarding its subject matter. This Agreement may be modified only by a writing signed by both Parties. If any provision of this Agreement is found unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. In such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law. This Agreement may be executed in any number of separate counterparts and each counterpart shall be considered an original and together shall comprise the same Agreement. The captions or headings in this Agreement are strictly for convenience and shall not be considered in interpreting this Agreement. M. Forward Contract The transaction contemplated under this Agreement constitutes a "forward contract' within the meaning of the United States Bankruptcy Code, and the Parties further acknowledge and agree that each Party is a "forward contract merchant" within the meaning of the Untied States Bankruptcy Code. n. No Third Party Beneficiaries Except as otherwise expressly provided herein, this Agreement and all rights hereunder are intended for the sole benefit of the Parties hereto and shall not imply or create any rights on the part of, or obligations to, any other Person. End of Document Solar Power Purchase Agreement v.20091015 18 ilrSolarCity First Amendment to Solar Power Purchase Agreement (Commercial ORlCA -JR MASH) Purchaser: Seller: Name Rosemead Housing Development Name SolarCity Corporation an d Corporation (Angelus) and 393 Vintage Park Drive, Suite 140 Address 8838 E Valley Blvd. Address Foster City, CA 94404 Rosemead, CA 91770 Attention: Contract Administration Attention: Gary Taylor, President Property Manager: Levine Management Group, Inc. Phone 626 -569 -2100 Phone (650) 638 -1028 Fax 626- 307 -9218 Fax (650) 638 -1029 E -mail etavlornacitvofrosemead.org E -mail ContractAdministrator @solarcity.com Purchaser ® owns the Facility Contractor's License Numbers (check one) CA: CSLB 888104 ❑ leases the Facility CO: CO EC 8041 OR: CCB180498 This First Amendment (the "First Amendment ") is to that certain Solar Power Purchase Agreement dated November )S, 2010 (the "Agreement") between SolarCity Corporation ( "Seller ") and Rosemead Housing Development Corporation (the "Purchaser "), is amended effective as of the date signed by Seller below (the "Effective Date ") and is hereby amended as follows: The following party is added to the Agreement: I. Levine Management Group, Inc. (Property Manager) If a conflict or inconsistency arises between the provisions of this First Amendment and the Solar Power Purchase Agreement, the provisions of this First Amendment shall prevail. Rosemead Housin eve] ent Corpora n Signature: �-7� �+ Printed Name: T Gk� Allred Title: E %MA„C lbi(CCTUr Title: Date: 11 1 I zo 10 SolarCity oration Signature: - f/06� Printed Name: bA V t tz W A t 1 CFo Date: / I J ' 7 ! LEGAL First Amendment to the Solar Pourer Purchase Agreement I' I DATE it