20161217 Ver 1_Additional Information_20170505

Scarbraugh, Anthony
From: McNay, Tom <[e-mail]>
Sent: Friday, May 05, 2017 1:42 PM
To: Scarbraugh, Anthony
Cc: Barnes, Kyle; May, David; Sullivan, Shelton; Higgins, Karen; Dumpor, Samir;
[e-mail]; Tankard, Robert; Hayes, Tim
Subject: RE: Duke Energy Renewables Windsor Solar Follow-up
Attachments: Windsor and Bethel Solar Response to DWR request for additional information
05052017-Final.pdf
Anthony,
Please see the attached letter in response to your email request below. There are a number of documents that we are
including as attachments which I will send under separate cover due to file size. We are also sending you a hard copy of
all documents for delivery Monday.
As always, please let us know if any questions once you've had an opportunity to review.
Thank you,
Tom
Thomas McNay
General Manager, Engineering
DUKE
�C ENERGY.
RENEWABIES
Office: [phone]
Mobile: [phone]
From: Scarbraugh, Anthony [mailto:[e-mail]]
Sent: Thursday, April 27, 2017 9:40 AM
To: Hayes, Tim; Tankard, Robert
Cc: McNay, Tom; Barnes, Kyle ; May, David; Sullivan, Shelton; Higgins, Karen; Dumpor, Samir
Subject: RE: Duke Energy Renewables Windsor Solar Follow-up
*** Exercise caution. This is an EXTERNAL email. DO NOT open
attachments or click links from unknown senders or unexpected
email. ***
Mr. Hayes,
Per discussion between Division of Water Resources staff and Duke Renewables personnel on April 19, 2017 regarding
the responses to the Notice of Violation and Recommendation for Enforcement issued for violation at the Windsor and

Bethel Solar facilities, this Office requests any additional information to clarify the party responsible for citing and
addressing state and federal regulations be provided to this Office by May 5, 2017. If you have any further questions,
please feel free to contact me.
Regards,
Anthony Scarbraugh
Environmental Senior Specialist
Division of Water Resources — Water Quality Regional Operations
Department of Environmental Quality
252 948 3924 office
anthonv.scarbrauoh(r ncdenr cov
943 Washington Square Mall
Washington, NC 27889
Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.
From: Scarbraugh, Anthony
Sent: Monday, April 24, 2017 2:20 PM
To: 'Hayes, Tim' <[e-mail]>; Tankard, Robert <robert.tankard@ncdenr.¢ov>
Cc: McNay, Tom <Tom.McNavCaduke-enerev.com>; Barnes, Kyle<Kvle.W.Barnes(ausace.armv.mil>; Shelton Sullivan
<Shelton.SullivanCDncdenr.eov>
Subject: RE: Duke Energy Renewables Windsor Solar Follow-up
Mr. Hayes,
This Office approves the submittal date of May 5, 2017
Thanks,
Anthony Scarbraugh
Environmental Senior Specialist
Division of Water Resources —Water Quality Regional Operations
Department of Environmental Quality
252 948 3924 office
anthonv.scarbrauoh(rDncdenroov
943 Washington Square Mall
Washington, NC 27889
Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.
From: Hayes, Tim [mailto:Tim.HavesCaduke-energy.com]
Sent: Friday, April 21, 2017 4:51 PM

To: Tankard, Robert <[e-mail]>; Scarbraugh, Anthony <[e-mail]>
Cc: McNay, Tom <[e-mail]>; Barnes, Kyle <[e-mail]>
Subject: Duke Energy Renewables Windsor Solar Follow-up
Robert and Anthony: Thanks again for talking to Tom and I earlier this week. Per our discussion, the field work (soil
borings) to determine the wetland boundaries and extent at the Windsor solar site should have wrapped up today. We
expect to receive a draft report by mid -next week. We will need some time to review it, so we propose to provide a
copy of the report to NC DWR (and the Army Corps) by COB Friday, May 5. Let me know if that proposed schedule is
satisfactory. In the meantime, if something changes on this schedule, I will let you know. Thanks and have a good
weekend.
Tim
Timothy A. Hayes
Director, Environmental
Duke Energy Renewables
301 Home Avenue
Terre Haute, IN 47803
Office: [phone]
Cell: [phone]
[e-mail]

DUKE
ENERGY.
RENEWABLES
May 5, 2017
Anthony Scarbraugh
Environmental Senior Specialist
Water Quality Regional Operations Section
Division of Water Resources, NCDENR
943 Washington Square Mall
Washington, North Carolina 27889
I om McNay
Vice President
Duke Fnergy Rene�vables NC Solar, LLC
139 G. Fourth St. EM32
Cincinnati, Oil 45202
Re: Notice of Violation and Recommendation for Enforcement
NOV-207-WP-0002 and NOV-2017-PC-0155
Windsor and Bethel Solar Projects
Bertie and Pitt Counties
Dear Mr. Scarbraugh:
Thank you for your April 27, 2017 request for additional information to clarify the
party responsible for citing and addressing state and federal regulations. Upon review of our
initial response and SunEnergyl's responses to the Windsor NOVs we offer the following
additional supporting information below that we believe helps clarify roles and responsibilities
of the various parties.
Also, we have reviewed SunEnergyl's response to the Bethel NOV. We are
disappointed that they offered no specifics with regards to resolving the issues, including any
kind of offer to replant trees on their own property within the restoration area. In light of this,
it is Duke Energy Renewables NC Solar's (DER) desire to satisfy the State of North Carolina
criteria for wetland restoration at the Bethel solar site and resolve this issue. Therefore, DER
commits, subject to any limitations in our lease which we will work promptly to resolve, to
plant at least two native hardwood wetland species and will maintain a stem density and
survivorship of at least 260 trees per acre at the end of three years. This action of tree
planting, coupled with the restoration activities outlined in our April 10, 2017 NOV response
should satisfy the criteria for wetland restoration and clearly demonstrate DER's commitment
to resolving this issue.
Windsor Additional Supporting Information
1. The Engineering, Procurement and Construction Agreement dated as of October 11,
2013 (EPC Agreement) by and between Windsor Cooper Hill Solar, LLC ("Owner"),
which is a wholly owned subsidiary of Duke Energy Renewables NC Solar, LLC and
SunEnergyl, LLC ("SE1" or "Contractor") clearly defines the roles and expectations of
each of the parties.

a. The recitals in the EPC Agreement state that "Owner desires to engage
Contractor to obtain permits for, develop, engineer, design, supply, construct
and install the System at the Site and interconnect the System to the
Transmission provider..." This turnkey basis is also more fully defined in
Section 2 of the EPC Agreement.
b. Sections 5.1 and 5.13 state the Contractor's responsibility to comply with all
Applicable Laws. Section 5.13 goes on to require Contractor to "ensure that the
System, as designed, constructed and installed, complies ... with all Applicable
Laws." In addition, Contractor is responsible for ..."pollution, toxic emissions
and other Hazardous Materials, or any discharge or release thereof' caused by
the Contractor or its Subcontractors
c. Section 5.14 of the EPC Agreement defines that SEl had responsibility to
obtain all Applicable Permits as defined in Schedule 5.14, and to present any
proposed permit application to Owner, for approval. Schedule 5.14 defines any
requirements for grading permits or site plan approvals to be responsibility of
the Contractor.
2. EPC Agreement Change Order No. Windsor00I dated May 14, 2014 states that SE
requested an adjustment to Contract Price for costs incurred due to "unseen site
conditions during Due Diligence. Once the project was initiated and heavy vegetation
was cleared, it became apparent [to SEl ] that much contouring of the property would
be required for racking and panel installation. Due to the time constraints of the
project, a third party vendor was called in to complete the work." Phelps & White
Construction was contracted in 2013 to clear, grub, pile, and remove debris from the
site. Windsor Cooper Hill Solar agreed to pay SunEnergyl additional dollars to cover
these costs. Supporting documentation provided by SunEnergyl for the change order
included checks from SunEnergyl payable to Phelps & White Construction and an
invoice from Phelps & White Construction billed to Bill Long at SunEnergyl dated
11/14/2013.
3. The Ground Lease and Easement Agreement dated as of October 24, 2013 between the
Town of Windsor and Bertie County (land "Owner") and Windsor Cooper Hill Solar,
LLC (the "Tenant") defines the land lease agreement between the parties. SunEnergyl
in their response to the NOV referenced this document as evidence that DER as the
"Tenant" had responsibilities for the clearing and grading of the property. However,
this agreement was not executed until July 20, 2016 as shown on page 26. The delay in
execution was due to a delay in getting State approval for access and electric easements
that required Council of State approval, review by the Attorney General's Office and
finally execution by the Governor. These responsibilities were assumed well after
construction was completed. SunEnergyl actually had control of the site during the
construction period.
4. The Option to Lease dated September 26, 2013 between the Town of Windsor and
Bertie County (land "Owner") and SunEnergyl, LLC ("Tenant") was the agreement
actually in place during the actual construction period. Bill Long of SunEnergyl, LLC
signed the agreement as "Tenant". The timing of this document clearly defines
SunEnergyl's role and involvement in securing control of the site prior to construction.

Bethel Additional Supporting Information:
In similar fashion as with the Windsor solar project, the Engineering, Procurement and
Construction Agreement dated as of October 11, 2013 (EPC Agreement) by and between
Bethel Price Solar, LLC ("Owner"), which is a wholly owned subsidiary of Duke Energy
Renewables NC Solar, LLC and SunEnergyl, LLC ("SEI" or "Contractor") clearly defines the
roles and expectations of each of the parties.
a. The recitals in the EPC Agreement state that "Owner desires to engage
Contractor to obtain permits for, develop, engineer, design, supply, construct
and install the System at the Site and interconnect the System to the
Transmission provider..." This turnkey basis is also more fully defined in
Section 2 of the EPC Agreement.
b. Sections 5.1 and 5.13 state the Contractor's responsibility to comply with all
Applicable Laws. Section 5.13 goes on to require Contractor to "ensure that the
System, as designed, constructed and installed, complies ... with all Applicable
Laws." In addition, Contractor is responsible for ..."pollution, toxic emissions
and other Hazardous Materials, or any discharge or release thereof' caused by
the Contractor or its Subcontractors.
c. Section 5.14 of the EPC Agreement defines that SEI had responsibility to
obtain all Applicable Permits as defined in Schedule 5.14, and to present any
proposed permit application to Owner, for approval. Schedule 5.14 defines any
requirements for grading permits or site plan approvals to be responsibility of
the Contractor.
Summary
Copies of these referenced documents are provided as support for your review and
information. These documents are considered as Confidential Information as defined by the
EPC Agreements and are provided voluntarily in response to your request. We would ask that
these documents be treated as confidential and used only as deemed necessary to complete
your review. We believe that this information provides clarity to the roles of the various
parties and disputes some of the claims made by SunEnergyl in their responses to the NOVs.
This additional information further supports that:
• SE was the Engineering, Procurement, and Construction firm for the Project(s)
and was solely responsible for the site development, preparation, permitting,
design and construction, among other obligations.
• SEl was in control of the land prior to and during the construction period.
• Neither Duke Energy Renewables NC Solar nor Windsor Cooper Hill Solar
contracted for the clearing and grading of the site at Windsor Cooper Hill Solar.
A change order was executed with SunEnergyl for the additional costs for the
clearing and grading of the site.
• Duke Energy Renewables NC Solar, Windsor Cooper Hill Solar, nor Bethel
Price Solar ever intended for the Project(s) to involve the discharge of fill
materials into jurisdictional waters that would have required a Section 404
permit or a Section 401 certification. Any violation of those requirements was
not done by Duke Energy Renewables NC Solar, LLC or its affiliates.

Thank you for your consideration of this additional information. Please let us know if you
have any questions or need anything further from us along these lines by contacting me at
[phone] or Tim Hayes at [phone].
Sincerely, /
/Tom MMcNay U
Vice President
Attachments
1. EPC Agreement for Windsor Cooper Hill without Exhibits & Schedules
2. EPC Agreement Schedule 5.14 for Windsor Cooper Hill
3. EPC Agreement Change Order No. Wlndsor00I dated May 14, 2014
4. Ground Lease and Easement Agreement for Windsor Cooper Hill
5. Option to Lease dated September 26, 2013for Windsor Cooper Hill
6. EPC Agreement for Bethel Price Solar without Exhibits & Schedules
7. EPC Agreement Schedule 5.14 for Bethel Price Solar
Cc: Timothy Hayes - DER (via email)
Robert Tankard - NC DWR (via email)
Bill Biddlecome - US ACOE (via email)
Kyle Barnes - US ACOE (via email)
Samir Dumpor - NC DELMR (via email)
M

Attachment 1
EPC Agreement for Windsor Cooper Hill without Exhibits &
Schedules
Confidential Information

Execution Copy
confwenq- tea, (
ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT
Dated as of October 11, 2013
by and between
Windsor Cooper Hill Solar, LLC
and
SunEnergyl, LLC
CONFIDENTIAL

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16.2 Certain Owner Remedies..,•.,
16.3 Additional Owner
16.4 Cumulative Remedies
Remedies..................................................................................31
..............31
.........................................
16.5 Owner Events of Default.....
"•"......•.....••••••......•••
16.6 Contractor Remedies
...................31
............................................................
.............................................................................31
7• Intellectual Property..••,,,,,•
31
17.1
..............................................................................................31
Ownership of Rights in Documentation
17.2
Ownership of Invention
.............................................................................32
Rights..............
17.3 License .....................................
........................................................................
• Contract Price
......................... ........................................................................I..............32
32
18.1 Amount......
18.2......................................................
Fixed Price ............................................................32
...............................................................
19. Invoicing
and Pa
Payment ......................................................................................................32
19.1
......................................32
Milestones...........................................................
19.2 Invoices; Lien
Waivers and Releases ............
19.3 Payments............
.32
19.4 Final Invoice
32
...................................................
19.5 Set Off. ..................................................... .........................................................
33
19.6 No Acceptance by Pa ........................................
33
20. Suspension
Yment...................................................................................33
of the Work
33
.......................
20.1
By
Y Owner ...............
BYContractor
33
20.3 Resumption of Work
.........................................................................................................34
.............................................................................................34
1. Taxes ..................................
..................
21.1 Employment Taxes........
212 Sales and Use Taxes
•••.....34
on Contractor Tools .......
21.3 Sales and Use Tax •• .............................................
on Equipment
.................................. 21.4 9 Pment and Materials...................................................34
Other Contractor Taxes.....,.
.... ..34
21.5 Owner Taxes............
2• Representations and Warranties;
35
Cooperation
...................................................................35
22.1 Representations and Warranties ...........................................................35
22.2 Representations
22.3 and Warranties of Owne$ctor...........
Cooperation .....................
35
......:.............
3• Warranty..
36
.........................................................
37
23.1 Contractor SystemSystem Warranty
37
.....................................
Work
.......................................
23.3Y Warranty Exce ti ...................................................38
37
ervedExceptions............
23.4 Reserved.................................................................................................................38
23.5 Intellectual Property
38
23.6 Documentation.....Y
.................................................................................I.............39
CONFIDENTIAL
lil

23.7 Title.........................................................................
Operation of the System
.......................................
2323.8
.9..........................
Disclaimer........... ••••••••
••...39
..........................
4. Insurance
...........................................
2.
39
.............................. .................................................
.................... 9
24.1 Coverages........
I.......24.2 ................ ..............................
Additional
.... 0
Coverages ...........
24.3Policy Re
Y Requirements
.................................................40
24A ..................
Certificates and Notice...........
24.5 No Limitation.............................................................................
40
Indemni
Indemnity...
25..............................................................41
40
25.1
Contractor Indemnity
...................................................
25.2 Contractor Environmental
41
25*3 Indemnity...... ..............
........................41
25.4y.................................................................................41
Owner Indemnity ...................................................
25.5
Owner Environmental Indemnit 25.6 Indemnity
Procedures
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.......
26. Limitation of Liability..........................................................................43
..........................
26.1
No Conse........................................I..................43
quential Damages....,.,,,,
26,2 Maximum Total Liability"""""""'
27.
......................
Governing Law; Consent
43
.........................44
to Jurisdiction; Waiver of jury
27.1 Governing Trial
........................................44
27.2 Consent to Jurisdiction
27.3 Certain Waivers
...........................................................................................44
27.4 ......44
Service of Process......
Waiver of Jury Trial
27.5............................................................................................45
28.
.....................
Liens......
.........................
28.1
45.................................................................
Liens
................ ..................................................................
Discharge
.
45
or Bond29.
..........
Waiver.......................................................
45
0•
.......................................................................
Dispute Resolution...........
45
..........................................................................................
30.1 Good Faith
45
ons
Negotiations .......................................
30,2 Right to Pursue
45
30.3 Other Resolution ............
Continued Performance46
46
31,
Notices and De ......................
mands.............................
32,
Nondisclosure; Publicity
46
33.
Time of .....................................................................
ssence.........
46
34.
Validity
35.
Survival........
48
48
CONFIDENTIAL
iv

36.
37,
38.
39.
40.
41.
42,
43.
44.
Binding Effect ............................
No Oral Modifications .............................
...................4 b
Joint Draftin .49
Counterparts........... 48
...........................................................................................................
Announcements and Publications.48..... ...............................................
Entire Agreement.............................................49
................................
No Agency...........................................................
Priority of Documents .......................
Assi
gnment......................... ..................
Schedules
.................................................49
.............................................................49
.............................................................49
Schedule ]A -
Schedule I
Construction Schedule
-
Schedule I
Performance Tests
_
Schedule 1D _
Schedule IE
Scope of Work
Form of Change Order
_
Schedule 1F _
Schedule 4.1 _
Schedule of Values
Time and Materials Rate Schedule
Schedule 4.2 _
Schedule 5.1 -
Major Subcontractors
Major Subcontractor Warranties
Schedule 5.4
Schedule 5.5
Technical Specifications/Product Data Sheet and Bill of
Construction Plans Materials
_
Schedule 5.5 _
Schedule 5.8 _
Project Safety Manual
Training Course Agenda Outline
Schedule 5.14 _
Spare Parts List
Permits
Schedule 23
Schedule 24
[reserved]
-
Schedule 25 _
Schedule 26
Insurance
Owner Equipment
_
Cost Breakdown
ExhLkiLs
Exhibit 1
Exhibit 2
Description of Site
Exhibit 3
Exhibit 4
Form of Notice to Proceed
Form of Weekly Progress
Exhibit 5
Exhibit
Form
of Certificate of Substantial Completion
Form of Certificate
6
Exhibit 7
Exhibit 8
of Final Co mple
Form of Conditional Waiver and Reltease Payment)
Form (Progress
of Unconditional Waiver g
Exhibit 9 _
Exhibit 10
and Release (Progress Payment)
(
Form Of Conditional Waiver and Release
Form Unconditional Waiver
al Completion)
and Release (Final Completion)
Example of High Voltage Sign
CONFIDENTIAL
...49

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT
This ENGINEERING, PROCUREMENT
AND CONSTRUCTION
AGREEMENT (this "Agreement" ), dated as of October 11, 2013 (the "Effective is by
and between Windsor Cooper Hill Solar, LLC, a Delaware limited liability company
and SunEnergyl, LLC, a North Carolina limited liability company ("Contractor"
Contractor are sometimes referred to herein each as a "Part "
). (Owner and
_y and collectively as the "Parties").
RECITALS
WHEREAS, Owner has entered into (or, as applicable, is anticipated to enter into
shortly) the following agreements relating to its proposed development, ownership and operation
of a 7 megawatt ("MW") (de) solar photovoltaic "PV" y (the
"S stem") to be located at a site in Bertie County, Windsor, North Carolina as more specifically
(_) electric generating facility
identified in Exhibit lI hereto (the "Site"): (1) a Power Purchase Agreement with Virginia
Electric and Power Company, doing business as Dominion North Carolina Power (the "PPA");
(2) one or more Ground Lease and Easement Agreements, as applicable, with the various Site
owners (collectively the "Ground Leas
Town of Windsor (the "Inte" ); and (3) an Interconnection Agreement, with the
erconnection A greement") (collectively, the" ect A eements");
WHEREAS, Contractor obtains permits for, develops, engineers, designs,
Procures, constructs and installs ground -mounted solar PV electric generating systems and as
such is able to permit, develop, engineer, design, construct and install the System;
WHEREAS, Owner desires to engage Contractor to obtain permits for, develop,
engineer, design, supply, construct and install the System at the Site and interconnect the System
to the Transmission Provider, in accordance with the Interconnection Agreement; and
WHEREAS, subject to the terms and conditions of this Agreement, Contractor
desires to provide to Owner such permitting, development, engineering, design, supply and
installation and interconnection services.
OTHEREFORE,
b, and
other good a dval ablecconsideration
and msufficiency1Sofset whichharelohereby
acknowledged, the Parties hereby agree as follows:
AGREEMENT
Definitions.
1•1 the following Certain Definitions.
As used in this Agreement, the following terms have
meanings:
"Affiliate" means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with, such Person. Foc the purposes of this
by" and "uner common control ith"), as aplied to any Person, means the Possession,
definition, "control" (including with correlative meanings, the terms "controlling," "controlled
or indirectly thro gh one or more intermediaries, of the power to either (a) elect a majoritydirectly
the

directors (or Persons with equivalent management power) of such Person or b
the direction the management or policies of such Person, whether through the ownership of
securities o partnership, ftm () direct or cause
law or otherwise. membership or other ownership interests, by contract, by operation of
"A reement" has the meaning given to such term in the preamble.
Interconnection Applicable
BAA Arovisions" means Sections 1.5.4,
8 1.61
set forth therein) and Appendix Appendix 3, Appendix 4 (solely with respect 1.8o Milestones 7 and
and 2.1.1 of the
Section 1.6 and A pp ndh I to the Interconnection Agreement; provided, however, that
Appendix 6 of the Interconnection Agreement shall only be a l'
Substantial Completion Date.
pp icable until the
"_Applicable Law"
—� means, for any Person, any constitution, code, statute, law,
regu anon, ordinance, rule, judgment order, decree
agreement, directive, guideline, treat , permit, concession, grant, franchise, license,
restriction or any similar form y p°IIcY or requirement of,
administration of an of decision of or determination b °C other governmental
any of its business is subject.
foregoing, by any Governmental Authority or any
Interpretation or
which the Person or
"Applicable Permits" recordin means any license, authorization,
g� per or other approval, including any environmental, construction or o
Permit, that is required b certification, filing,
performance of the Y Applicable Law to be obtained b pirating
this A Work, including the operation b Y Contractor in connection with the
Agreement of the System Y Contractor to the extent contemplated by
certifications, filings, recordings, pnor to Substantial Completion, which licenses, authorizations,
identified therein as the responsibility of Owits ner. other approvals are listed in Schedule �4 and not
Y caner.
"Busines�Day>> means a daySaturday, Sunday or any day on which
banks located in New York, New York are authorized or obligated to close.
"Certificate of Final Com letion" means a certificate issued b
COL by Owner in substantially the form thereof attached
shall evidence Owner's acknowledgement that Final Completion has occurred, y Contractor and
hereto as Exhibit 5, which
"Certificate of Substantial Com letion" means a certificate issued b
and countersigned by Owner in substantiallythe form
shall evidence Owner's acknowled thereof attached hereto as Exh b t 4 tractor
Bement that Substantial Completion has occurred Which
"Chan" has the meaning given to such term in Sech
Cha°fie m Applicable Law"
Date in the judicial or admmistrative inte means (a) any bindin
g change after the any Applicable Laws (excludin Ipretation of, or adoption after he Effective Data of,
g a❑ Y Applicable Laws relating to net income taxes and excluding
any Applicable Laws relating to the organization, existence
good standing, qualification
licensing of Contractor or its Afor
filiates or Subcontractors in an
,
CONFIDENTIAL, Y jurisdiction), which is
2

inconsistent or at variance with any A
imposition after the Effective Date of anyl conde Laws ition t on or in effect nt (except for any
or (b) the
requirements which result from the acts or omissions reOf quirement
can
required as of the Effective Date affecting the issuance, renewal or extension of any Applicable
or
Permits (excludingan Y Subcontractor) not
qualification, or licensing oflCont actor ofr its Subcontractors ts relating organization, existence, standing,
good standing,
"Chan e Order" Yjurisdiction).
a part--g—_ means a written document in the form of Schedule issued by
y after the Effective Date authorizing a Change,
revisions to this Agreement necessary to effect the Change, including an adjustment of the
Contract Price or Construction Schedule, and, if applicable, setting forth any
Sects g.I
"Commercial Delivery of Power" has the meaning given to such term in
System, as set forth n SchedulehIAule' means the schedule for the Work to be completed for the
of this Agreement.—' as modified from time to time in accordance with the terms
"Cont
and the Docume tationct—�m� means this Agreement, the Exhibits and Schedules hereto,
"Contract Price" has the in given to such term in Section I
"Contactor" has the meaning given to such tern in the preamble.
"Contractor Indemnitees" has the meaning given to such term in Sect- 5_q
"Contractor's Re resentative"
accordance with Sectmeans the individual designated by Contractor in
on 3.2
"DAS" means data acquisition system.
"Default Rate"
published b - means an interest rate per annum equal to the lower of (a) the rate
y the Wall Street Journal as the "prime rate" on the date on which such interest
begins to accrue plus two percent (2%) and (b) the maximum rate
Law.
Permitted under Applicable
"Delav Liouidated Dama term in Sectl_ ioff " or "Delay LDS" has the meaning given to such
"Disclosing Party" has the meaning given to such term in Article 32.
"Dis ute" has the meaning given to such term in Article
"Documentation" means ME
are to be delivered hereunder or otherwise llagreediterlb s in printed or Owner, including all construction plans, specifications, Parts es, be delivered
owner's c format that
to
y the Parties to be delivered by Contractor to
CONFIDENTIAL manuals,
3

operator's manuals, equipment and software manuals, non-proprietary electrical system loss
calculations, non-proprietary wind load engineering calculations, drawings (includin
drawings of buildings, structures, plant operating equipment and ancillary reports and test data and results. A non-exclusive list of Documentation, including he date ,by
Which each such item of Documentation is to be delivered by Contractor, is set forth on Schedule
I C.
"D_ollar" and I" means the lawful currency of the United States of America.
"Effect_ iv�ate+> has the meaning given to such term in the preamble.
"Environmental Law"
protection of the environmentmeaand means any Applicable Law relatingto Transportation Act 49 human health, including Pollution or
U.S.C. §1471 etseq.; the Toxics Substances Control rA is is U.S.C.
§§2601 through 2629; the Clean Air Act, 42
and Recovery Act 42 U.S.C. U.S.C. §7401, et seq., the Resource Conservation
§ 1251 et se §6901 et seq., the Federal Water Pollution Control Act, 33 U.S.C.
Environmental Response, Drinking Water Act, 42 U.S.C. §300f, et se .,
Pollution Act, 33 P Compensation, and Liability Act, 42 U.S.C. §9601 t seg., the the oil
U.S.C. § 2701, et seq., and the Emergency Planning and Community Right -to -
Know Act, 42 U.S.C. q•, the Oil
§ 11001, et seq.
"E ui ment" means (a) any and all materials, supplies, a
equipment, parts, tools, components, instruments, appliances, spare
thereto that are required for apparatus, machinery,
accordance with Industry Prudent design, construction or operation of thepSystem Cin
machine y Standards and (b) any and all materials, supplies, apparatus,
machinery, equipment, parts, tools, components, instruments, appliances, spare parts and
appurtenances thereto described in, required by, reasonably inferable from or incidental to the
Work or the Contract Documents. As used herein, "Equipment" expressly excludes (i) the
Owner Equipment and (ii) any equipment, tools or supplies of Contractor or its Subcontractors
that is not intended to be i
"Finalncorporated into or installed as a permanent part of the System.
Completion"
means that the System shall have achieved all of the
conditions set forth in Section
"Force Ma'eure Event" means, when used in a Party's obligations under this Agreement any actor event (to the exten nion t t caused by the fault
or negligence of such Paits h the performance of
ubcontractors or any Affiliates of such Party or any of
its or their agents or emp oyees) wh C is unforeseeable, or being foreseeable, unavoidable and
outside the reasonable control of the Party which invokes it, and which renders said Party unable
to comply totally or partially with its obligations under this Agreement (other thanpayment
obligationst Subject to compliance with the foregoing, examples of Force Majeure Events
include, but are not limited to: nts
(a) war, riot, acts of a public enemy or other civil disturbance;
(b) acts of God, including storms, floods, lightni
ice storms, tornados, tsung, earthquakes, hailstorms,
namis, typhoons, hurricanes, landslides, volcanic
CONFIDENTIAL
eruptions, range or forest fires, and objects striking the earth from space

(such as meteorites), sabotage or destruction by a third arty (other than
any Person employed or retained by or on behalf of the Part
and equipment relating to the performance b Y) of facilities
obligations under this Agreement; Y the affected Party of its
(c) strikes, walkouts, lockouts or similar industrial or labor actions or
disputes, but excluding any of the foregoing involving only employees of
Contractor or any Subcontractor;
A acts or inaction of any Governmental Authority (including the
Transmission Provider), including the suspension, termination,
interruption, denial, delay in obtaining or failure of renewal or issuance of
any approval of any Governmental Authority relating in any way to the
Applicable Permits, Work or operation of the System;
(e) any latent defect in or failure of Owner Equipment, provided that only the
Contractor shall be entitled to claim a Force Majeure Event as a result of
such defect; and
() a Change in Applicable Law, but only to the extent such Change in
Applicable Law prevents a Party from performing i
under this Agreement. ts material obligations
"Governmental Authori ' means an
y domestic 11 foign governmental regulatory authority, agency, court, commission, arbitration tribunal orrrother governmental or
regulatory entity (including an independent system operator or regional transmission operator).
or
"Ground dose" has the meaning given to such term in the recitals.
"Guaranteed Substantial Com letion Date" means March 31, 2014,
olis
ns each
hazardous substance, hazardous alahazardous waste
Pollutant, waste, radioactive material
pollutant, contaminant, toxic substance or other compound, element resubstanced as a uin a formsal,
designated with words of similar meaning and regulatory effect under any Environmental Law,
petroleum and petroleum products, derivatives, wastes or additives, polychlorinated biphenyls,
asbestos, and any other substance for which liability or standards of conduct ma
under Environmental Law.
y be imposed
"Indemnified Part >"
--..� has the meaning given to such term in Section
"Indernnifvine Party" has the meaning given to such term in Section 25.4
safety, "Indust Standards" means those practices, methods and standards of care,
Y performance and diligence normally practiced or approved by a significant portion of
solar engineering, construction and installation
Procurement and construction firms experienced in the engineering,
of utility -scale ground -mounted solar PV
pplants in
Performing services of a similar nature in the United States and are consistentower with good
CONFIDENTIAL
5

engineering, design, procurement and construction
Laws and other standards established for such practices,limited to optimum standards, to the exclusion of k. Industry
Applicable Permits, Applicable
range of acceptable standards Work. Industry standards are not intended to be
general) but rather are intended to include a
Power plant engineering, Y accepted in the utility -scale ground -mounted solar PV
g Procurement and construction industry.
"Infrin ement Claims" has the meaning given to such term in Section 3
`Initial S are Parts Invento
"has the meaning given to such term in Sect g
"Interconnection A reement"has the
meaning given to such terra in the recitals.
"L_en"means any lien, mortgage,
defect in title, or other claim filed or asserted in connection with the System
Contractor, g encumbrance, charge, security interest,
a Subcontractor or any other third party under the control or supervision of
Contractor or any Subcontractor against the S oru or through
structure or equipment at the Site. System, the Site, the Equipment or any other
"Losses" has the meaning given to such term in Secti�5
"Maior Subcontractors"
�_ has the meaning given to such term in Sect "MW" has the meaning given to such term in the recitals.
'Notice to Proceed" form of Exhibit y duet Contractor s tcommence he written notice given b with Schedule __ Ar Y Owner to Contractor in the
Performance of the Work in accordance
"Owner" has the meaning given to such term in the preamble.
"Owner E ui ment" means the equipment described in Schedule 25 "Owner I�nde„ has the meaning given to such term
"Owner's in Section 1
accordance with Sect 3 Re resentative" means the
individual designated by Owner in
Preamble. Party and "Parties" have the respective meanings given to such terms in the
"Performance Guarantee" ha
s the meaning given to such tern in Section 9.2
in, and conductede foam— c— o— rd sts " means the tests of the S
System meets the Performance Guarani Schedule IB System, as more particularly described
by which Contractor demonstrates that the
Partnership, Person" means any individual, corporation,
P company, joint venture, association, limited liability
Governmental Authority, trust, company,
unincorporated organization or
CONFIDENTIAL
6

"PPA" has the meaning given to such term in the recitals.
"Project Safety Manual" means the project safety manual applicable to
Contractor's performance of the Work and attached hereto as Schedule 5.5.
"Project Agreements" has the meaning given to such term in the recitals.
"Punch List" means the written list of items of Work (which Contractor prepares
and with which Owner agrees prior to Substantial Completion) that remain to be completed by
Contractor after Substantial Completion but prior to Final Completion and which shall not affect
the safety, reliability, operability or mechanical or electrical integrity of the System.
"PV" has the meaning given to such term in the recitals.
"Receiving Party" has the meaning given to such term in Article 32.
"Remedial Acts" has the meaning given to such term in Section 25.3.
"Representatives" means, collectively, Contractor's Representative and Owner's
Representative.
"SCADA" means supervisory control and data acquisition system.
"Schedule of Values" means the breakdown and valuation of the Work on the
System for progress payment purposes as set forth on Schedule I E.
in Exhibit 1. "Site" has the meaning given to such term in the recitals and as further described
"Spare Parts List" has the meaning given to such term in Section 5.8.
"Subcontract" means any contract, agreement, purchase order or other binding
commitment between Contractor and a Subcontractor or, as applicable, between two
Subcontractors, in each case with respect to any portion of the Work.
"Subcontractor" means any Person, such as a subcontractor, vendor or supplier,
that is retained by Contractor or any Person hired by Contractor or with a Person of any lower
tier (e.g., a second- or third -tier subcontractor) to perform any portion of the Work in furtherance
of Contractor's obligations under this Agreement, including any Major Subcontractor or any
Supplier.
"Substantial ComDletion" means that the System shall have achieved all of the
conditions set forth in Section 10.1.
"Substantial Completion Date" means the actual date on which Substantial
Completion occurs in accordance with Article 10.
"Suppliers" means those Equipment suppliers or vendors with which Contractor
contracts to build the System.
CONFIDENTIAL

"System" has the meaning given to such term in the recitals and as listed and
described more fully in Schedules 1 C and 5_l. For the avoidance of doubt, the System includes
the Owner Equipment and all permanent works at the Site contemplated by the Scope of Work,
including drainage systems and roads.
"Transmission Provider' means the Town of Windsor, North Carolina.
"Warranty" means the warranties made by Contractor with respect to the System
and the Documentation as set forth in Article 23.
"Work" means the Equipment and all services, labor, obligations, duties, and
responsibilities to be performed by Contractor under this Agreement in connection with, or
relating to, the System (or any component thereof, including the Equipment), including the items
described in Article 2, Article 5 and Schedule 1 C.
1.2 Other References. As used in this Agreement, unless otherwise specified
or where the context otherwise requires:
(a) all references to "Articles" and "Sections" are to Articles and Sections of
this Agreement;
(b) all references to "Exhibits" and "Schedules" are to Exhibits and Schedules
attached to this Agreement, each of which is an integral part of this Agreement and made a part
of this Agreement for all purposes;
(c) references to any gender include all others if applicable in the context;
(d) terms defined in the singular shall have the corresponding meaning when
used in the plural and vice versa;
(e) all uses of "include" or "including" mean "without limitation";
(f) references to any agreement or contract are to such agreement or contract
as amended, modified or supplemented from time to time in accordance with the terms hereof
and thereof; provided that, all references to the Project Agreements (including any exhibits,
schedules and other attachments thereto) are to the Project Agreements as in effect immediately
prior to the Effective Date, and without giving effect to any amendment or modification thereof
or other variance therefrom on and after the Effective Date, unless any such amendment,
modification or other variance shall be expressly consented to in writing by Contractor (such
consent not to be unreasonably withheld or delayed);
(g) any reference to any federal, state, local or foreign statute or law means
such statute or law as amended, supplemented, modified or replaced from time to time and also
refers to all applicable rules and regulations promulgated thereunder; provided, however, that
Contractor shall be entitled to propose a Change Order for a Change in Applicable Law, as
described in Section 14.4;
CONFIDENTIAL

"and/or"; (h) the word "or" has the inclusive meaning represented by the phrase
(i) the words "this Agreement," "hereof," "hereunder," "herein," "hereby" or
words of similar import refer to this Agreement as a whole and not to a particular Article,
Section, subsection, clause, or other subdivision of this Agreement;
Q) any reference to a Person includes such Person's successors and permitted
assigns and any reference to a Governmental Authority includes any successor thereto;
(k) any definition in one part of speech of a word, such as definition of the
noun form of that word, shall have a comparable meaning when used in a different part of
speech, such as the verb form of that word;
(1) the headings of particular provisions of this Agreement are inserted for
convenience only and shall not be construed as a part of this Agreement or serve as a limitation
or expansion on the scope of any term or provision of this Agreement; and
(m) any provisions hereof including the words "written" or "in writing" means
hand-written, type -written, printed or electronically made and resulting in a permanent record.
2. Scope. Contractor shall (a) procure, provide and pay for, on a turnkey basis, all
items and services necessary for the proper execution and completion of the Work, whether
temporary or permanent and whether or not incorporated or to be incorporated into the System,
including all professional design and engineering services, development, Equipment
procurement (excluding the Owner Equipment, the procurement of which and delivery to the Site
is the sole responsibility of Owner, it being understood that Contractor is solely responsible for
custody, risk of loss and installation of the Owner Equipment), supervision, labor, materials,
equipment, tools, construction equipment and machinery, utilities, interconnections (in
accordance with the Interconnection Agreement), transportation, and procurement of the
Applicable Permits and all other items, facilities and services within the scope of the Work and
(b) perform, supervise, coordinate and direct the Work, including the development, permitting,
engineering, design, procurement, project management, construction, interconnection, testing,
start-up and commissioning of the System, in accordance with this Agreement and the
Applicable IA Provisions, including the general standards specified in Section 5.1 hereof. Work
not specifically delineated in this Article 2 or elsewhere in this Agreement shall be performed
and provided by Contractor to the extent customary or necessary to complete the System in
accordance with Industry Standards. Subject to Owner's approval to the extent expressly
required under this Agreement, Contractor shall have sole control over the engineering, design
and construction means, methods, techniques, sequences, and procedures and for coordination of
all portions of the Work under this Agreement. Contractor shall perform the Work in a manner
reasonably expected to enable it to achieve Substantial Completion by the Guaranteed
Substantial Completion Date. Contractor shall promptly notify Owner in writing if any
milestone set forth on the Construction Schedule attached hereto as Schedule IA becomes likely
not to be met in accordance with such Schedule, which notice shall include a reasonably detailed
description of the corrective action to be taken by Contractor. Where this Agreement describes
the Work in general terms, but not in complete detail, it is understood and agreed that the Work
CONFIDENTIAL

includes any incidental work or services which can be reasonably inferred as required or
necessary to construct and complete the System in accordance with the requirements of this
Agreement.
3. Representatives.
3.1 Owner Representative. Owner designates, and Contractor agrees to
accept, Tom McNay as Owner's "Representative" with respect to this Agreement and
Contractor's performance of the Work. Subject to Section 3.3, the actions taken by Owner's
Representative shall be deemed to be the acts of Owner and shall be fully binding upon Owner.
Owner may, upon the prior consent of Contractor (which consent shall not be unreasonably
withheld or delayed), change the designated Owner's Representative.
3.2 Contractor Representative. Contractor designates, and Owner agrees to
accept, Kenny Habul as Contractor's "Representative" with respect to this Agreement and
Contractor's performance of the Work. Subject to Section 3.3, the actions taken by Contractor's
Representative shall be deemed the acts of Contractor and shall be fully binding upon
Contractor. Contractor may, upon the prior consent of Owner (which consent shall not be
unreasonably withheld or delayed), change the designated Contractor's Representative.
3.3 Limited Authority. Notwithstanding Sections 3.1 and 3_2, except as
otherwise expressly set forth in this Agreement, a Representative shall have no power or
authority on behalf of a Party to give, enter into, consent to or execute any amendments, Change
Orders, waivers, notices, consents or other non -routine communications on behalf of a Party
hereunder.
4. Subcontracting.
4.1 Major Subcontractors. The Parties have agreed upon the list of approved
Subcontractors in Schedule 4.1 (collectively, the "Major Subcontractors"), each of which is
providing (a) solar panel modules, inverters, racking systems, trackers or monitoring systems or
(b) services, materials, equipment, supplies or any other Work, the cost of which is in excess of
$100,000 per Subcontract, provided that any and all Subcontracts with the same Subcontractor
shall be aggregated for purposes of clause (b). The Parties have also agreed that Owner will
procure the Owner Equipment and deliver the Owner Equipment to the Site at its sole cost and
expense. Contractor shall have that portion of the Work identified in Schedule 4.1 provided or
performed by the Major Subcontractor for such Work, and Contractor shall not change or replace
any Major Subcontractor, or engage or retain any other Subcontractor meeting the criteria of
clause (a) or (b) of the preceding sentence, without the prior written approval of Owner, which
approval shall not be unreasonably withheld or delayed.
4.2 Subcontracts. Excluding the Subcontract for the Owner Equipment, which
is the exclusive responsibility of Owner, each Subcontract, whether or not a counterparty, thereto
is a Major Subcontractor, shall (a) be in writing and (b) include representations and warranties
that all Work furnished or delivered, and all materials and tools used on Site, by such
Subcontractor shall contain zero percent (0%) asbestos, refractory ceramic fibers, lead,
methylene chloride or polychlorinated biphenyls. In addition, with respect to the Subcontracts
CONFIDENTIAL 10

with the Major Subcontractors providing solar panel modules, inverters, transformers, combiner
boxes, and racks, respectively, the terms of each such Subcontract shall permit the assignment by
Contractor to Owner, at any time upon notice and without any further consent of the Major
Subcontractor that is a party to such Subcontract, of the Assigned Warranty (as defined below)
provided thereunder. Further, to the extent that any such Subcontract requires the Major
Subcontractor that is the party thereto to indemnify Contractor, Contractor shall use reasonable
efforts to ensure that Owner and its Affiliates are expressly named as indemnitees with respect to
any such indemnification obligation. Effective as of the Final Completion Date, (x) Contractor
hereby assigns to Owner, and Owner hereby accepts, all of Contractor's right, title and interest in
and to each of the warranties of the Major Subcontractors, copies of which are set forth in
Schedule 4.2, in each case free and clear of any Liens (collectively, the "Assigned Warranties"),
and (y) Contractor hereby represents and warrants to Owner (which representation and warranty
shall survive the Final Completion Date until the second (2nd) anniversary thereof) that the copy
of each Assigned Warranty set forth in Schedule 4.2 is a true and accurate copy of such Assigned
Warranty as actually assigned to Owner on the Final Completion Date. Subject to the foregoing
sentence, Owner acknowledges and agrees that the foregoing assignment of the Assigned
Warranties on the Final Completion Date shall be without any other representation and warranty
of Contractor and, other than in respect of a breach of such representation and warranty, is
without recourse to Contractor.
4.3 Liability for Subcontractors. The approval by Owner of, or the execution
by Contractor of any Subcontract shall not relieve Contractor of any of its obligations under this
Agreement or relieve Contractor of its responsibility for any of the Work rendered or required to
be rendered by any such Subcontractor. Contractor shall at all times be responsible for the acts,
omissions, failures and faults of all Subcontractors as fully as if they were the acts, omissions,
failures and faults of Contractor (other than those covered under Assigned Warranties).
Contractor shall be responsible for performance of all the Work, whether performed by
Contractor or its Subcontractors. Nothing in this Agreement shall constitute any contractual
relationship between Owner and any Subcontractor, and Owner shall not undertake any
obligation to pay, or to be responsible for the payment of, any sums to any Subcontractor.
Contractor shall promptly pay when due all amounts payable to its Subcontractors for labor and
materials, including Equipment, furnished in the performance of this Agreement and shall ensure
that the System and the Site remain free of any Liens arising through Contractor or any of its
Subcontractors in accordance with Article 28.
4.4 Payments. Contractor shall promptly pay each Subcontractor the amount
to which such Subcontractor is entitled in accordance with its Subcontract. Contractor shall
promptly notify Owner of any dispute with, or claim by, any (a) single Subcontractor if such
claim exceedsqh�or (b) by all Subcontractors if such claims or disputes exceed' in
the aggregate.
Contractor Responsibilities.
5.1 Standards of Performance. Contractor shall perform and complete the
Work in accordance with this Agreement (including Schedules I C and LI), Industry Standards,
Applicable Laws, Applicable Permits, and, to the extent relevant to the Work, such that Owner
CONFIDENTIAL I I

shall be in a position to satisfy its obligations thereunder relevant to the Work, the Project
Agreements . Contractor hereby confirms that Owner has provided Contractor with copies of
those portions of the Project Agreements (specifically, Section 9 of the Ground Lease and the
Applicable IA Provisions) that Owner deems relevant to the Work and that Contractor has
reviewed those provisions and is familiar with the requirements set forth in such provisions.
5.2 Sufficient Personnel. Contractor shall use, and shall require that each of
its Subcontractors use, a sufficient number of Persons, who shall be qualified, properly trained
and, if required by any Applicable Law or any Governmental Authority, licensed, permitted,
registered or approved, so that Contractor may complete the Work and Contractor's other
obligations under this Agreement in an efficient, prompt, economical and professional manner
and in accordance with the Construction Schedule.
5.3 Labor. Contractor shall use reasonable efforts to minimize the risk of
labor -related delays or disruption of the progress of the Work. Contractor shall promptly take
any and all reasonable steps that may be available in connection with the resolution of violations
of collective bargaining agreements or labor jurisdictional disputes. Contractor shall advise
Owner promptly in writing of any actual or threatened labor dispute of which Contractor has
knowledge that might materially affect the performance of the Work by Contractor or any
Subcontractor. Notwithstanding the foregoing, the settlement of strikes, walkouts, lockouts or
other labor disputes shall be at the discretion of the Party subject thereto.
5.4 Construction Plans. Contractor shall perform engineering and design
services, using qualified architects, engineers and other professionals selected and paid for by
Contractor, in each case as are necessary to prepare the Documentation. Contractor shall
prepare the construction plans (including construction time schedules) and submit such plans to
Owner for approval. Owner shall have ten (10) Business Days to respond to Contractor
regarding the construction plans prepared by Contractor, it being agreed that if Owner does not
provide any comments to Contractor within such period, the construction plans as so submitted
shall be deemed to have been approved by Owner. Any approval by Owner of such construction
plans shall in no way relieve Contractor of any of its obligations or responsibilities hereunder.
Notwithstanding the foregoing, all of the construction plans set forth in Schedule 5.4 have been
approved by Owner.
5.5 Health and Safety. Contractor shall perform the Work in accordance with,
and shall cause all Subcontractors to perform the Work in accordance with, the Project Safety
Manual. Contractor shall not revise or amend the Project Safety Manual without the prior
written consent of Owner, not to be unreasonably withheld or delayed.
maw 5.6 Training of Owner's Personnel. 3WJ; 'J
5.6.1 No later than one (1) week prior to the Substantial
Completion Date, Contractor shall provide Owner's personnel with up to two (2)
days of on -Site operation and maintenance training in respect of the System, with
the content of such training to be consistent with the outline of the course agenda
set forth on Schedule 5.6.
CONFIDENTIAL 12

5.6.2 Scheduling of training shall be coordinated between
Contractor and Owner.
5.7 Utility Use. Contractor shall be responsible to provide and pay for all
construction utilities (such as power, sewage, water, and fuel) that are necessary for Contractor
to perform the Work on the Site.
5.8 Spare Parts. A preliminary list of recommended spare parts that are
required for the ongoing operations and maintenance of the System is attached hereto as
Schedule 5.8 (the "Spare Parts List"). Contractor shall update and amend the Spare Parts List, as
applicable, and shall provide a final version of the Spare Parts List to Owner by no later than the
Substantial Completion Date. In addition, Contractor shall, as part of the Contract Price, provide
an initial inventory of spare parts that are required to operate and maintain the System from the
Substantial Completion Date to the Final Completion Date.
5.9 Technical Documents to be Delivered by Contractor. Contractor shall
deliver to Owner, for Owner's approval, a copy of Contractor's proposed commissioning
procedures for the System at least thirty (30) days before the Substantial Completion Date.
Contractor shall deliver to Owner (a) substantially complete drafts of an owner's manual and
operator's manual no later than one (1) week prior to the Substantial Completion Date; (b)
substantially complete drafts of as -built drawings for the System (including any mark-ups
thereof) by the Substantial Completion Date and (c) final versions, in hard copy and electronic
format, of an owner's manual, operator's manual and as -built drawings by the Final Completion
Date. Any other Documentation not described in the foregoing sentence shall be delivered by
Contractor to Owner in accordance with the requirements set forth in Schedule 1 C.
5.10 Record Drawings. Contractor shall maintain in good order at the Site all
material Documentation for the performance of the Work, including at least one (1) record copy
of the drawings and specifications, marked currently to record changes made during
construction, all of which will be available to Owner for inspection and use promptly following
request therefor.
5.11 Interconnection. Contractor shall comply with the Transmission
Provider's interconnection requirements including as set forth in the Applicable IA Provisions.
5.12 Cooperation. Contractor shall provide Owner assistance in providing
periodic status updates, data, responses to request for information and reports to any applicable
Governmental Authorities or other third party, in each case as may be reasonably requested by
Owner and at Owner's expense.
5.13 Compliance with Laws. Contractor shall at all times fully comply, and
cause all Subcontractors to fully comply, with Applicable Laws, and Contractor shall give all
applicable notices with respect to, and in accordance with, any Applicable Laws. Contractor
shall ensure that the System, as designed, constructed and installed, complies, and, when
operated in accordance with Industry Standards, shall comply with all Applicable Laws.
Notwithstanding the foregoing, Contractor shall not be responsible for any environmental
liabilities relating to the relevant part of the Site where the System is located, except for such
CONFIDENTIAL 13

pollution, toxic emissions and other Hazardous Materials, or any discharge or release thereof,
that are caused by Contractor or its Subcontractors in connection with the performance of the
Work; provided, however, that Contractor shall be required to comply with all applicable
Environmental Laws during the performance of the Work, including removing, treating,
disposing of and handling, in a manner consistent with applicable Environmental Laws, any
Hazardous Material that Contractor may uncover, move or dislocate or otherwise come in
contact with on, under or around the Site or where the Work is being performed, regardless of
whether any such Hazardous Material were released on, under or around the Site by Contractor
or any of its Subcontractors in performing the Work. Contractor shall notify Owner in writing,
as soon as practicable but in any event within twenty-four (24) hours, if it becomes aware that it
has uncovered any Hazardous Materials at the Site as referred to above or if any Hazardous
Materials are used in the performance of the Work, are caused by the performance of the Work
or are discharged or released onto the Site as a result of the performance of the Work. If
Contractor discovers any suspected Hazardous Materials at the Site the presence of which (x)
was not caused by Contractor or any Subcontractor, (y) was not previously identified by Owner
to Contractor and (z) results in an increase to Contractor's costs or a delay in the performance of
the Work, Contractor shall be entitled to propose a Change Order pursuant to Article 14.
5.14 Permits. Contractor, at its expense, shall obtain, renew and maintain, and
shall file any documents required to obtain, renew or maintain, any Applicable Permits on a
timely basis. The Applicable Permits are listed in Schedule 5.14, including (to the extent
applicable) each pending application with a Governmental Authority with respect to any of the
foregoing. Contractor shall pay for all taxes, fees and costs in order to obtain the Applicable
Permits. At least five (5) Business Days prior to the submittal or filing of any Applicable Permit
application, Contractor shall give Owner a copy of such proposed application. If Owner
approves such Applicable Permit application, Owner shall, if applicable, execute such
Applicable Permit application within such five (5) Business Day period. If Owner objects within
such period to such Applicable Permit application and provides Contractor with the reasonable
grounds for such objection, Contractor shall not proceed with the submittal of such Applicable
Permit application and the Parties shall discuss and agree upon a mutually acceptable method to
proceed with such submittal. The Parties acknowledge that time is of the essence with respect to
the submittal of any such Applicable Permit applications. Notwithstanding the foregoing, any
pending Applicable Permit application identified on Schedule 5.14 has been approved by Owner.
5.15 Reports and Meeting.
5.15.1 Reports. Within three (3) days of the start of each calendar
week until Substantial Completion, Contractor shall prepare and deliver
electronically to Owner's Representative a progress report covering the prior
calendar week, which report shall be substantially in the form of Exhibit 3.
5.15.2 Meetines. Contractor shall attend and participate in regular
meetings either at the Site or via teleconference with Owner which shall occur
weekly (or upon such other interval as Owner may reasonably request from time
to time) for the purpose of discussing the status of the Work and anticipating and
resolving any problems and which may include, at Owner's request, the Lenders
CONFIDENTIAL 14

consultants and other Persons that have agreed in writing to be bound by the
confidentiality obligations set forth in Article 32.
5.16 F4uipment. Contractor, at its expense, shall purchase, transport, deliver,
inspect to the extent it deems necessary, and construct and install all Equipment necessary to
complete the System as required hereunder. All Equipment, or any component thereof, to be
supplied by Contractor or its Subcontractors that is to comprise, be a part of or be incorporated
into, the System shall be (a) new, (b) in good condition and (c) fit for the use(s) for which it is
employed by Contractor or its Subcontractors. The Equipment shall at all times be maintained,
inspected and operated as required by Applicable Law, consistent with Industry Standards and in
accordance with, and in a manner that does not void, any manufacturer's or supplier's warranties
(including any warranties of Major Subcontractors). Contractor further agrees that all licenses,
permits, registrations and certificates or other approvals required by Applicable Law or any
Governmental Authority shall be procured and maintained for the Equipment at all times during
the use of the same by Contractor or its Subcontractors in the performance of any of Contractor's
obligations under this Agreement. Contractor shall, as a requirement of Final Completion, (i)
deliver to Owner redacted invoices or other documentation evidencing Contractor's proof of
purchase of the Equipment and (ii) submit completed warranty cards for the Equipment to the
original equipment manufacturers. With respect to the Owner Equipment, Contractor
acknowledges and agrees that, at its expense, as part of the Contract Price, it is responsible for
the inspection, construction and installation thereof as part of the System, in accordance with the
requirements of this Agreement.
5.17 Screening. Measures. Contractor shall comply with all applicable labor
and immigration laws that are relevant to Contractor's Work under this Agreement, including the
Immigration Reform and Control Act of 1986 and Form I-9 requirements. Without limiting the
generality of the foregoing, to the extent required by Applicable Law, Contractor shall perform
all required employment eligibility and verification checks and maintain all required
employment records. Contractor acknowledges and agrees that it is responsible for conducting
adequate screening of its employees and agents prior to starting the Work. By providing an
employee or Subcontractor under this Agreement, Contractor warrants and represents that it has
completed the screening measures with respect to such employee or Subcontractor and that such
screening measures did not reveal any information that could reasonably be expected to
adversely affect such employee's or Subcontractor's suitability for employment or engagement
by Contractor or competence or ability to perform duties under this Agreement. If in doubt
whether a suitability, competence or ability concern exists, Contractor shall discuss with Owner
the relevant facts and Owner shall determine, in its sole discretion, whether such Person should
be allowed to perform the Work. Owner, in its sole discretion, shall have the option of barring
from the Site any person whom Owner determines in its reasonable discretion does not meet the
qualification requirements set forth above. In all circumstances, Contractor shall ensure that the
substance and manner of any and all screening measures performed by Contractor pursuant to
this Section 5.17 conform to Applicable Law.
5.18 Protective Measures.
5.18.1 Contractor shall take all precautions reasonably necessary
to protect from personal injury, death or occupational disease, all workers and all
CONFIDENTIAL 15

other Persons who may be on or about the Site or surrounding premises where
Work is being done. Contractor shall comply with the Project Safety Manual. In
the event that Contractor places twenty (20) or more personnel at the Site,
whether employees or Subcontractors, to perform the Work, Contractor shall
designate a responsible, qualified full-time member of Contractor's or any of its
Subcontractor's organizations at the Site whose duty shall be taking reasonable
measures for the prevention of incidents and injuries and addressing unsafe and
undesirable behavior for each of the following two (2) areas: environmental
matters (EPA and state -level) and safety matters, as each area relates to activities
generally and the Work specifically.
5.18.2 Contractor shall be responsible for the safety of all Persons
working at the Site or who enter the Site for any purpose until the Substantial
Completion Date. Contractor shall undertake reasonable measures to ensure that
all Persons working at the Site or who enter the Site for any purpose comply with
all Applicable Laws relating to health and safety. Contractor shall provide
security and fencing at the Site and any other reasonable measures required to
prevent vandalism, theft and danger to the System, the Site, Equipment and
personnel. Without limiting the generality of the foregoing, Contractor shall: (a)
take all reasonable precautions to prevent injury to all Persons on the Site and
arrange to have first aid administered to all Persons who are injured or become ill
on the Site, and promptly report all accidents and injuries to Owner; (b) provide
sufficient light for all Work; and (c) make contact with the local fire department,
police department, and hospital and be aware of local emergency response
procedures.
5.18.3 Owner shall have the right to require Contractor
immediately to stop Work whenever, in Owner's reasonable judgment, safety
violations or other conditions or circumstances exist that could be reasonably
expected to result in serious personal injury, death, occupational disease or
significant damage to property ("Safety Violations'). The reasonable expense of
any such stoppage of Work, including any standby time or other cost incurred,
shall be at Contractor's expense unless such stoppage is due to the gross
negligence or willful misconduct of Owner. Persons responsible for Safety
Violations shall be removed from the Site until such time as, in the reasonable
judgment of Contractor and Owner, such Persons have received appropriate safety
instructions and training.
5.18.4 All Work done and materials used on the Site shall be in
material compliance with the Safety and Health Standards promulgated under the
Occupational Safety and Health Act of 1970. The location of the Site may require
Contractor to comply with OSHA regulation "Occupational Exposure To
Bloodborne Pathogens" (29 CFR 1910.1030). If applicable, Contractor shall
inform, in accordance with Applicable Law, all of its employees and
Subcontractors of this potential biohazard and ensure that universal precautions
are exercised in the handling of such materials to prevent or eliminate this
potential. Similarly the requirements of OSHA's Hazardous Waste Operations
CONFIDENTIAL 16

and Emergency Response ("HAZWOPER'), regulations (29 CFR 1910.120), may
apply to the Work. Contractor shall inform Owner at the earliest practicable date
as to whether HAZWOPER applies and the basis for that determination.
5.18.5 In the event of an emergency posing or creating an
imminent risk of bodily injury or damage to property in any way relating to the
Work, whether on the Site or otherwise, Contractor shall take such actions as may
be reasonable and necessary to prevent, avoid or mitigate injury, damage or loss
and shall report each such emergency, and Contractor's responses thereto, to
Owner orally within two (2) hours of the occurrence of such emergency.
Contractor shall use commercially reasonable efforts to report an emergency to
Owner in sufficient time to allow Owner to make any required reports to any
Government Authority in accordance with Applicable Laws. In addition,
Contractor shall notify and provide Owner with (a) a reasonably detailed
preliminary accident report within twenty-four (24) hours of any material
accident, including any accidents resulting in bodily injury or property damage or
significant near -miss incidents or fires arising out of or in connection with the
Work, with a final report to follow within five (5) Business Days thereafter,
which reports shall conform to the requirements of Applicable Law, and (b) a
copy of all reports made to Governmental Authorities and insurance companies
relating to any accident or injury occurring during the performance of the Work
within twenty-four (24) hours after their submission. Each final report and each
report made to Governmental Authorities shall also contain an analysis of cause
and a correction plan to prevent similar occurrences.
5.18.6 Except as otherwise authorized by Owner in writing, all
Equipment furnished, delivered or installed by Contractor (including, for the
avoidance of doubt, all materials and tools used by Contractor in the performance
of the Work, but excluding, for the avoidance of doubt, the Owner Equipment) at
the Site shall contain zero percent (0%) asbestos, refractory ceramic fibers, lead,
methylene chloride or polychlorinated biphenyls. If Owner authorizes in writing
such delivery or use, Contractor shall clearly mark all containers or other
materials containing asbestos, refractory ceramic fibers, lead, methylene chloride
or polychlorinated biphenyls, and such containers or materials shall be sealed to
prevent any leakage of asbestos, refractory ceramic fibers, lead, methylene
chloride or polychlorinated biphenyls.
5.18.7 All trucks, vehicles, equipment, machinery, or the like
provided by Contractor shall be in safe operating condition and at all times shall
be properly protected, maintained, and safely operated.
5.18.8 Contractor shall, and shall cause all Subcontractors
performing Work to, establish and implement a substance abuse and drug testing
program that, among other things, prohibits the use of illegal drugs or alcohol on
the Site and prohibits any employees or agents of Contractor or any such
Subcontractor from entering the Site while under the influence of illegal drugs or
alcohol and is otherwise in accordance with this subsection. The program criteria
CONFIDENTIAL 17

shall include, to the extent permitted by Applicable Law: pre -employment five (5)
panel drug screen, post -incident drug screening, random drug screens and clearly
defined responses to positive test results. Drug and alcohol testing should be
performed for the following reasons: (a) pre -employment, (b) post-
accident/incident, (c) monthly random tests (10% of total Site manpower), and (d)
reasonable cause or suspicion. Contractor shall require each Subcontractor
performing Work to submit a monthly report indicating the number of drug and
alcohol tests conducted, including the number of positive test results. For random
testing the names of all employees or Subcontractor employees on Site will be
included in a random drawing of names to be conducted monthly. A number of
employees (no less than 10% of the total on Site work force) will be selected at
random and required to be tested for a five (5) panel drug screen.
5.18.9 Contractor shall follow good construction practices,
including dust monitoring and control, at the Site. Contractor shall have a Person
on Site, with the requisite training and experience, to observe on -Site activities
with a view to, among other things, the potential need for additional worker
protections.
5.18.10 Contractor shall keep the relevant part of the Site where
the System is located and surrounding areas free from waste, garbage and debris.
On or prior to the Final Completion Date, Contractor shall have removed from the
Site all tools, trailers, surplus and waste materials, and shall otherwise leave the
System and the Site in neat and clean condition.
5.18.11 If any Subcontractor employees performing Work at the
Site are non-English speakers, Contractor shall provide a bilingual employee or
translator who shall (a) be responsible for communicating safety and hazard
related communications, emergency response, and other similar information
translated from English for such non-English speaking employees, (b) be on -Site
in the immediate vicinity of non-English speaking employees at all times to
communicate emergency information and instructions, and (c) conduct a walk -
down of the Work area with all non-English speaking employees, translating
signs, explaining hazards and warnings prior to commencing Work. Contractor
shall further ensure that all written and verbal safety training, hazard
communications, and work rules are provided, or a translator is made available to
communicate such instructions orally, in the appropriate language for non-English
speaking employees.
6. Owner Responsibilities.
6.1 Access. Subject to any restrictions imposed by the Ground Lease, Owner
shall provide Contractor with all necessary access to the Site and work areas Contractor requires
for completion of the Work in accordance herewith.
6.2 Compliance with Laws. Owner shall perform its obligations hereunder in
accordance with Applicable Laws, including but not limited to all Environmental Laws.
CONFIDENTIAL 18

6.3 Site Inspection. Owner has conducted a due diligence investigation to
determine the suitability of the Site for the System, and has furnished to Contractor a written
report summarizing the results of Owner's due diligence investigation (the "DD Report').
Contractor has conducted a reasonable visual inspection of the Site (the "Contractor Site
Inspection'), reviewed the DD Report, and has notified Owner that there are no Site conditions
that were evident or readily discernible that shall affect the cost or schedule for the construction
of the System. Any subsurface or other site conditions subsequently discovered at the Site or
changes in the Site parameters that do not conform to the information disclosed in the DD Report
or were not evident or readily discernible in the Contractor Site Inspection, including any
Unforeseen Site Condition, shall allow Contractor to pursue a Change Order pursuant to Article
14 to the extent that such conditions increase the costs to Contractor of the Work or delay the
Construction Schedule. For purposes of this Agreement: (a) "Unforeseen Site Condition" means
any natural or manmade subsurface condition, underground void, caves or groundwater,
Antiquity, flora or fauna protected by Applicable Law, or Hazardous Materials on the Site, not
disclosed in the DD Report or otherwise evident or readily discernible in the Contractor Site
Inspection; and (b) "Antiquity" means any man-made object, fossil, human remains, or evidence
of human burials, which has a reasonable likelihood of being determined by any Governmental
Authority both to be of historical value and to require preservation pursuant to any Applicable
Law relating to antiquities protection, and which was not disclosed in the DD Report or
otherwise evident or readily discernible in the Contractor Site Inspection.
6.4 Inspection. All Work performed by Contractor or its Subcontractors and
all Equipment and the Owner Equipment shall be subject to inspection by Owner, but such right
of inspection, or such inspection, of the Work or Equipment or Owner Equipment shall not
relieve Contractor of its responsibility in accordance with the provisions hereof for the
performance of the Work or otherwise with respect to the Equipment and the Owner Equipment.
Owner shall ensure, in coordination with Contractor, that any inspections by Owner do not
unreasonably interfere with or delay Contractor's performance under this Agreement. In its sole
discretion, Contractor may elect to accompany Owner during such inspection(s). Owner shall
provide Contractor a copy (or, in Owner's sole discretion, a summary) of any report prepared by
Owner for its use resulting from such inspections; provided that, for the avoidance of doubt,
Owner shall have no obligation to provide any such summary or report that constitutes attorney
work product or is subject to the attomey-client privilege.
Commencement of Work.
7.1 Issuance of Notice to Proceed. The Parties shall have no obligation to
perform their respective obligations under this Agreement related to the performance of the
Work prior to the date that Owner delivers the Notice to Proceed to Contractor (the "NTP
Date"). Owner shall be required to issue and deliver the Notice to Proceed to Contractor upon
any conditions or requirements in this Agreement applicable to the commencement of the Work,
including with respect to insurance or otherwise, having been satisfied or complied with, to
Owner's reasonable satisfaction.
7.2 Owner Obligations. Within 7 days of the NTP Date, Owner shall pay, or
cause to be paid to, Contractor, in immediately available funds, an amount equal to! percent
(JM of the Contract Price, which is equal to Upon receipt by Contractor of the
CONFIDENTIAL 19

foregoing item, Contractor shall commence the Work at the Site as soon as practicable in order
to enable Contractor to achieve Substantial Completion by the Guaranteed Substantial
Completion Date.
8. Commercial Delivery of Power.
8.1 Conditions. "Commercial Delivery of Power" shall be deemed to have
occurred upon satisfaction of all of the following conditions:
8.1.1 The System shall be mechanically, electrically, and
structurally constructed, and completed and commissioned in accordance with (x)
the commissioning procedures referred to in Section 5.9, (y) the Contractor
provided commissioning procedures or (z) the engineer's of record
commissioning procedures (any of the foregoing, the "Commissioning
Procedures") and the other requirements applicable thereto as specified in this
Agreement (it being agreed, for purposes of this Section 8.1.1, that the "System"
shall exclude the SCADA or DAS, as applicable, provided that (a) such exclusion
shall not adversely affect safe operation of the System, and (b) Contractor shall
continue to use commercially reasonable efforts to complete the construction,
completion and commissioning of the SCADA or DAS, as applicable, as soon as
practicable);
8.1.2 Contractor shall have provided a certificate to the Owner
that all critical testing including but not limited to the Commissioning Procedures
have been completed and all operating procedures for safe operation including
start-up, shutdown and emergency response are in place;
8.1.3 The System shall be interconnected in accordance with the
Applicable IA Provisions and the System shall have achieved initial
synchronization;
8.1.4 The metering system provided by Owner and to be installed
by Contractor pursuant to Schedule 1C shall have been installed and calibrated
and shall be functioning accurately; and
8.1.5 The Contractor shall have provided to Owner a certificate
of final completion from the electrical inspector of Bertie County, North Carolina,
attaching a copy of such certificate, and the engineer of record shall have
provided a commissioning report that certifies that the Equipment has been
installed, tested and is ready and available to be used for its intended purpose.
8.2 Control; Operations. Upon the System having achieved Commercial
Delivery of Power, the Parties agree that, without limiting in any way Contractor's obligations
under Section 13.2, Owner shall control the System and that the operations of the System shall
be available to commence on a daily or regular basis.
Performance Testiniz.
=1
CONFIDENTIAL 20

9.1 Performance Tests. As a condition of Substantial Completion, Contractor
shall start up and commission the System and perform the Performance Tests in conformance
with the applicable requirements of this Agreement. Contractor's technical personnel (or, when
applicable, the installer and/or manufacturer's personnel, with Contractor's supervision) shall
operate the System during the Performance Tests, although Owner (and Owner's personnel,
agents, representatives, consultants and invitees, including the Lenders) shall be entitled to be
present during any Performance Tests. Contractor shall provide Owner with at least five (5)
Business Days' prior written notice of the commencement of any Performance Tests in order to
permit Owner's Representative to coordinate attendance and observation of such Performance
Tests; rop vided, however, that Contractor shall use commercially reasonable efforts to provide
such notice at an earlier date.
9.2 Performance Guarantee. Contractor agrees that the System shall produce
the aggregate electrical output as evidenced by the Performance Tests (the "Performance
Guarantee").
9.3 Satisfaction of Performance Tests. As soon as practicable following
successful completion of any Performance Tests, Contractor shall submit to Owner's
Representative the raw data and completed results of such Performance Tests. By submitting the
foregoing, Contractor represents to Owner that the raw data and completed results are accurate
and the Performance Tests have been conducted in accordance with the applicable requirements
of this Agreement. Within five (5) Business Days after its receipt thereof, Owner shall notify
Contractor whether or not it agrees that the Performance Guarantee has been satisfied, stating, if
it disagrees, in reasonable detail the reasons therefore. In the event that Owner provides timely
written notice that the Performance Guarantee has not been satisfied, Contractor shall, after
receipt of such notice and reasonably promptly, but in no event later than thirty (30) days
thereafter, adjust or modify any of the Work and take all corrective actions so that the System
may successfully achieve the Performance Guarantee and repeat the Performance Tests in
accordance with this Section, without prejudice, however, to any of Owner's rights and remedies
in accordance with this Agreement. If the System cannot be corrected within thirty (30) days
due to the unavailability of equipment or material necessary for the correction of the System and
the Parties agree to a plan in writing for corrective action proposed by Contractor including a
projected timeline in order to meet the Performance Guarantee, then Contractor shall continue to
be assessed Delay Liquidated Damages and be allowed the time in accordance with the agreed
upon corrective action plan to adjust or modify any of the Work so that the System may
successfully achieve the Performance Guarantee and repeat the Performance Tests in accordance
with this Section; provided, however, that if the Performance Guarantee is not satisfied within
such thirty (30)-day period or other agreed upon time limit, Owner shall have the right, at its sole
discretion, to either (i) require Contractor to continue to use commercially reasonable efforts to
improve the performance of the System to achieve the Performance Guarantee and, if applicable,
begin or continue to assess Delay Liquidated Damages or (ii) terminate this Agreement upon
written notice to Contractor and pursue all rights and remedies available to Owner hereunder.
For the avoidance of doubt, Owner's exercise of the right referenced in clause (i) above shall not
preclude or otherwise prejudice Owner from subsequently exercising its right set forth in clause
(ii) above so long as the Performance Guarantee has not been achieved by Contractor. If any
Dispute regarding the satisfaction of the Performance Guarantee arises, either Party shall be
entitled to submit the Dispute to dispute resolution pursuant to Article 30; provided, however,
CONFIDENTIAL 21

that, pending resolution of any such Dispute, Contractor shall continue to take such actions as
Owner may require in its notice. Anything in this Section 9.3 to the contrary notwithstanding,
Contractor shall not be deemed in breach of this Section to the extent that the failure to satisfy
the Performance Test is due to Owner Equipment, provided that Contractor shall have complied
with its obligations set forth in the final sentence of Section 5.16.
10. Substantial Completion.
10.1 Substantial Completion. "Substantial Completion" of the System shall be
deemed to have occurred upon the satisfaction of all of the following conditions:
10.1.1 Contractor shall have satisfied the Performance Guarantee;
10.1.2 Contractor shall have paid any Delay Liquidated Damages
in full;
10.1.3 the System (including the SCADA or DAS, as applicable)
shall be (a) mechanically, electrically, and structurally constructed and completed
in accordance with this Agreement, (b) interconnected, in accordance with the
requirements of the Interconnection Agreement, and (c) generating verifiable,
billing quality electricity production data, as evidenced by the SCADA or the
DAS, as applicable;
10.1.4 Contractor shall have provided a certificate to Owner
stating that all Applicable Permits have been obtained and maintained as required
by Applicable Law, and, to the extent applicable to achieve Final Completion, are
in full force and effect;
10.1.5 Contractor shall have provided the training to Owner's
personnel required pursuant to Section 5.6;
10.1.6 Contractor shall have provided to Owner (a) a list of the
System's major equipment, including the make and model number of all
photovoltaic modules, inverters, trackers, step-up transformers, switchgear and
solar irradiation and meteorological monitoring equipment and (b) a final version
of the Spare Parts List required pursuant to Section 5.8;
10.1.7 the Punch List shall have been agreed upon and accepted in
writing by Contractor and Owner, a complete copy of which shall be attached to
the Certificate of Substantial Completion;
10.1.8 Contractor shall have provided to Owner (a) substantially
complete drafts of an owner's manual and operator's manual for the System, (b)
substantially complete drafts of as -built drawings for the System (including any
mark-ups thereof) and (c) any other Documentation set forth in Schedule 1 C that
is required to be delivered at Substantial Completion;
CONFIDENTIAL 22

10.1.9 Contractor shall have provided to Owner a certificate
executed by an executive officer stating that, except with respect to the Owner
Equipment or as otherwise authorized by Owner in writing, all Work furnished or
delivered by Contractor and all materials and tools used by Contractor on the Site
contain zero percent (0%) asbestos, refractory ceramic fibers, lead, methylene
chloride or polychlorinated biphenyls;
10.1.10 Contractor shall have provided to Owner a cost breakdown
summarizing the components of the Work and breaking down the costs of the
major equipment (excluding the Owner Equipment), materials and labor,
substantially in the form of Schedule 26; and
10.1.11 Contractor shall have submitted to Owner duly executed
conditional lien waivers and releases from Contractor and each Major
Subcontractor, in the form of Exhibit 6.
10.2 Certificate of Substantial Completion. When Contractor believes that it
has achieved Substantial Completion, Contractor shall notify Owner in writing with a Certificate
of Substantial Completion, substantially in the form of Exhibit 4, which certificate shall be
accompanied by Contractor's proposed Punch List and any other information deemed reasonably
necessary by Contractor. Promptly thereafter, Owner shall conduct such investigations and
inspections as it deems necessary or appropriate to determine if Substantial Completion has in
fact been achieved. Within ten (10) Business Days after its receipt of Contractor's notice, Owner
shall notify Contractor either that (a) Substantial Completion has been achieved and countersign
and deliver to Contractor the Certificate of Substantial Completion, or (b) Substantial
Completion has not been achieved, stating in reasonable detail the reasons therefor. In the event
that Owner provides timely written notice that Substantial Completion has not been achieved,
Contractor shall, at its sole cost and expense, insofar as such failure to achieve Substantial
Completion is due to the performance, or lack of performance, of the Work by Contractor,
immediately correct or remedy the defects, deficiencies and other conditions which prevent
Substantial Completion. The foregoing procedures shall be repeated until the date Substantial
Completion has in fact been achieved. Following Substantial Completion, Contractor and Owner
shall from time to time mutually update the Punch List to remove items as and when they are
completed.
10.3 Substantial Completion Date. The effective date of the Certificate of
Substantial Completion shall be the date on which Owner countersigns the Certificate of
Substantial Completion submitted by Contractor to Owner; providedhowever that if within ten
(10) Business Days after its receipt of a Certificate of Substantial Completion, Owner notifies
Contractor that Substantial Completion has been achieved and countersigns such Certificate of
Substantial Completion "as submitted" by Contractor to Owner, with no additional Work having
been performed by Contractor following the submittal of such Certificate of Substantial
Completion, the effective date of such Certificate of Substantial Completion shall be the date on
which Contractor submitted such Certificate of Substantial Completion to Owner. Any Disputes
between the Parties regarding whether or not Substantial Completion has been achieved shall be
resolved in accordance with Article 30.
CONFIDENTIAL 23

10.4 Acceptance. Acceptance by Owner of the Certificate of Substantial
Completion shall not constitute acceptance by Owner of defective or otherwise non -conforming
Work or in any way operate to release Contractor from any obligation under this Agreement
Contract (other than the obligation of Contractor to achieve Substantial Completion).
11. Final Completion.
11.1 Final Completion. "Final Completion" of the System shall be deemed to
have occurred upon the satisfaction of all of the following conditions:
11.1.1 Owner shall have countersigned a Certificate of Substantial
Completion;
11.1.2 all items on the Punch List shall have been completed or
otherwise resolved by mutual agreement of the Parties;
11.1.3 Contractor shall have provided Owner with the final
versions, in hard copy and electronic formats, of an owner's manual, operator's
manual and as -built drawings for the System, together with all other
Documentation required to be delivered to Owner by Contractor pursuant to this
Agreement and Schedule 1C and not otherwise delivered in final form to Owner
in connection with the achievement of Substantial Completion, including QA/QC
and other test and inspection certificates and reports applicable to the Work;
11.1.4 Contractor shall have removed all of its construction
equipment, material and support personnel from the Site;
11.1.5 Contractor shall have provided Owner with redacted
invoices or other documentation evidencing Contractor's proof of purchase of the
Equipment and shall have submitted completed warranty cards for the Equipment
to the original equipment manufacturers (for clarity, excluding in each case the
Owner Equipment);
11.1.6 Contractor shall have provided Owner an affidavit that all
invoices which include sales and use taxes have been paid and that Contractor and
all of its Subcontractors have no outstanding claims or expenses relating to such
sales and use taxes;
11.1.7 Contractor shall have assigned to Owner the Assigned
Warranties as contemplated by Section 4.2 and pursuant to documentation
reasonably satisfactory to Owner;
11.1.8 Contractor shall have provided Owner with duly executed
conditional lien waivers and releases from Contractor and each Major
Subcontractor (and any other Subcontractor who performed Work at the Site, to
the extent obtained by Contractor, after reasonable efforts), in the form of Exhibit
8; and
CONFIDENTIAL 24

11.1.9 the Site shall be free of construction debris.
11.2 Certificate of Final Completion. When Contractor believes that it has
achieved Final Completion, Contractor shall notify Owner in writing with a Certificate of Final
Completion, substantially in the form of Exhibit 5. which certificate shall be accompanied by any
information deemed reasonably necessary by Contractor. Promptly thereafter, Owner shall
conduct those investigations and inspections as it deems necessary or appropriate to determine if
Final Completion has in fact been achieved. Within ten (10) Business Days after its receipt of
Contractor's notice, Owner shall notify Contractor that either (a) Final Completion has been
achieved and countersign and deliver to Contractor the Certificate of Final Completion, or (b)
Final Completion has not been achieved, stating in reasonable detail the reasons therefor. In the
event that Owner provides timely written notice that Final Completion has not been achieved,
Contractor shall, at its sole cost and expense insofar as such failure to achieve Final Completion
is due to the performance, or lack of performance, of the Work by Contractor, immediately
correct or remedy the defects, deficiencies and other conditions which prevent Final Completion.
The foregoing procedures shall be repeated until Final Completion has in fact been achieved.
11.3 Final Completion Date. The effective date of the Certificate of Final
Completion shall be the date on which Owner countersigns the Certificate of Final Completion
submitted by Contractor to Owner; provided, however, that, if, within ten (10) Business Days
after receipt of any Certificate of Final Completion, Owner notifies Contractor that Final
Completion has been achieved and countersigns such Certificate of Fin*"tion "as
submitted" by Contractor to Owner, with no additional Work having been performed by
Contractor following the submittal of such Certificate of Final Completion, the effective date of
such Certificate of Final Completion shall be the date on which Contractor submitted such
Certificate of Final Completion to Owner. Any Disputes between the Parties regarding whether
or not Final Acceptance has been achieved shall be resolved in accordance with Article 30.
11.4 Acceptance. Acceptance by Owner of the Certificate of Final Completion
shall not constitute acceptance by Owner of defective or otherwise non -conforming Work or in
any way operate to release Contractor from any obligation under this Agreement Contract (other
than the obligation of Contractor to achieve Final Completion).
12. Liquidated Damages.
12.1 Commercial Delivery of Power Delay Liquidated Damages. Commercial
Delivery of Power shall occur on or before December 31, 2013. The Parties agree that Owner
would suffer actual damages in the event that Contractor does not achieve Commercial Delivery
of Power by December 31, 2013 and that it would be extremely difficult and impracticable under
presently known and anticipated facts and circumstances to ascertain the actual damages Owner
would incur should Commercial Delivery of Power not occur on or before December 31, 2013.
Accordingly, if Contractor does not achieve Commercial Delivery of Power by December 31,
2013, and such failure is in no way caused by or attributable to actions or inaction of Owner or
the Transmission Provider, Contractor shall pay to Owner, as Owner's remedy for such delay, as
liquidated damages, and not as a penalty, a lump sum payment determined by multiplying (a)
4j1FJ1�by (b) the number of MWac that have not achieved Commercial Delivery of Power
by December 31, 2013 ("Delay Liquidated Damages" or " Delay LDs"). The Delay LDs shall be
CONFIDENTIAL 25

Owner's sole and exclusive remedy for Contractor's failure to achieve Commercial Delivery of
Power by December 31, 2013; provided, however, that the Delay LDs shall not limit any right
Owner may have to terminate this Agreement as a result of such delay pursuant to Section
161.7. If Delay LDs are due and payable in accordance with this Section 12.1, they shall be
payable in accordance with Section 12.4.
12.2 Reserved. .
12.3 Reserved.
12.4 Payment of Delay LDs. Owner shall issue an invoice to Contractor for
any Delay LDs and Contractor shall pay such Delay Liquidated Damages within fifteen (15)
days after receipt of the invoice; provided, however, that, if Contractor fails to pay any such
Delay LDs that are not subject to a good faith dispute, Owner may, without waiving any of its
other rights hereunder, deduct the amount of such Delay LDs that are not in dispute from any
monies due, or that may become due, to Contractor under this Agreement. Late payments of
Delay LDs, including any thereof that were subject to a good faith dispute but which were
subsequently determined to be due and payable in accordance with this Agreement, shall bear
interest from the initial due date until the date actually paid at the Default Rate.
12.5 Delay LDs CaR. The aggregate amount of all Delay LDs shall in no event
exceed $4MMMM
13. Title: Risk of Loss.
13.1 Title. Except as otherwise provided expressly in this Agreement, good,
exclusive and marketable title, free and clear of all Liens (other than Liens created by the non-
payment by Owner of an invoice amount which is not the subject of a good faith dispute), to all
Equipment and to each constituent part thereof shall pass to Owner upon the earliest of the
following: (i) the date that such Equipment or constituent part thereof is delivered to the Site,
(ii) the date that title to such Equipment or constituent part thereof transfers to Contractor or
Subcontractor from a third party vendor; (iii) the date payment of the amount then due under an
invoice covering such Equipment or constituent part thereof is made by Owner to Contractor,
notwithstanding any disputed amounts withheld or offset by Owner against any payment sought
by Contractor in accordance with the terms of this Agreement; and (iv) upon termination of this
Agreement in accordance with its terms. Contractor shall, however, retain care, custody and
control of all of the Equipment and each constituent part thereof, together with the Owner
Equipment, and exercise due care with respect thereto until the earlier of (x) Substantial
Completion and (y) termination of this Agreement. For the purpose of protecting Owner's
interest in all Equipment with respect to which title has passed to Owner but which remain in the
possession of Contractor or another party, together with the Owner Equipment, Contractor shall
take or cause to be taken all steps reasonably necessary under Applicable Laws to protect
Owner's title to the Equipment and the Owner Equipment and to protect Owner against claims
by other parties with respect thereto. Any transfer of title shall in no way affect Owner's other
rights as set forth in other provisions of this Agreement or be deemed an acceptance or approval
of such Equipment (or any Work).
CONFIDENTIAL 26

13.2 Contractor Risk of Loss. From the Effective Date until the Substantial
Completion Date, and subject to Section 13.3, Contractor assumes risk of loss and full
responsibility for the cost of replacing, repairing, restoring or rebuilding any loss or damage to
the System and all Equipment (including temporary materials, equipment and supplies) and
Owner Equipment that are purchased by Contractor or Owner for permanent installation in or for
use during construction of the System, regardless of whether Owner has title thereto under this
Agreement; provided, however, that the foregoing shall not apply with respect to any loss or
damage that is caused by the negligent or willful acts of Owner or its agents, employees or
representatives. For the avoidance of doubt, this Section 13.2 shall apply to any loss or damage
caused by a Force Majeure Event prior to the Substantial Completion Date.
13.3 Owner Risk of Loss. Owner shall bear the risk of loss and full
responsibility in respect of the System (a) from and after the Substantial Completion Date;
provided, however, that the foregoing shall not apply with respect to any, and Contractor shall be
fully responsible for, loss or damage to the System that is caused by (i) the negligent or willful
acts of Contractor, its Subcontractors, or its and their agents, employees or representatives or (ii)
any warranty Work performed by Contractor or any of its Subcontractors and (b) to the extent
such loss is caused by the negligent or willful acts of Owner, its agents, employees or
representatives.
13.4 Contractor Tools. Risk of loss or damage to the equipment or tools of
Contractor, all Subcontractors and their respective employees and agents shall at all times remain
with those parties, and Owner shall have no responsibility for such equipment or tools, unless
such loss is due to the negligent or willful acts of Owner, its agents, employees or
representatives.
14. Changes and Extra Work.
14.1 Changes. Without invalidating this Agreement, Owner may initiate a
change in the Work consisting of additions, deletions or other revisions (each, a "Change") by
advising Contractor in writing. For the avoidance of doubt, a "Change" does not include any
minor modifications in or to the Work (a) not involving (i) extra cost, (ii) change in design,
quality or performance or (iii) adverse effects on the safety of equipment and (b) not inconsistent
with the purposes of the Work. Except if any Change is necessary for the protection of life or
property or for the safety of the Work as a result of a condition posing an imminent danger to the
foregoing, in which case Contractor shall immediately notify Owner in writing, any Change shall
be authorized through a Change Order, which shall only be effective when signed and accepted
by Contractor and Owner.
14.2 Proposal and Change Orders. As soon as practicable after receipt of
notice of a requested Change, Contractor shall, with respect to such Change, prepare and forward
to Owner a proposed Change Order, together with any details of any of Contractor's proposed
adjustments to the Contract Price, Construction Schedule, Guaranteed Substantial Completion
Date or any other terms or conditions of this Agreement. Within ten (10) Business Days after
receipt of a proposed Change Order, Owner shall either (a) return a countersigned copy of the
proposed Change Order to Contractor or (b) provide written notice to Contractor that it does not
CONFIDENTIAL 27

accept the proposed Change Order, describing in reasonable detail its objections to the proposed
Change Order. Owner shall, despite providing such notice to Contractor and in the event that the
Parties cannot agree upon price, (i) require Contractor to perform its obligations hereunder as
would be modified by the Change Order, provided that, if the Parties cannot agree upon price,
any extra or changed Work shall be performed on a time and material basis in accordance with
the rates specified in Schedule IF or (ii) solicit bids from at least three (3) alternate contractors to
perform such proposed extra or changed Work and have an alternate contractor perform the
Work as specified by the applicable Change Order if Contractor fails to match the average of
three (3) alternate contractor prices for such extra or changed Work.
14.3 Performance of Changes. All Changes shall be performed in accordance
with the provisions of this Agreement, except as may be otherwise provided in the Change
Order.
14.4 Contractor Proposed Changes. Contractor (a) may propose Changes to
Owner if those Changes improve the System or are otherwise advisable for the Work but shall
have no right to require a Change which is not contemplated by this Agreement and (b) is
entitled to propose a Change Orders as specified in this Agreement, including under Section 15.1
or 20.3. Any proposed Changes, regardless of whether or not such Change is ultimately accepted
by Owner, shall not affect the obligations of Contractor to perform the Work and to deliver the
System in the form agreed to in this Agreement.
15. Force Majeure.
15.1 Force Majeure. A Party shall promptly notify the other Party in writing of
any delay or anticipated delay in such Party's performance of this Agreement due to a Force
Majeure Event, and the reason for and anticipated length of the delay, as soon as practicable but
in any event within forty-eight (48) hours after such Party learns of the occurrence of the Force
Majeure Event. In the event of any Force Majeure Event, the Party affected by such Force
Majeure Event shall (a) exercise all commercially reasonable efforts to bring the situation caused
by the Force Majeure Event under control and mitigate the extent, duration, and impact of such
Force Majeure Event on the Work and the System and (b) provide periodic reports to the other
Party with respect to its actions and plans for actions in accordance with (a) above and promptly
notify the other Party of the cessation of the event or condition giving rise to the Force Majeure
Event. The Party whose performance is affected by the Force Majeure Event shall be entitled to
a reasonable extension of time for delays due to such Force Majeure Event; provided that any
Force Majeure Event that prevents performance so as to permit termination by the applicable
counterparty of the PPA, the Interconnection Agreement or the Ground Lease (and such Party so
terminates such Project Agreement), or any uncured event of default by the applicable
countelparty under the PPA, the Interconnection Agreement or the Ground Lease that permits
Owner to terminate such Project Agreement (and Owner so terminates such Project Agreement),
shall, in either case, entitle Owner, in its sole discretion, to terminate this Agreement without
penalty. In addition, if a Force Majeure Event delays Contractor's performance of the Work for
a consecutive period of time greater than one hundred eighty (180) days, then Owner, in its sole
discretion, shall have the right to terminate this Agreement without penalty. Any modification to
the Contract Price or Construction Schedule pursuant to this Article 15 shall be documented by a
written Change Order to this Agreement; provided, however, that any change in the Contract
CONFIDENTIAL 28

Price shall only take into account the direct costs, including overhead cost, incurred by
Contractor in connection with the Force Majeure Event and shall not include any profit.
15.2 Project Agreements. Owner shall have the right, in its sole discretion, to
terminate this Agreement, without penalty, by notice of its election thereof in writing to
Contractor, in the event that Owner's right to occupy the Site for the purposes contemplated by
the Ground Lease terminates for any reason other than an event of default by Owner thereunder.
16. Events of Default.
16.1 Contractor Events of Default. Each of the following is a "Contractor
Event of Default":
16.1.1 Contractor effects an assignment or purported assignment
of its rights or duties under this Agreement in violation of Article 44;
16.1.2 Contractor voluntarily commences bankruptcy, insolvency
or similar debtor -relief proceedings, or becomes insolvent or generally does not
pay its debts as they become due, or admits in writing its inability to pay its debts,
or makes an assignment for the benefit of creditors;
16.1.3 Insolvency, receivership, reorganization, bankruptcy or a
similar proceeding is commenced against Contractor and such proceeding is not
dismissed or stayed within a period of ninety (90) days thereafter;
16.1.4 Contractor fails to pay any amount due hereunder to Owner
on the due date and the amount remains unpaid and not disputed in good faith ten
(10) days following receipt of notice thereof from Owner;
16.1.5 Contractor fails to maintain any insurance coverages
required pursuant to Article 24 and Contractor fails to remedy such breach within
five (5) days after the earlier of (a) the date on which Contractor first had actual
knowledge of such breach and (b) the date on which Contractor first receives
notice thereof from Owner;
16.1.6 Any representation or warranty made by Contractor in this
Agreement proves to have been false in any material respect when made (but, if
such breach is capable of being cured, only to the extent such breach continues for
thirty (30) days following receipt of a notice in writing of such breach from
Owner);
16.1.7 Contractor fails to achieve Substantial Completion within
30 days after the Guaranteed Substantial Completion Date;
16.1.8 Contractor fails to achieve Final Completion within 120
days after the Substantial Completion Date; and
CONFIDENTIAL 29

16.1.9 Contractor breaches any of its material obligations under
this Agreement (other than those obligations relating to any of the matters set
forth above in this Section 16.1) and fails to cure such breach within thirty (30)
days following receipt of written notice of such breach from Owner.
16.2 Certain Owner Remedies. In the event of the occurrence of a Contractor
Event of Default, without limiting its other rights and remedies (including, if it so elects in its
sole discretion, to terminate this Agreement), Owner shall have the right to:
16.2.1 take possession of and use the Site and all Work or
Equipment, including tools, appliances, machinery, and equipment thereon, which
shall be provided at cost without payment of any profit or sales commission,
notwithstanding that such may belong to or be rented or leased by Contractor, and
finish the Work by whatever method it may deem expedient (it being understood
that Contractor shall not remove any Work from the Site unless Owner so directs
in writing);
16.2.2 take possession of and keep and take title to any
Equipment, or component thereof, that is to comprise or be incorporated into the
System and is located off Site under Contractor's possession or control and is
unique, specially -designed or manufactured for use or incorporation in the Work
or which is not readily available on the general market without delay; provided,
however, that, to the extent that any such Equipment was not covered by any
invoice previously paid by Owner, the foregoing shall not excuse Owner's
payment obligation with respect to such Equipment;
16.2.3 use any Subcontractor with or without assuming its
Subcontract, and pay it in accordance with the terms of its Subcontract, or in
accordance with such other terms on which Owner and Subcontractor may
mutually agree, and credit payments against the Contract Price or charge
Contractor therefor upon written demand for any sums that are paid directly by
Owner to any Subcontractor for any Work that (a) is not covered by any invoice
that has been previously issued to Owner by Contractor and paid by, Owner
hereunder and (b) if covered by an invoice that has been previously issued to
Owner by Contractor, and paid by, Owner hereunder, is in excess of the invoice
amount allocated to such Work;
16.2.4 suspend all payments due to Contractor; and
16.2.5 require Contractor to assign any or all of the Subcontracts
with a Major Subcontractor to Owner and require Contractor to provide evidence
reasonably satisfactory to Owner that Contractor has assigned such Subcontracts
to Owner including the assignment of any Assigned Warranties to Owner to the
extent that any such Assigned Warranties have not already been assigned to
Owner.
CONFIDENTIAL 30

16.3 Additional Owner Remedies. In the event that Owner elects to terminate
this Agreement as a result of a Contractor Event of Default, and in addition to any rights
otherwise available to Owner hereunder, (a) Contractor shall use commercially reasonable efforts
to reduce or otherwise mitigate any expense or damage to Owner and (b) Owner shall have the
right to complete, or have completed, the Work and seek cover damages for completion of the
Work.
16.4 Cumulative Remedies. The remedies set forth in Section 16.2 and
Section 16.3 are not exclusive but are in addition to any other rights and remedies that may be
available to Owner under this Agreement or Applicable Law.
16.5 Owner Events of Default. Each of the following is an "Owner Event of
Default":
16.5.1 Owner effects an assignment or purported assignment of its
rights or duties under this Agreement in violation of Article 44;
16.5.2 Owner or its guarantor hereunder voluntarily commences
bankruptcy, insolvency or similar debtor -relief proceedings, or becomes insolvent
or generally does not pay its debts as they become due, or admits in writing its
inability to pay its debts, or makes an assignment for the benefit of creditors;
16.5.3 Insolvency, receivership, reorganization, bankruptcy or a
similar proceeding is commenced against Owner or its guarantor hereunder and
such proceeding is not dis ed within a period of ninety (90) days
thereafter;
16.5.4 any representation or warranty made by Owner in this
Agreement proves to have been false in any material respect when made (but, if
such breach is capable of being cured, only to the extent such breach continues for
thirty (30) days following receipt of a notice in writing of such breach from
Contractor);
16.5.5 Owner fails to pay any amount due hereunder on the due
date and the amount remains unpaid and not disputed in good faith ten (10) days
following receipt of notice thereof from Contractor; and
16.5.6 Owner breaches any of its material obligations under this
Agreement (other than those obligations relating to any of the matters set forth
above in this Section 16.51 and fails to cure such breach within thirty (30) days
following receipt of written notice of such breach from Contractor.
16.6 Contractor Remedies. In the event of any Owner Event of Default,
Contractor shall have all rights and remedies that may be available to Contractor under this
Agreement or Applicable Law, including, subject to Section 20.2, the right to suspend
performance of the Work or terminate this Agreement.
17. Intellectual Property.
CONFIDENTIAL 31

17.1 Ownership of Rights in Documentation. Subject to Section 17.3 and
Article 32, all rights, title and interests in and to the Documentation shall be owned by Owner
and the Documentation shall immediately become the property of Owner when prepared by
Contractor pursuant hereto; provided that nothing in the foregoing shall impair, alter or otherwise
affect Contractor's proprietary rights in its patents, copyright rights, trade secrets, products or
other intellectual property in the Documentation or otherwise prejudice the rights of Contractor
derived from Article 32.
17.2 Ownership of Invention Rights. Subject to Section 17.3, any additional
inventions or intellectual property created by Contractor during the performance of the Work
shall be owned by Contractor.
17.3 License. Contractor agrees to grant and hereby grants to Owner, subject to
Owner's obligations under Section 32 an irrevocable, sublicenseable, non-exclusive, royalty -free
license under all patents, copyrights and other proprietary information of Contractor related to
the Work now or hereafter owned or controlled by Contractor to the extent reasonably necessary
for the operation, maintenance, decommissioning or repair of the System or any subsystem or
component thereof designed, specified, or constructed by Contractor under this Agreement. No
other license in such patents and proprietary information is granted pursuant to this Agreement.
18. Contract Price.
18.1 Amount. Subject to the following sentence, as full compensation for the
Work and all of Contractor's obligations hereunder, Owner shall pay to Contractor as the
contract price for the Work hereunder $� (the "Contract Price"). The Contract Price
shall be modified in accordance with Change Orders approved in accordance with Article 14.
The Contract Price shall be paid in accordance with Article 19.
18.2 Fixed Price. Except as otherwise set forth herein (including in connection
with Change Orders approved in accordance with Article 14), the Contract Price is firm and
fixed and not subject to any variation or price adjustments (downward or upward) and includes
all costs and expenses to be incurred by Contractor in connection with the performance of the
Work, including all costs and expenses related to design, engineering, Equipment, erection,
commissioning and Performance Tests, travel, lodging and Applicable Permits.
19. Invoicing and Payment.
19.1 Milestones. The milestones set forth in the Schedule of Values attached
hereto as Schedule IE have allocated to them the amount of the Contract Price which Contractor
shall be entitled to receive upon the completion of the particular milestone. The Parties
acknowledge that payment may include materials and Equipment not yet incorporated into the
System that have been delivered to and suitably stored at the Site or, if agreed to in writing, at
designated off -site locations. Owner and Contractor shall negotiate and agree on appropriate
adjustments of the milestone payments to provide for the effect on the Contract Price arising
from any Change Orders pursuant to the terms of this Agreement.
19.2 Invoices: Lien Waivers and Releases. Upon completion of a particular
milestone set forth in Schedule 1 E, Contractor shall submit (a) an invoice to Owner with respect
CONFIDENTIAL 32

to such milestone that Contractor has completed and for which Contractor has not been paid,
together with (b) any other documentation that Owner may reasonably require to substantiate
Contractor's progress or right to payment. In addition, (i) as a condition to each progress
payment hereunder (other than with respect to Final Completion), Contractor shall provide to
Owner duly executed conditional waivers and releases from Contractor and each Major
Subcontractor, in each case in the form attached hereto as Exhibit 6, and (ii) within five (5)
Business Days after its receipt of each progress payment (other than with respect to Final
Completion), Contractor shall provide in respect of itself and each Major Subcontractor duly
executed unconditional waivers and releases, in each case in the form attached hereto as Exhibit
7. As a condition to payment for Final Completion, Contractor shall provide to Owner duly
executed conditional lien waivers and releases from Contractor and each Major Subcontractor
(and any other Subcontractor who performed Work at the Site to the extent obtained by
Contractor, after reasonable efforts), in each case in the form attached hereto as Exhibit 8, and
within five (5) Business Days after its receipt of the milestone payment for Final Completion,
Contractor shall provide to Owner unconditional waivers and lien releases duly executed by
Contractor and each Major Subcontractor (and any other Subcontractor who performed Work at
the Site, to the extent obtained by Contractor after reasonable efforts), in each case in the form
attached hereto as Exhibit 9.
19.3 Payments. Invoices shall be sent by e-mail with confirmation of receipt
(automatic responses not being sufficient for confirmation), and Owner must receive the invoice
and, if applicable, any attached documentation, on the same date. If any invoice is deficient in
any material respect, Contractor shall be required to resubmit that invoice in proper form before
Owner incurs any obligation to pay any portion of it. Except for any portions of any invoices
disputed in good faith, invoices shall be paid by Owner within fifteen (15) days of receipt by
Owner, and Owner shall have the right to withhold payment on any such disputed portions until
such Dispute is resolved in accordance with Article 30. If a payment obligation falls due on a
day other than a Business day, the obligation shall be deemed to be due on the next Business day.
Overdue payment obligations of Owner hereunder, including those payment obligations that
were previously subject to a Dispute and are subsequently found to be due and payable in
accordance with this Agreement, shall bear interest from the initial date due until the date paid at
the Default Rate.
19.4 Final Invoice. Upon Final Completion, Contractor shall submit to Owner
a final invoice which shall set forth all remaining amounts due to it pursuant to this Agreement.
The final invoice shall also include, in addition to the documentation otherwise required by this
Article 19 an affidavit stating that all sales taxes have been paid.
19.5 Set Off. Owner may set off or deduct any undisputed amounts due and
payable by Contractor to Owner hereunder, including any Delay Liquidated Damages, from any
amounts due and payable by Owner to Contractor.
19.6 No Acceptance by Payment. No partial payment made under this
Agreement shall be construed to be acceptance or approval of any part of the Work or to relieve
Contractor of any of its obligations under this Agreement.
20. Suspension of the Work.
CONFIDENTIAL 33

20.1 By Owner. Owner may, in its sole discretion, direct Contractor to suspend
all or any portion of the Work for such period of time as Owner shall specify in the written
notice thereof to Contractor (with such suspension to commence on the date specified therein).
Contractor shall resume any suspended Work in accordance with a further notice from Owner to
such effect.
20.2 By Contractor. Contractor may suspend the Work temporarily if Owner
fails to make any undisputed payment within ten (10) days after receipt of written notice that
such payment is past due; provided, however, that Contractor shall, promptly following receipt
of any such payment by Owner, resume the Work. If a suspension of the Work pursuant to this
Section 20.2 continues for more than sixty (60) days, Contractor shall be entitled to terminate
this Agreement.
20.3 Resumption of Work. After Contractor resumes the performance of the
Work, Contractor shall examine the Work affected by the suspension. Contractor shall make
good any defect, deterioration or loss of the construction or the Work affected that may have
occurred during the suspension period. Costs properly incurred by Contractor (including
mobilization costs, insurance fees and others) shall be added to the Contract Price through a
Change Order in accordance with Article 14, so long as and to the extent the suspension did not
arise due to any act, omission or default on the part of Contractor. In the event of a suspension
pursuant to Section 20.1 or Section 20.2, Contractor shall be entitled to an extension of the
deadlines of this Agreement for the period of the suspension.
21. Taxes.
21.1 Emolovment Taxes. Neither Owner nor any of its Affiliates nor its or
their officers, employees, agents, consultants or other representatives shall have any liability for
any payroll or employment compensation taxes, for Social Security taxes, or for labor -related
withholding taxes, for Contractor and its Subcontractors (including manufacturers) or any of
their employees; and Contractor agrees to hold Owner and its Affiliates and their respective
consultants and other contractors harmless against any claim or liability therefor.
21.2 Sales and Use Taxes on Contractor Tools. Contractor shall pay all taxes
on Contractor's purchases of goods, tools, equipment, supplies and other consumables which are
not permanently incorporated into the System and which remain the property of Contractor.
Contractor shall also pay all taxes attributable to Contractor's construction equipment, temporary
buildings and other property used by Contractor in its performance of this Agreement.
Allowance for such taxes is included in the Contract Price, and Contractor shall pay those taxes
when assessed, without claim against Owner for reimbursement. Contractor shall impose a
similar obligation on all Subcontractors and shall ensure that no Subcontractor shall have any
claim against Owner for reimbursement of those taxes.
21.3 Sales and Use Tax on Equipment and Materials. Notwithstanding the
above, the Contract Price includes monies for the payment of any sales, use and privilege taxes
on Equipment incorporated into the System. .Owner is currently authorized under the North
Carolina General Statutes to purchase certain equipment exempt from the sales and use tax, but
subject to the privilege tax at a rate of I % with a maximum tax of eighty dollars ($80) per article.
CONFIDENTIAL 34

Owner will assist Contractor in identifying which items of Equipment will be subject to the
privilege tax. Owner will issue Form E-595E to Contractor to support the exemption from the
sales and use tax on Equipment incorporated into the System. Contractor shall register with the
State of North Carolina for payment of the privilege tax. Contractor will issue Form E-595E to
its Subcontractors to facilitate exempt purchases of items of Equipment subject to the privilege
tax as identified by Contractor. As required by law, Contractor (or Subcontractor(s), if required
by or permitted by law) will accrue the privilege tax on these purchases and remit the appropriate
amount to the State of North Carolina. Sales or use tax should be paid by Contractor and/or a
Subcontractor(s), as applicable, on its purchases of Equipment to be incorporated into the System
and subject to the North Carolina sales or use tax.
21.4 Other Contractor Taxes. Contractor shall be solely responsible for the
reporting, filing and payment of any and all taxes associated with payments received for the
Work, Contractor's income taxes in respect of this Agreement, and all payroll taxes, income tax
withholding, social security contributions and any payroll -related tax, fees or similar charges on
wages or fees paid to its employees and agents for services. Contractor shall be responsible for
complying with all reporting, payment, and other requirements and for obtaining the benefit of
any provision of any law that exempts any portion of the payments received for the Work from
any tax.
21.5 Owner Taxes. Except as otherwise provided in this Agreement, Owner
shall pay all applicable taxes related to the System and the Site (including any applicable
property taxes).
22. Representations and Warranties; Cooperation.
22.1 Representations and Warranties of Contractor. Contractor represents and
warrants to Owner as of the Effective Date that:
22.1.1 Contractor is a limited liability company duly organized,
validly existing, and in good standing under the laws of the State of North
Carolina, and has full power to engage in the business it presently conducts and
contemplates conducting, and is and will be duly licensed or qualified and in good
standing under the laws of the State of North Carolina and in each other
jurisdiction wherein the nature of the business transacted by it makes such
licensing or qualification necessary and where the failure to be licensed or
qualified would have a material adverse effect on its ability to perform its
obligations hereunder.
22.1.2 Contractor has (either directly or through its
Subcontractors) all the required authority, ability, skills, experience and capacity
necessary to perform the Work in a timely and professional manner, utilizing
sound engineering principles, project management procedures, construction
procedures and supervisory procedures, all in accordance with Industry Standards.
CONFIDENTIAL 35

22.1.3 The execution, delivery and performance by Contractor of
this Agreement have been duly authorized by all requisite action of its governing
bodies;
22.1.4 The execution, delivery and performance by Contractor of
this Agreement will not (a) violate or conflict with any covenant, agreement or
understanding to which it is a party or by which it or any of its properties or assets
is bound or affected, or its organizational documents or (b) subject the System or
any component part thereof to any lien other than as contemplated or permitted by
this Agreement.
22.1.5 The individual executing this Agreement on behalf of
Contractor has been duly authorized to do so and this Agreement constitutes a
legal, valid and binding obligation of Contractor, enforceable against it in
accordance with its terms, subject as to enforceability of remedies to limitations
imposed by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the enforcement of creditors rights generally and
general principles of equity.
22.1.6 There are no actions, suits, proceedings or investigations
pending or, to Contractor's knowledge, threatened against it before any
Governmental Authority that individually or in the aggregate could result in any
materially adverse effect on the business, properties or assets or the condition,
financial or otherwise, of Contractor or in any impairment of its ability to perform
its obligations under this Agreement.
22.1.7 There are no strikes, lockouts or other labor disputes
pending, or, to Contractor's knowledge, threatened or scheduled to occur, with
respect to any of the factories, offices or other facilities of Contractor. To the best
of Contractor's knowledge, there are no strikes, lockouts or other labor disputes
pending, or threatened or scheduled to occur, with respect to any of the factories,
offices or other facilities of any of its Subcontractors.
22.1.8 No Applicable Permit is required on the part of Contractor
in connection with the execution, delivery and performance by Contractor of its
obligations under this Agreement, except those (a) which are listed on Schedule
5.14 and which have already been obtained and are in full force and effect or (b)
which have been applied for and are listed on Schedule 5.14 and which Contractor
anticipates will be timely obtained in the ordinary course of performance of this
Agreement and before being required by Applicable Law and the Construction
Schedule.
22.2 Representations and Warranties of Owner. Owner represents and warrants
to Contractor as of the Effective Date that:
22.2.1 Owner is a limited liability company duly formed and
validly existing under the laws of the State of Delaware and has full legal capacity
CONFIDENTIAL 36

and standing to pursue its limited liability company purpose (including the
capacity to dispose of and encumber all of its assets) and full power to engage in
the business it presently conducts and contemplates conducting, and is and will be
duly licensed or qualified and in good standing under the laws of each jurisdiction
wherein the nature of the business transacted by it makes such licensing or
qualification necessary and where the failure to be licensed or qualified would
have a material adverse effect on its ability to perform its obligations hereunder.
22.2.2 The individual executing this Agreement on behalf of
Owner has been duly authorized to do so and this Agreement constitutes a legal,
valid and binding obligation of Owner, enforceable against it in accordance with
its terms, subject as to enforceability of remedies to limitations imposed by
bankruptcy, insolvency, reorganization, moratorium or other similar laws relating
to or affecting the enforcement of creditors rights generally and general principles
of equity.
22.2.3 The execution, delivery and performance by Owner of this
Agreement have been duly authorized by all requisite action of its governing
bodies. Owner has obtained all consents, approvals, authorizations or orders of
third parties, including Governmental Authorities, if any, necessary for the
authorization, execution and performance of this Agreement by Owner.
22.2.4 The execution, delivery and performance by Owner of this
Agreement will not violate or conflict with any covenant, agreement or
understanding to which it is a party or by which it or any of its properties or assets
is bound or affected, or its organizational documents.
22.2.5 There are no actions, suits, proceedings, or investigations
pending or, to Owner's knowledge, threatened against it before any Governmental
Authority that individually or in the aggregate could impair Owner's ability to
perform its obligations under this Agreement.
22.3 Cooperation. Upon the receipt by a Party of a written request from the
other Party, each Party shall execute such additional documents, estoppels, instruments and
assurances and take such additional actions as are reasonably necessary and desirable to carry out
the terms and intent hereof, all on terms and conditions negotiated by the Parties in good faith.
Neither Party shall unreasonably withhold, condition or delay its compliance with any reasonable
request made pursuant to this Section, but neither Party shall be obligated to execute any
document contemplated hereby if the Parties are unable in good faith, after using commercially
reasonably efforts, to negotiate the terms and conditions of such document.
23. Warranty.
23.1 Contractor System Warranty. Contractor warrants, commencing on the
Substantial Completion Date and for a period of two (2) years thereafter (as may be extended as
provided below, the "Warranty Period'), that (a) at the time of Substantial Completion, the
System, including all Equipment (but excluding the Owner Equipment), will be new and of good
CONFIDENTIAL 37

quality, and (b) the System (excluding the Owner Equipment, but not the Work relating thereto)
will be free from errors and defects in materials, workmanship and design and shall conform to
the requirements and standards set forth in this Agreement, including the Scope of Work and
Equipment manufacturers' requirements. Notwithstanding the foregoing, this warranty shall not
include any deficiencies covered under warranty statements provided by Major Subcontractors as
shown in Schedule 4.2. The Warranty Period for any repaired or replaced part of the System that
is repaired or replaced within the last year of its Warranty Period shall be extended until one (1)
year after the date of the completion of such repair or replacement.
23.2 System Warranty Work. If, at any time after the Substantial Completion
Date and prior to the expiration of the Warranty Period, Owner notifies Contractor of any failure
or breach of the Warranty set forth in Section 23.1, Contractor shall, at Contractor's sole cost and
expense (including the cost of transportation, labor, equipment, parts and all other incidental and
other "in and out" costs associated therewith), promptly correct such failure or breach in a
manner and at such times that reasonably minimize the nature and extent of any interruption of
Owner's operation of the System, whether by repair, retrofit, replacement or otherwise (which
corrective action shall include any necessary removal, disassembly, re -design, reinstallation,
reassembly, reconstruction, re -grading or re -testing and commissioning of any part or portion of
the System connected to, damaged or otherwise affected by such failure, breach or corrective
action) and otherwise cause the System to comply with the foregoing Warranty and this
Agreement. If any such corrective action affects the accuracy of any Documentation, Contractor
shall, at its sole expense, furnish Owner with corrected Documentation. All parts and
components employed in repairs and replacements to the System shall be subject to the foregoing
Warranty and have a level of quality and workmanship equivalent to that required of the Work as
initially installed under this Agreement and shall conform in all material respects to the
requirements of this Agreement, including any particular make or model provided in Schedule
I or elsewhere in this Agreement. Any corrective work performed by Contractor pursuant
hereto (a) shall be completed within a reasonable period of time, (b) shall address the cause, and
not just the effect, of such failure or breach and (c) shall be subject to such tests and inspections
as Owner may require in its reasonable discretion, and Contractor shall demonstrate to the
reasonable satisfaction of Owner that such failure or breach has been properly corrected. If
Contractor fails to initiate and diligently take steps to promptly correct such failure or breach
within fifteen (15) Business Days after Contractor receives Owner's notice of any such failure or
breach and to pursue that corrective action fully and continuously thereafter, Owner may
undertake or arrange corrective action at Contractor's expense. Any such corrective action by or
on behalf of Owner performed in accordance with this Section, this Agreement (including
Schedule I1 and Industry Standards pursuant to the previous sentence shall not limit, impair or
void the Warranty.
23.3 Warranty Exceptions. Contractor shall have no responsibility with respect
to any failure or breach of the Warranty set forth in Section 23.1 to the extent that such failure or
breach is the result of any of the following:
23.3.1 Alterations or repairs made to the System's supporting
structure, or to any part of the System or associated wiring and parts, without
Contractor's prior written approval, which shall not be unreasonably withheld or
delayed, unless permitted by, and then in accordance with, Section 23.2;
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23.3.2 Use of the System beyond the scope contemplated in its
operating manuals or technical specifications; and
23.3.3 Defects caused by Owner's failure to comply with the
operation and maintenance manuals and manufacturers' guidelines applicable to
the System.
23.3.4 Force Majeure Events; and
23.3.5 Deficiencies covered under the Assigned Warranties of the
Major Subcontractors and any warranty for the Owner Equipment.
23.4 Reserved.
23.5 Intellectual Property. Contractor represents and warrants that: (a) no
portion of the Work, System (other than the Owner Equipment) or Documentation, or any use
thereof, will infringe or misappropriate any right of any Person, including any copyright, patent
right, trademark right, trade secret right or confidentiality right of any Person; and (b) there are
no past or present actions, suits or proceedings, nor any actions, suits or proceedings that have
been threatened, that allege that any portion of the Work, System (other than the Owner
Equipment) or Documentation, or any use thereof, infringes upon or misappropriates any such
right of a Person. In the event of a breach of the foregoing, Contractor shall provide the remedy
in Section 25.3.
23.6 Documentation. Contractor warrants that, from the period on which any
final Documentation is provided by Contractor to Owner until the end of the Warranty Period, all
such Documentation, including the written instructions regarding the use of Equipment in
operation and maintenance manuals, shall be complete and accurate as of the time such
Documentation is provided by Contractor to Owner. If Owner notifies Contractor of, or
Contractor otherwise becomes aware of, any failure or breach of the Warranty provided by
Contractor in this Section 23.6 prior to the end of the Warranty Period, Contractor shall, at its
sole expense, furnish Owner with corrected Documentation.
23.7 Title. Contractor warrants that the System (other than the Owner
Equipment) shall be free from encumbrances to title when title thereto purports to transfer to
Owner pursuant to Section 13.1.
23.8 Operation of the System. Contractor acknowledges that the operation of
the System without interruption or disruption is a matter of paramount importance to Owner and
that a breach or failure of any Warranty could jeopardize its continued operation in whole or
part. Accordingly, Contractor shall use its best efforts, in good faith, to correct any such breach
or failure in accordance with this Article 23 so as to minimize revenue loss to Owner and to
avoid disruption of Owner's operations at the Site.
23.9 Disclaimer. CONTRACTOR'S SOLE WARRANTY HEREUNDER
FOR THE SYSTEM AND THE DOCUMENTATION SHALL BE AS SET FORTH IN THIS
ARTICLE 23 AND, EXCEPT AS SET FORTH IN THIS ARTICLE 23, CONTRACTOR DOES
NOT MAKE (AND HEREBY EXPRESSLY DISCLAIMS) ANY OTHER WARRANTIES IN
CONFIDENTIAL 39

RESPECT TO THE SYSTEM OR THE DOCUMENTATION OF ANY KIND
WHATSOEVER, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. CONTRACTOR SHALL NOT BE LIABLE
FOR ANY DEFECT OR DEFICIENCY IN THE WORK TO THE EXTENT THAT THE
SAME RESULTS FROM THE SPECIFIC WRITTEN DIRECTION OF OWNER RELATING
TO THE WORK OR THE SYSTEM; PROVIDED THAT ANY SUCH DEFECT OR
DEFICIENCY IS NOT THE RESULT OF CONTRACTOR'S FAILURE TO PROPERLY
IMPLEMENT THE WORK IN ACCORDANCE WITH THIS AGREEMENT. THE SCOPE OF
SUCH WARRANTY WILL NOT INCLUDE THE ASSIGNED WARRANTIES ASSIGNED
BY CONTRACTOR TO OWNER PURSUANT TO SECTION 4.2.
24. Insurance.
24.1 Coverages. Contractor shall, at its expense, procure or cause to be
procured and maintain or cause to be maintained in full force and effect at all times commencing
on the Effective Date and continuing until Final Completion, the insurance coverages specified
in Schedule 24. Contractor shall require its Subcontractors, at their expense, to procure or cause
to be procured and maintain or cause to be maintained in full force and effect at all times the
insurance coverages specified in Schedule 24 or Contractor may provide such coverage on their
behalf. All such insurance coverage shall be in accordance with the terms of this Article 24 and
Schedule 24. Contractor and its Subcontractors shall not be required to procure, maintain or
cause to be maintained insurance except as specifically set forth in this Article 24 and in
Schedule 24.
24.2 Additional Coverages. Subject to the prior agreement of the Parties,
additional insurance coverages can be included, at Owner's cost and responsibility, under
Contractor's insurance policies puruant to Section 24.1.
24.3 Policy Requirements. The insurance required of Contractor and its
Subcontractors hereunder shall (a) be primary coverage without the right of contribution from
Owner, and (b) include contractual liability in said amount for an insured contract to specifically
cover Contractor's obligations under this Agreement and Subcontractors' obligations, if any, and
(c) name Owner and its Affiliates as additional insureds except for Worker's Compenstation and
Employer's Liability coverage. All such insurance policies shall be with financially sound and
reputable insurance companies that have an (i) A.M. Best rating of A- and a financial strength
category of "XII" or higher, (ii) a Standard & Poor's financial strength rating of A- or higher, or
(iii) are otherwise reasonably satisfactory to Owner; and all such policies shall be on terms that
are reasonably satisfactory to Owner. In addition, all such insurance policies shall include a
waiver of subrogation rights against Owner and its Affiliates and its and their respective
directors, officers and employees, and of any right of the insurers under Contractor's
Commercial General Liability policy. To the extent the consent of any insurance carriers or
underwrites under Contractor's insurance policies is required to waive subrogation rights in
accordance with this Section 24.3, Contractor shall obtain and provide the same to Owner within
five (5) Business Days from the Effective Date.
24.4 Certificates and Notice. Within ten (10) Business Days after the Effective
Date, and upon Owner's request annually thereafter, Contractor shall deliver to Owner
CONFIDENTIAL 40

certificates of insurance evidencing the coverage required hereunder as of the Effective Date.
Contractor shall endeavor to provide Owner at least thirty (30) days' prior written notice in the
event of any material modification, cancellation or termination of coverage required to be
maintained by Contractor and its Subcontractors hereunder. If at any time the insurance to be
provided by Contractor hereunder shall be reduced or cease to be maintained, then (without
limiting the rights of the Owner in respect of any default that arises as a result of such failure)
Owner may at its option take out and maintain the insurance required hereby and, in such event,
Owner may withhold the cost of insurance premiums expended for such replacement insurance
from any payments to Contractor.
24.5 No Limitation. The insurance policy limits set forth herein shall in no way
be construed as limits on the Parties' liability under this Agreement. Neither approval nor failure
to disapprove insurance furnished by Contractor or any Subcontractor shall relieve Contractor
from responsibility to provide, or cause to be provided, insurance as required by this Agreement.
25. Indemnity.
25.1 Contractor Indemnity. Contractor shall indemnify, save harmless and
defend Owner and its Affiliates and its and their respective directors, officers, shareholders,
employees, agents, representatives, successors and assigns (each, a "Owner Indemnitee') from
and against, and pay, any and all damages, liabilities, losses, costs and expenses associated
therewith (including attorneys' fees and other professionals' fees) (collectively, "Losses')
incurred by any Owner Indemnitee in connection with or arising from any claim, demand or
cause of action of every kind and character by any third party (including any Governmental
Authority) for (a) physical damage to or physical destruction of third party property, or death of
or bodily injury to any person (including any of Contractor's or any of its Subcontractors'
personnel, employees or agents) to the extent caused by or arising out of or related to
Contractor's breach of this Agreement or the negligence or willful misconduct of Contractor or
any of its Subcontractors and (b) any violation or alleged violation of Applicable Laws (other
than Environmental Laws) by Contractor, any Subcontractor or any of their respective
employees, personnel, agents, invitees or third parties over which either has control, but, in either
case, not to the extent caused by or arising out of or related to (i) the negligence or willful
misconduct of Owner or its employees, personnel, agents, invitees or other third parties not
under the control of Contractor or (ii) a breach by Owner of its obligations hereunder.
25.2 Contractor Environmental Indemnity. Contractor shall indemnify, save
harmless and defend the Owner Indemnitees from and against, and pay, any and all Losses
incurred by any Owner Indemnitee in connection with or arising from any claim, demand or
cause of action of every kind and character for or by reason of:
25.2.1 any presence of Hazardous Materials on, at or under the
Site caused by Contractor, any Subcontractor or any of their respective
employees, personnel, agents, representatives, invitees or other third parties over
which either has control or for which Applicable Law would otherwise hold
Contractor or any such Subcontractor liable;
CONFIDENTIAL 41

25.2.2 any enforcement or compliance proceeding commenced by
or in the name of any Governmental Authority because of an alleged, threatened
or actual violation of any Environmental Law by Contractor, any Subcontractor or
any of their respective employees, personnel, agents, representatives, invitees or
other third parties over which either has control;
25.2.3 any action reasonably necessary to abate, remediate or
prevent a violation or threatened violation of any Environmental Law by
Contractor, any Subcontractor or any of their respective employees, personnel,
agents, representatives, invitees or other third parties over which either has
control; and
25.2.4 any unauthorized asbestos, refractory ceramic fibers, lead,
methylene chloride or polychlorinated biphenyls furnished or delivered to the Site
or installed as part of the System (exclusive of the Owner Equipment) by
Contractor or any Subcontractor.
25.3 Proprietary Rights Indemnity. Contractor shall indemnify, save harmless
and defend the Owner Indemnitees from and against, and pay, any and all Losses incurred by any
Owner Indemnitee in connection with or arising from any third party claim of (a) infringement or
misappropriation by Contractor (or any Subcontractor) of any patent, copyright, trade secret,
invention, proprietary information, other intellectual property right, or other rights of any third
party (collectively `Infringement Claims") in connection with the System (other than the Owner
Equipment) or any Work, including without limitation, any Documentation, or (b) Contractor's
(or any Subcontractor's) violation of any third -party license to use intellectual property in
connection with the System (other than the Owner Equipment) or any Work, including any
Documentation. Owner agrees that if the operation or use of the System (other than the Owner
Equipment), any Equipment or any Documentation becomes the subject of an Infringement
Claim, Owner will permit Contractor, at Contractor's option and expense for all associated costs,
either (A) to procure the right for such Owner Indemnitees to continue to use the System,
Equipment or Documentation, or part thereof, or (B) to replace or modify the System, Equipment
or Documentation, or any part thereof, with another system, equipment or documentation of
comparable quality and performance capabilities which is non -infringing, provided such
replacement or modification does not cause the System, Equipment, Documentation, or any part
thereof, to fail to comply with any of the non -infringing requirements of this Agreement,
including, but not limited to, all functionality, technical specifications and warranties herein. If
Contractor is obligated, and fails, to perform (A) or (B) of the preceding sentence within sixty
(60) days of the date of the written notice of an Infringement Claim(s) from Owner or any third
party, Owner shall have the right to take such remedial acts it determines to be reasonable to
mitigate any impairment of its use of the System or any Equipment (each a "Remedial Act').
Contractor shall indemnify the Owner Indemnitees for all reasonable amounts paid and
reasonable direct and indirect costs associated with Remedial Acts.
25.4 Owner Indemnity. Owner shall indemnify, save harmless and defend
Contractor and its Affiliates and its and their respective directors, officers, shareholders,
employees, agents, representatives, successors and assigns (each, a "Contractor Indemnitee")
from and against, and pay, any and all Losses incurred by any Contractor Indemnitee in
CONFIDENTIAL 42

connection with or arising from any claim, demand or cause of action of every kind and
character by any third party (including any Governmental Authority) for (a) physical damage to
or physical destruction of third party property, or death of or bodily injury to any person
(including any of Owner's personnel, employees or agents) caused by or arising out of or related
to Owner's performance under this Agreement and (b) any violation or alleged violation of
Applicable Laws (other than Environmental Laws) by Owner or its personnel, employees,
agents, invitees or other third parties over which it has control, but, in either case, not to the
extent caused by (i) the negligence or willful misconduct of Contractor, any Subcontractor or any
of their respective personnel, employees, agents, invitees or other third parties over which either
has control or (ii) a breach by Contractor of its obligations hereunder.
25.5 Owner Environmental Indemnitv. Owner shall indemnify, save harmless
and defend the Contractor Owner Indemnitees from and against, and pay, any and all Losses
incurred by any Contractor Indemnitee in connection with or arising from any claim, demand or
cause of action of every kind and character for or by reason of (a) any presence of Hazardous
Materials on, at or under the Site caused by Owner or any of its employees, personnel, agents,
representatives, invitees or other third parties over which it has control or for which Applicable
Law would otherwise hold Contractor or any such Subcontractor liable; or (b) any presence of a
Hazardous Material on, at or under the Site in existence at any time prior to the NTP Date.
25.6 Indemnitv Procedures. If any claim is brought against a Party with respect
to which such Party has a right to claim for indemnification under this Article 25 (in such
capacity, the "Indemnified Party'), then the Indemnified Party shall (i) promptly notify the other
party (in such capacity, the "Indemnifying Party") thereof in writing of the existence of such
claim and promptly deliver copies of any and all documents served on or otherwise received by
the Indemnified Party with respect to such claim(provided however, that any failure to promptly
notify the Indemnifying Party or deliver such copies will not relieve the Indemnifying Party from
any obligation hereunder except to the extent that the Indemnifying Party is materially
prejudiced by such failure), (ii) allow the Indemnifying Party to assume sole control over the
defense of such claim with counsel reasonably acceptable to the Indemnified Party (unless in the
opinion of counsel for the Indemnified Party there is a conflict of interest between the Parties
with respect to such claim) and (iii) provide, at the Indemnifying Party's cost and expense,
assistance and information reasonably requested from time to time, by the Indemnifying Party.
If the Indemnifying Party does not assume the defense of the Indemnified Party, or if a conflict
precludes the Indemnifying Party from assuming the defense, then the Indemnifying Party shall
reimburse the Indemnified Party on a monthly basis for the Indemnified Party's defense through
separate counsel of the Indemnified Party's choice, provided such counsel shall be reasonably
acceptable to the Indemnifying Party. Even if the Indemnifying Party assumes the defense of the
Indemnified Party, the Indemnified Party, at its sole option, may monitor the defense, at its own
expense, with counsel of its own choice without relieving the Indemnifying Party of any of its
obligations hereunder. No Party shall settle or agree to settle any claim without the prior written
consent of the other Party (not to be unreasonably withheld, conditioned or delayed).
26. Limitation ofLiability.
26.1 No Consequential Damages. EXCEPT (A) IN CASES OF GROSS
NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT OF A PARTY OR (B) TO THE
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EXTENT THE PAYMENT OF ANY DELAY LIQUIDATED DAMAGES BY CONTRACTOR
OR THE PAYMENT OF ANY AMOUNTS BY A PARTY PURSUANT TO SUCH PARTY'S
INDEMNITY OBLIGATION UNDER ARTICLE 25 COULD OTHERWISE BE DEEMED TO
BE SUCH DAMAGES, IN NO EVENT SHALL EITHER PARTY BE LIABLE, WHETHER
BASED ON CONTRACT (INCLUDING BREACH, WARRANTY, INDEMNITY) OR TORT
(INCLUDING FAULT, NEGLIGENCE AND STRICT LIABILITY), UNDER ANY
WARRANTY OR OTHERWISE, RELATING TO OR ARISING OUT OF THE WORK OR
THIS AGREEMENT, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE TERMS OF
THIS AGREEMENT, INCLUDING LOST PROFITS OR REVENUES, COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, INCLUDING
REPLACEMENT POWER, OR BUSINESS INTERRUPTION, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
26.2 Maximum Total Liabilitv. NOTWITHSTANDING ANY OTHER
PROVISION TO THE CONTRARY, WHETHER AN ACTION OR CLAIM IS BASED ON
WARRANTY, CONTRACT (INCLUDING BREACH, WARRANTY, INDEMNITY), TORT
(INCLUDING FAULT, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, UNDER
NO CIRCUMSTANCE SHALL EITHER PARTY'S TOTAL AGGREGATE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE CONTRACT
PRICE (THE "MAXIMUM LIABILITY AMOUNT"); PROVIDED, HOWEVER, THAT THE
MAXIMUM LIABILITY AMOUNT SHALL NOT APPLY TO, AND NO CREDIT SHALL BE
ISSUED AGAINST THAT LIMITATION FOR (A) CASES OF GROSS NEGLIGENCE,
FRAUD OR WILLFUL MISCONDUCT OF A PARTY OR (B) A PARTY'S INDEMNITY
OBLIGATIONS HEREUNDER FOR THIRD PARTY CLAIMS. FOR THE PURPOSE OF
DETERMINING WHETHER THE MAXIMUM LIABILITY AMOUNT HAS BEEN MET,
INSURANCE PROCEEDS RECEIVED FROM THE INSURANCE POLICIES REQUIRED
TO BE MAINTAINED UNDER THIS AGREEMENT SHALL NOT BE INCLUDED.
27. Governing Law: Consent to Jurisdiction, Waiver of Jury Trial.
27.1 Governing Law. The formation, interpretation and performance of this
Agreement shall be governed by and construed in accordance with the laws of the State of North
Carolina, without regard to its conflicts of laws principles.
27.2 Consent to Jurisdiction. For all purposes of any litigation arising out of or
related to this Agreement, and for all purposes of any litigation arising out of or relating to the
transactions contemplated by this Agreement, each Party hereto submits to the exclusive
jurisdiction of the courts of the State of North Carolina and the federal courts of the United
States sitting in the State of North Carolina (or, if such courts do not accept such jurisdiction,
then in any state or federal court in the United States of proper jurisdiction), and hereby
irrevocably and unconditionally agrees that any such litigation may be heard and determined in
such state court or such federal court. Each Party agrees that a final judgment in any such
litigation may be enforced in any other jurisdiction by suit on the judgment or in any other
manner provided by law.
CONFIDENTIAL 44

27.3 Certain Waivers. Each Party irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so: (a) any objection which it may now or
hereafter have to the laying of venue of any litigation arising out of or relating to this Agreement
or any related matter in any state or federal court located in North Carolina; and (b) the defense
of an inconvenient forum to the maintenance of such Proceeding in any such court.
27.4 Service of Process. Each Party irrevocably consents to service of process
by registered mail, return receipt requested, at its address as provided in Article 31. Nothing in
this Agreement will affect the right of any Party hereto to serve process in any other manner
permitted by law.
27.5 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH PARTY HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING TO ENFORCE OR INTERPRET THE PROVISIONS OF THIS
AGREEMENT OR THAT OTHERWISE RELATES TO THIS AGREEMENT.
28. Liens.
28.1 Liens. Contractor shall keep the System, the Site, the Equipment and all
other structures and equipment at the Site free from all Liens (other than such Liens arising from
acts or omissions of Owner, including Liens arising due to the non-payment by Owner of an
invoice or claims against or arising through Owner), and shall promptly notify Owner of any
such Liens.
28.2 Discharee or Bond. Without limiting Contractor's obligations under
Article 25, Contractor shall take prompt steps to discharge or bond any Lien (other than such
Liens arising from acts or omissions of Owner, including such Liens arising due to the non-
payment by Owner of an invoice or claims against or arising through Owner). If Contractor fails
to so discharge or promptly bond any such Lien, Owner shall have the right, upon notifying
Contractor in writing and providing Contractor reasonable time to discharge or bond the Lien, to
take any and all reasonable actions and steps to satisfy, defend, settle or otherwise remove the
Lien at Contractor's expense, including reasonable attorneys' fees, costs and expenses. Owner
shall have the right to deduct and offset any expenses so incurred from any payment due, or
which may become due, to Contractor under this Agreement or to recover those expenses from
Contractor. Contractor shall have the right to contest any Lien, provided that it first must
provide to the lien holder, a court or other third Person, as applicable, a bond or other assurances
of payment necessary to remove such Lien in accordance with the Applicable Laws of the State
of North Carolina.
29. Waiver. The failure of either Party to insist upon or enforce, in any instance,
strict performance by the other Party of any of the terms of this Agreement or to exercise any
rights herein conferred shall not be construed as a waiver or relinquishment to any extent of its
right to assert, or rely upon any such terms or rights on any future occasion. No waiver shall be
valid unless stated in writing and executed by the Party so waiving.
30. Dispute Resolution.
CONFIDENTIAL 45

30.1 Good Faith Negotiations. In the event that a bona fide good faith dispute,
arises out of or is in connection with this Agreement, including any dispute regarding the
existence or validity of this Agreement, performance or termination (a "Dispute'), which either
Party has notified to the other, senior management personnel from both Contractor and Owner
shall meet and diligently attempt in good faith to resolve the Dispute for a period not to exceed
thirty (30) days, unless otherwise mutually agreed upon by the Parties, following one Party's
written request to the other Party for such a meeting. If, however, either Party refuses or fails to
so meet, or the Dispute is not resolved by negotiation, the provisions of Section 30.2 shall apply.
30.2 Right to Pursue Other Resolution. If the last sentence of Section 30.1
shall be applicable, either Party may pursue such remedies as are available to it at law or in
equity in accordance with Section 27. Notwithstanding the foregoing, nothing in this Article 30
shall prevent a Party from pursuing immediate injunctive relief to maintain the status quo or
prevent irreparable harm with respect to any Dispute. .
30.3 Continued Performance. Subject to the provision of Sections 16.5 and
20.1 permitting Contractor to suspend performance as described therein, the commencement of
any dispute resolution procedures specified in this Article 30 shall not excuse Contractor or
Owner from continuing to perform its obligations under this Agreement. Contractor and Owner
shall continue to perform their obligations hereunder in good faith during any ongoing dispute
resolution procedure until final resolution of such dispute is achieved; provided that Contractor is
being compensated for the Work pursuant to the terms of this Agreement and provided that the
Parties agree that such duties and obligations can be safely and prudently performed.
31. Notices and Demands. Except as otherwise expressly provided herein (including
with respect to Section 19.3, any notice, request, demand or other communication required or
permitted under this Agreement, shall be deemed to be properly given by the sender and received
by the addressee if made in writing and (a) delivered in person, (b) mailed, postage prepaid,
either by registered or certified mail, return receipt requested, (c) sent by reputable ovemight
express courier, or (d) transmitted by e-mail if receipt of such transmission by e-mail is
specifically acknowledged by the recipient (automatic responses not being sufficient for
acknowledgment, addressed in each case to the addresses set forth below, or to any other address
either Party shall designate in a written notice to the other Party:
Owner: Windsor Cooper Hill Solar, LLC
c/o DEGS Solar, LLC
139 E. 4th Street
Cincinnati, Ohio 45202
Attention: Brian K. Stallman, Vice President
Telephone: [phone]
Email: [e-mail]
with a copy to
Duke Energy Corporation
139 E. 4th Street
Cincinnati, Ohio 45202
CONFIDENTIAL 46

Attention: George Dwight, Deputy General Counsel
Telephone: [phone]
Email: georze.dwipht duke-energy.com
Contractor: SunEnergyl, LLC
192 Raceway Drive
Moresville, North Carolina 28117
Attention: Kenny Habul, Chief Executive Officer
Telephone: [phone]
Email: ke—n—ny(@.sunenerjzyl.com
32. Nondisclosure: Publicity. Each Party (the "Receiving Party") shall not use for
any purpose other than performing the Work under this Agreement or divulge, disclose, produce,
publish, or permit access to, without the prior written consent of the other Party (the "Disclosing
Party"), any confidential information of the Disclosing Party ("Confidential Information').
Confidential Information includes, without limitation, the terms of this Agreement and the
Schedules and Exhibits attached hereto, all information or materials of the Disclosing Party or its
Affiliates prepared in connection with the Work or this Agreement or otherwise owned or held
by the Disclosing Party or any of its Affiliates, including designs, drawings, specifications,
techniques, models, data, documentation, source code, object code, diagrams, flow charts,
research, development, processes, procedures, know-how, manufacturing, development or
marketing techniques and materials, development or marketing timetables, strategies and
development plans, customer, supplier or personnel names and other information related to
customers, suppliers or personnel, pricing policies and financial information, and other
information of a similar nature, whether or not reduced to writing or other tangible form, and any
other trade secrets. Confidential Information does not, however, include (a) information that the
Receiving Party can demonstrate was available to the Receiving Party on a nonconfidential basis
prior to its disclosure by the Disclosing Party, provided that the source of such information was
not known, after reasonable inquiry, by the Receiving Party to be bound by a confidentiality
agreement with or other legal obligation of confidentiality to the Disclosing Party with respect to
such information; (b) information that is or becomes generally available to the public other than
as a result of a disclosure by the Receiving Party in breach of this Agreement; or (c) information
that becomes available to the Receiving Party on a nonconfidential basis from a Person other
than the Disclosing Party, provided that such Person was not known, after reasonable inquiry, by
the Receiving Party to be bound by a confidentiality agreement with or other legal obligation of
confidentiality to the Disclosing Party with respect to such information. The Receiving Party
shall use the higher of the standard of care that the Receiving Party uses to preserve its own
confidential information or a reasonable standard of care to prevent unauthorized use or
disclosure of such confidential information. Notwithstanding anything herein to the contrary, the
Receiving Party has the right to disclose Confidential Information without the prior written
consent of the Disclosing Party: (i) to a counterparty to any of the Project Agreements that is not
a party hereto, if reasonably required by the applicable terms of any Project Agreement, provided
that, as soon as practicable after such disclosure, the Receiving Party shall inform the Disclosing
Party thereof, (ii) as required by any court or other Governmental Authority, or by any securities
exchange on which the shares of any Party are listed, (iii) as otherwise required by Applicable
CONFIDENTIAL 47

Law, (iv) as required in connection with any government or regulatory filings, including without
limitation, filings with any regulating authorities covering the relevant financial markets, (v) to
its attorneys, accountants, financial advisors or other agents, in each case bound by
confidentiality obligations, (vi) to banks, investors and other financing sources and their
advisors, in each case bound by confidentiality obligations; or (vii) in connection with an actual
or prospective merger or acquisition or similar transaction where the party receiving the
Confidential Information is bound by confidentiality obligations. If a Receiving Party believes
that it will be compelled by a court or other Governmental Authority to disclose Confidential
Information of the Disclosing Party, it shall give the Disclosing Party prompt written notice so
that the Disclosing Party may determine whether to take steps to oppose such disclosure at
Disclosing Party's discretion and sole cost.
Subject to the foregoing and in accordance with Article 40, the Parties shall
jointly agree upon the necessity and content of any press release in connection with the matters
contemplated by this Agreement. Any other publication, news release or other public
announcement by a Party relating to this Agreement or to the performance hereunder shall first
be reviewed and consented to in writing by the other Party, such consent not to be unreasonably
withheld.
33. Time of Essence. Time is expressly agreed to be of the essence of this Agreement
and each, every and all of the terms, conditions and provisions herein.
34. Validity. The invalidity, in whole or in part, of any provisions hereof shall not
affect the validity of any other provisions hereof.
35. Survival. Articles 1, 2, 41 12, 16, 17, 18, 19, 21, 22.11 22.2, 23, 25, 26, 27, 28, 29,
30, 31, 32 35, and 43 and the schedules referenced in such Sections shall survive termination of
this Agreement and shall survive final payment to Contractor following Final Completion.
36. Binding Effect. This Agreement shall be binding on the Parties hereto and on
their respective permitted successors, heirs and assigns.
37. No Oral Modifications. No oral or written amendment or modification of this
Agreement by any officer, director, agent, employee or representative of Contractor or Owner,
either before or after execution of this Agreement, shall be of any force or effect unless such
amendment or modification is in writing and is signed by an authorized officer or representative
of the Party to be bound thereby.
38. Joint Drafting. The Parties have participated jointly in the negotiation and
drafting of this Agreement; accordingly, in the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no
presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any provisions of this Agreement.
39. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which shall constitute one and the same
instrument. Any counterpart may be delivered by facsimile transmission or by electronic
communication in portable document format (.pdf) or tagged image format (.ti , and the Parties
CONFIDENTIAL 48

agree that their electronically transmitted signatures shall have the same effect as manually
transmitted signatures.
40. Announcements and Publications. Each Party shall coordinate with the other
Party with respect to, and provide advance copies to such other Party for review of, the text of
any proposed announcement or publication that includes any non-public information concerning
the Work prior to the dissemination thereof to the public or to any Person other than
Subcontractors or advisors of the Party proposing such announcement, in each case, who agree to
keep such information confidential. If such other Party delivers written notice to the Party
proposing such announcement rejecting any such proposed announcement or publication within
five (5) Business days after receiving such advance copies, the Party proposing such
announcement shall not make such public announcement or publication; providedhowever, that
either Party may disseminate or release such information in response to requirements of
Governmental Authority to the extent required by Applicable Law or the rules of any securities
exchange on which the shares of a Party are traded.
41. Entire Agreement. This Agreement, including any Schedules and Exhibits
attached hereto and incorporated herein by this reference, constitutes the complete and entire
Agreement between the Parties and supersedes any previous communications, representations or
Agreements, whether oral or written, with respect to the subject matter hereof. There are no
additions to, or deletions from, or changes in, any of the provisions hereof, and no
understandings, representations or Agreements concerning any of the same, which are not
expressed herein, unless stated below. THE PARTIES HEREBY AGREE THAT NO TRADE
USAGE, PRIOR COURSE OF DEALING OR COURSE OF PERFORMANCE UNDER THIS
AGREEMENT SHALL BE A PART OF THIS AGREEMENT OR SHALL BE USED IN THE
INTERPRETATION OR CONSTRUCTION OF THIS AGREEMENT.
42. No Agency. This Agreement is not intended, and shall not be construed, to create
any association, joint venture, agency relationship or partnership between the Parties or to
impose any such obligation or liability upon either Party. Neither Party shall have any right,
power or authority to enter into any agreement or undertaking for, or act as or be an agent or
representative of, or otherwise bind, the other Party.
43. Priority of Documents. In the event of conflicting provisions between any of the
Contract Documents, the provisions shall govern in the following priority: first, with respect to
technical matters regarding interconnection requirements, the Interconnection Agreement;
second, duly executed Change Orders and amendments to this Agreement (to the extent not
superseded by a subsequent Change Order or amendment); third, this Agreement and fourth, the
other Contract Documents; provided that in the event of any conflict between the provisions of
the Contract Documents and the Project Agreements, the provisions of the Project Agreements,
in effect on the Effective Date (except for amendments thereto approved in writing by
Contractor) shall control.
44. Assi ment.
44.1 Neither Party shall assign this Agreement or any of its rights hereunder without
the prior written consent of the other Party, which consent shall not be unreasonably withheld,
CONFIDENTIAL 49

denied, conditioned or delayed. Notwithstanding the foregoing, Owner may, upon written
notice, without the need for consent from Contractor (and without relieving itself from liability
hereunder), transfer, pledge or assign any of its rights but not its obligations hereunder (a) as
security for any financing or (b) to an affiliated special purpose entity created for the financing or
tax credit purposes related to the System. Notwithstanding the foregoing, either Party may (i)
transfer or assign this Agreement to any person or entity succeeding to all or substantially all of
the assets of such Party; Provided, however, that any such assignee shall agree to be bound by
the terms and conditions hereof; or (ii) assign its rights under this Agreement to a successor
entity in a merger or acquisition transaction; provided, however, that any such assignee shall
agree to be bound by the terms and conditions hereof. Any assignment made in contravention of
this clause shall be void and unenforceable.
44.2 With respect to an assignment pursuant to clause (a) in the second sentence of
Section 44.1 above, Contractor acknowledges and agrees that, upon receipt of written direction
by a financing -transaction assignee or secured party of Owner ("Lender'), and notwithstanding
any instructions to the contrary from Owner, Contractor will recognize Lender, or any third party
to whom Lender has reassigned the rights of Owner under this Agreement, as the proper and
lawful owner under this Agreement and fully entitled to receive the rights and benefits of Owner
hereunder so long as Lender (or its assignee) timely performs the obligations of Owner
hereunder and Contractor shall tender performance of any and all other covenants by Contractor
under this Agreement to and for the benefit of Lender and as the Lender may direct in the future.
Contractor shall be protected and shall incur no liability in acting or proceeding in good faith
upon any such foregoing written notice and direction by Lender which Contractor shall in good
faith believe (a) to be genuine and (b) a copy of which to have been delivered to Owner.
Contractor shall be under no duty to make any investigation or inquiry as to any statements
contained or matters referred to in any such foregoing notice and direction, but may accept and
rely upon them as conclusive evidence of the truth and accuracy of such statements.
(Signature page follow sJ
CONFIDENTIAL 50

IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Engineering, Procurement and Construction Agreement as of the Effective Date.
WINDSOR COOPER HILL SOLAR, LLC
BY:
Name: Tom McNay
Title: Vice President
SUNENERGYI,LLC
By:
Name: Kenny Habul
Title: Chief Executive Officer
Signature Page to Engineering, Procurement and Construction Agreement
CONFIDENTIAL 51

IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Engineering, Procurement and Construction Agreement as of the Effective Date.
WINDSOR COOPER HILL SOLAR, LLC
Name: Tom McKay
Title: Vice President
SUNENERGYI,LLC
By:
Name: Kenny Habul
Title: Chief Executive Officer
Signature Page to Engineering, Procurement and Construction Agreement
CONFIDENTIAL 51

Attachment 2
EPC Agreement Schedule 5.14 for Windsor Cooper Hill
Confidential Information

C6^f14tAfiak
Schedule 5.14
Permits
Permit/Approval
Permilling Authority
Permit
Approval
Slelns
Named
Responsibility
Dote
Parties
Bertie County
Site Plan
Inspections Department
Approval
106 Dundee Street
Ifa linable
pp
Contractor
Windsor, NC 27983
Berra County
Grading Permit
Inspections Department
106 Dundee Street
Ifapphcable
Windsor, NC 27983
Contractor
Right-OfWay
(ROW)Permit
N
Not necessary
NA
Storm Water
Pollution
Prevention Plan-
Notice of Intent
NCDENR
Owner
Permit (SWPPP
NOD
Building Permit
N :y
Not necessary for
NA
mounted PV
Bence Count)
Electrical Permit
Inspections Department
106 Dundee Street
Interconnect
Windsor, NC 27983
Contractor
Berne County
Electrical Permit
Inspections Department
PV S�vem
106 Dundee Street
Contractor
Windsor, NC 27983
Erasion and
Sedimentation
NCDENR
Owner
Control Plan
Drive%ay Permit
DOT
Owner

Attachment 3
EPC Agreement Change Order No. Windsor001 dated May 14,
2014
Confidential Information

,f-LA
Cbnf;4a14;at t
41-1,zdr,r
5CEEDULEID
Form of Chun Order
CHANGE ORDER
Change Order No. Windsot001 Change Order Date: May 14, 20W
Reference is made to that certain Engineering, Procurement and Construction Agreement (the "EEC
Contras"), dated as of October it, 2013 by and between Windsor Cooper Hill Solar, LLC (the
9 £�') and SunEnergyt, LLC (the "BPC Contractor"), Capitalized terms used but not defined in this
Change Order have the respective meanings specified in the EPC Contract.
(a) General descrlpdon (state as much Information as necessary regarding the history of events
leading up to this proposed Change): Clear trees and other vegetation from 60 acres of land
for Windsor solar project.
(b) Work approach to accomPATh Change: Contracted Phelps & White Construction to clear,
grub, pile, and remove debris from site.
(c) if proposed Grange involves a¢justmenr to Contras price, describe proposed ai justmeal:
Adjustment is due to unseen site conditions during Due Diligence. Once the project was
initiated and heavy vegetation was cleared, it became apparent that much contouring of the
property would be required for racking and panel installation. Due to the time constraints of
the project, a third party vendor was called in to complete the work. This necessitated
additional payment of equipment rental and premium time for the vendor's employees which
increased the total scope of work by $300,000.00. Windsor Cooper dill Solar, LLC has
agreed to pay $ 200,000 and will work to seek reimbursement for $100k through the Town
ofWindsorlease.
(d) Ifproposed Change involves adjutrmenr to Construction Schedide, describe proposed
adjustment Adjustment to contract price is $200,000.00
hereto is
in this
Items)
Description
Cates
Contract Edo Iraaaeee or c. rif y):
$200 000.00
Invoices and cancelled
dtecka ate uteched

Original Contract Price:
Previously approved adjustments (if any) to $ 0.00
Contract Price:
Contract Price adjusted for previously qNNNEW
approved adjustments to Contract Price:
Proposed adjustment to Contract Price
resulting from this Change Order.
Proposed New Contract Price:
Original Guaranteed Substantial Completion
Date:
None
Previously approved adjustments (if any) to
Construction Schedule:
Guaranteed Substantial Completion Date
adjusted for previously approved adjustments
to Construction Schedule:
None
Proposed adjustment to Construction
Schedule resulting from this Change Order:
Proposed New Guaranteed Substantial
Completion Date:
Accepted and agreed to by EPC Contractor and Owner this 14th day of May, 2014 (the "Change Order
Date').
SunEnergyl,lL.0 Windsor Cooper Hill Solar,LL.0
By: Name:
Name: Kenny Habul Narne: Thomas McKay
Title: CEO Title: Vice President

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Attachment 4
Ground Lease and Easement Agreement for Windsor Cooper
Hill
Confidential Information

Conikleo&a
GROUND LEASE AND EASEMENT AGREEMENT
This GROUND LEASE AND EASEMENT AGREEMENT (this "Ground Lease"), is
dated as of October 24, 2013 ("Effective Date") between the TOWN OF WINDSOR and
BERTIE COUNTY, bodies politic, organized and existing under the laws of the State of North
Carolina (collectively referred to as "Owner") and WINDSOR COOPER HILL SOLAR, LLC, a
Delaware limited liability company ("Tenant").
In consideration of the mutual agreements herein contained and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged,
the Parties hereto, Intending to be legally bound hereby, hereby agree as follows:
1. Definitions. For all purposes of this Ground Lease the following terms shall
have the meanings assigned to them in this Article 1, and include the plural as well as the
singular. Capitalized terms used in this Ground Lease and not defined herein shall have the
meaning given in the Option to Lease entered into by and between the Owner and Tenant's
predecessor in interest, Sunenergyl, LLC and dated September 26, 2013.
1.1 "Affiliate" means, when used with reference to a specified Person, any other
Person that directly, or indirectly through one or more intermediaries, controls, is controlled by
or is under common control with the Person specified. For purposes of the foregoing, "control",
"controlled by" and "under common control with" with respect to any Person means the
possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting securities,
partnership Interests or by contract or otherwise.
1.2 "Business Day" means any day other than Saturday or Sunday or a legal
holiday observed by the State of North Carolina.
1.3 "Casualty' means any loss or destruction of or damages to the Facility or the
Site resulting from any act of God, fire, explosion, earthquake, accident or the elements,
whether or not covered by insurance and whether or not caused by the fault or negligence of
either Party, or such Party's employees, agents, contractors, or visitors.
1.4 "Closing" has the meaning set forth in Section 23.2.
1.5 "Commercial Operation Date" means the date upon which Tenant notifies
Owner that the Facility is commercially operational.
1.6 "Environmental Laws" means any federal, state or local law, code, statute,
ordinance, rule, regulation, rule of common law, guideline or informal policy position, relating
to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material; or any substances or mixture of any Hazardous Materials
regulated thereunder, now or hereafter enacted or promulgated (collectively, and including,
without limitation, any such laws which require notice of the use, presence, storage,
generation, disposal or release of any Hazardous Materials to be provided to any party),
including, but not limited to, the following: the Comprehensive Environmental Response,
Compensation and Liability Act, as now or hereafter amended (42 U.S.C. Section 9601, at
se . ; the Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C.
Section 1801, et seq.); the Resource Conservation and Recovery Act, as now or hereafter
amended (42 U.S.C. Section 6901, Rt seg.); and any so-called "Superfund" or "Superlien" law,
or any other federal, state or local statute, law, ordinance, code, rule, regulation, order or
decree regulating, relating to or imposing liability or standards of conduct concerning any
CH•3197385 v5

l jo;tee
hazardous, toxic or dangerous waste, substance or material; or any substances or mixture
regulated under the Toxic Substance Control Act of 1976, as now or hereafter amended (15
U.S.C. Section 2801 se . ; and any "toxic pollutant" under the Clean Water Act, as now or
hereafter amended (33 U.S.C. Section 1251 e( se);and any hazardous air pollutant under
the Clean Air Act, as now or hereafter amended (42 U.S.C. Section 7901 at seg_).
1.7 "Environmental Liability" means any action, lawsuit, claim or proceeding
(including claims or proceedings at common law or under the Occupational Safety and Health
Act or similar laws relating to safety of employees) arising under or related in any way to the
Environmental Laws or which seeks to impose liability for (a) noise; (b) pollution or
contamination of the air, surface water, ground water or land or the clean-up of such pollution
or contamination; (c) solid, gaseous or liquid waste generation, handling, treatment, storage,
disposal or transportation; (d) exposure to or contamination by Hazardous Materials; (a) the
safety or health of employees or (f) the manufacture, processing, distribution in commerce or
use of Hazardous Materials. An "Environmental Liability" includes a common law action,
whether direct or indirect, as well as a proceeding to Issue, modify or terminate an
Environmental Permit, or to adopt or amend a regulation to the extent that such a proceeding
attempts to redress violations of an applicable permit, license, or regulation as alleged by any
governmental authority.
1.8 "Environmental Permit" means any permit, license, approval or other
authorization under any applicable Environmental Laws.
1.9 "Facility" means a solar photovoltaic electric generating facility or facilities and
related Utilities, improvements, equipment, facilities, appurtenances and other improvements
existing on the Effective Date and/or to be developed, constructed, owned, operated and
maintained on the Site and the Easement Areas, including but not limited to all structures,
machinery, equipment, meters, fixtures, interconnections, ancillary equipment and materials,
and all additions, expansions and modifications thereto as may be located on the Site and the
Easement Areas.
1.10 "Force Majeure" means all events beyond the control of the Party affected,
including without limitation flood, earthquake, storm, lightning, fire, explosion, war, riot, civil
disturbances, strikes, and sabotage.
1.11 "Hazardous Materials" means any flammable, reactive, explosive, corrosive or
radioactive materials or hazardous, toxic or dangerous wastes, substances or related
materials or any other chemicals, materials, wastes or substances, exposure to which is
prohibited, limited or regulated by a federal, state, county, regional or local authority, or any
Environmental Laws Including, but not limited to, asbestos, PCBs, petroleum products and by-
products, hazardous air pollutants, or any substance identified, defined or listed as a "toxic
pollutant," "hazardous wastes," "hazardous materials," "hazardous substances," "toxic
substances," "pollutant or contaminant," "hazardous chemical," or any hazardous air pollutant,
or similarly identified in, pursuant to, or for purposes of, any Environmental Laws.
1.12 "Lease Year" means each consecutive 12 month period during the Term
commencing with the first day of the first full calendar month following the Rent
Commencement Date (or if the Rent Commencement Date shall occur on the first day of a
calendar month, commencing on the Rent Commencement Date) and ending on the last day
of the calendar month completing such 12 month period.
1.13 "Official Records" means the Official Records of Bartle County, North Carolina.
CH3197385 v5

1.14 "Owner's Parties" means Owner, its officers, directors, partners, members,
affiliates, lenders, employees, shareholders, attorneys, lessees (other than Tenant),
sublessees, licensees, invitees, contractors, subcontractors, consultants, agents and any of
their respective successors and assigns.
1.15 "Party" or "Parties" means Owner and/or Tenant, as applicable.
1.16 "Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, estate, unincorporated
organization or other business entity, or any governmental authority.
1.17 "Release" means any release, pumping, pouring, emptying, injecting,
escaping, leaching, dumping, seepage, spill, leak, Flow, discharge, disposal or emission of a
Hazardous Material whether on, under or migrating to or from the property of any Party.
1.18 "Rent Commencement Date" means the date that Tenant obtains its Power
Purchase Agreement or the Effective Date, whichever date occurs first. The Effective Date is
the first day after the expiration of the 120-day Initial Option Period contemplated in the Option
to Lease or, if extended, the expiration of any Additional Option Period(s) or upon Tenant's
written notice of its election to lease, which date shall be Inserted into the first paragraph of the
Agreement.
1.19 "Rent Payment Term" means the period of time commencing with the Rent
Commencement Date and expiring at the end of the Term.
1.20 "Site" means the property described on Exhibit A attached hereto together with
all improvements located thereon as of the Effective Date.
1.21 "Tenant's Parties" means Tenant, its officers, directors, partners, members,
affiliates, lenders, employees, shareholders, attorneys, lessees, sublessees, licensees,
Invitees, contractors, subcontractors, consultants, agents and any of their respective
successors and assigns.
1.22 "Transfer" means a transfer or conveyance of Owner's interest In (i) the Site,
(ii) the Easements and/or (!it) this Ground Lease.
1.23 "Utilities" means the services and related improvements, equipment and
facilities necessary for the operation of the Facility, including, but not limited to, natural gas,
electrical power, water, storm water, sanitary sewer, roads, telephone and telecommunication
services, improvements, equipment and facilities.
2. Site Preparation, Lease: Term
2.1 Site Preparation. Tenant agrees to clear, grub, and rake the Property. The cost
of this land clearing work, minus $15,000.00, will be treated as prepayment of the Lease.
Tenant shall be responsible only for the basic site preparation of clearing, grubbing, and
raking, and only the cost of clearing, grubbing and raking will be considered as prepayment of
the Lease. The cost of leveling, grading, mucking, filling, seeding or any other additional site
preparation will not be considered as prepayment of the Lease. Tenant will be responsible for
compliance with any local, state or federal rules or regulations regarding site work, including
but not limited to water quality and air quality regulations. The work will be completed within a
reasonable time after commencement, weather permitting. Tenant will not have to pay rent for
the time period that is prepaid. That time period is calculated by taking the cost of clear, grub
CH•3197385 v5

and rake, subtracting $15,000.00, and then dividing by both the rental obligation for that lease
term and the acreage being leased. If the resulting number of months Includes a fraction of a
month, then the rent paid for that fraction of a month will be pro -rated. Tenant will not allow
any liens to be placed on the Site as the result of land clearing activities. Tenant will post a
sufficient payment bond to assure payment of its contractor and subcontractors.
2.2 Lease of Site. Term Owner hereby leases the Site to Tenant, and. Tenant
hereby leases the Site from Owner, upon the terms and conditions hereof, for a term which
shall commence on the Effective Date, and expire on the date that is fifteen (15) years after
the Commercial Operation Date (the "Initial Term"); provided, that upon not less than 180 days
written notice (a "Renewal Notice") to Owner prior to the expiration of the then expiring term,
Tenant may elect to extend the term of this Lease for a period of five (5) years (the "First
Renewal Term"), followed by up to two additional period(s) of five (5) years each (the "Second
Renewal Term" and 'Third Renewal Term", respectively, and, together with the First Renewal
Term and the Initial Term, collectively, the "Term"), with each such renewal term commencing
on the expiration of the then expiring term and continuing for the period specified in such
Renewal Notice delivered by Tenant.
2.3 Termination Rich. In the event of a condition outside of Tenant's reasonable
control that prevents or materially and adversely affects Tenant's ability to use or operate any
Facility located on the Site for the purposes of generating or selling electricity, Tenant shall
notify Owner ("Tenant's Notice") of the same and the Parties shall meet and discuss whether
there is any commercially feasible alternative for Tenant to maintain its operations on the
Property. If the Parties, each negotiating in good faith, cannot come to a mutually satisfactory
agreement within sixty (60) days following the date of Tenant's Notice, then Tenant may, at
any time following such date, elect to terminate this Ground Lease with respect to all or a
portion of the Site by giving Owner not less than one hundred twenty (120) days notice of such
termination ("Tenant's Election"). In the event Tenant elects to terminate this Ground Lease
with respect to a portion of the Site, Tenant's Election shall contain a description of the portion
of the Site for which Tenant intends to continue this Ground Lease and the Parties shall enter
and execute with due diligence an Amendment to this Ground Lease in order to effectuate any
revision to this Ground Lease that is required as a result of Tenant's Election. Upon the
effective date of any such termination with respect to all of the Site, this Ground Lease shall
terminate and neither Party shall have any further obligations under this Ground Lease, except
as specifically set forth herein. If Tenant elects to terminate this Agreement, it will not be
entitled to reimbursement for any of its land clearing costs.
2.4 Conditions Precedent. It shall be a condition precedent to Owner's obligations
hereunder that (a) Owner shall have complied with the provisions of N.C.G.S. § 160A-269 and
160A-272, which require that the Owner, which is a public body, publish a notice of the offer
and allow 10 days for upset bids, (b) Tenant shall have executed an agreement with Owner
providing for the interconnection of the Facility with the electric distribution system of Owner,
and (c) Tenant shall have executed a Purchase Power Agreement.
3. Severance. The Parties agree that all improvements at any time constructed
by or for Tenant on the Site or within any Easement Area, whether prior to the Effective Date
or after the same, and all equipment at any time acquired by or for Tenant and located on the
Site or within any Easement Area, including (without limitation) all improvements and
equipment comprising the Facility, are hereby severed by agreement and Intention of the
Parties and shall remain severed from the Site and any Easement Area, shall be considered
with respect to the interests of the Parties hereto as the sole and exclusive property of Tenant
or a Financing Party designated by Tenant, and, even though attached to or affixed to or
installed upon the Site or within an Easement Area, shall not be considered to be fixtures or a
CH-3197386 v5

part of the Site or such Easement Area and shall not be or become subject to the lien of any
mortgage or deed of trust heretofore or hereafter placed on the Site or any Easement Area by
Owner. Except as specifically provided for herein and except for property tax [lens, Owner
waives any rights it may have under the laws of the State of North Carolina arising under this
Ground Lease or otherwise to any lien upon, or any right to distress or attachment upon, or
any other interest in, any item constituting part of the Facility or any other equipment or
improvements constructed or acquired by or for Tenant and located on the Site or within any
Easement Area. Upon the termination of this Lease, and subject to any amendment or
extension to this Lease, and except as Owner may otherwise elect as described in Article 6
below, Tenant shall remove any and all of the aforesaid improvements and equipment and
restore the Property to its original condition as of the time of the execution of this Lease.
4. Rent; Tenant costs.
4.1 Rent. During the Rent Payment Term, Tenant shall pay annual rent ("Base
Rent'), in advance, to Owner commencing on the Rent Commencement Date and on each
anniversary of the Rent Commencement Date thereafter (each such payment date, a "Rent
Payment Date"). During the Initial Term and commencing on the Rent Commencement Date,
Base Rent shall be in the amount of Three Hundred and No/100 Dollars ($300.00) per acre of
the Site per year, payable annually in advance. During the First Renewal Term, Base Rent
shall be in the amount of Three Hundred Fifty and No/100 Dollars ($35D.00) per acre of the
Site per year, payable annually in advance. During the Second Renewal Term, Base Rent
shall be in the amount of Three Hundred Fifty and No/100 Dollars ($350.00) per acre of the
Site per year, payable annually in advance. During the Third Renewal Term, Base Rent shall
be in the amount of Three Hundred Fifty and No/100 Dollars ($350.00) per acre of the Site per
year, payable annually in advance. The acreage of the Site shall be as determined by
Tenant's survey (the "Survey") of the Site and any applicable Easement Areas.
4.2 Int rest. Any monetary payment due Owner hereunder not received on or
before such payment is due, other than late charges, not received by Owner within 10
Business Days after Tenant receives notice from Owner that such payment shall be due shall
bear interest from the due date until the date paid. The interest charged shall be equal to the
lesser of 10% per annum or the maximum rate allowed by law.
4.3 Tenant Costs.
(a) Tenant covenants and agrees to pay any personal property taxes or
special assessments, if any, that may be levied or assessed against any improvements, or
other personal 'property, situated on the Property, water and sewer rents/charges, liens,
utilities charges, insurance and other costs which the Owner would not incur but for this
Agreement that are due and payable during the Term hereof and are at any time imposed or
levied against the Facility, the Easement Area or the Site, directly to the agency, entity,
municipality or other party charged with collection of same. In the event Tenant fails to make
any such payment when due, Owner may in its sole discretion pay the same on behalf of
Tenant, and the same shall be due to Owner as repayment in which event Owner shall have
the right, after ten (10) days Notice to Tenant, to charge Tenant interest thereon beginning ten
(10) days from the date of such Notice as provided in Section 4.2.
(b) Tenant will furnish to Owner, upon request once per year, a proof of
Payment of all items referred to in Section 4.3(a) that are payable by Tenant; provided, that
Tenant will in addition furnish to Owner proof of payment of any taxes or payments in lieu
thereof and proof of payment of insurance premiums promptly after demand therefor,
CH-3197355 v5

5. Further Assurances. Owner and Tenant shall conduct good faith negotiations
with due diligence and upon reasonable terms concerning any further instruments and
documents, including, without limitation, a shared facilities agreement, If reasonably
necessary, and take any further action that may be reasonably necessary to effectuate the
purposes and intent of this Ground Lease. To such end, Owner and Tenant shall conduct
good faith negotiations with due diligence and upon reasonable terms concerning any
nonexclusive easements and rights -of -way in, to, over, under and across the Site and/or
adjacent lands owned or controlled by Owner, and any improvements thereon, as the Parties
mutually determine may be necessary or desirable in connection with the development,
construction, ownership, operation, maintenance and expansion of the Facility (the
"Operational Easements") as well as a solar skyway easement (the "Solar Skyway Easement"
(the Operational Easements and the Solar Skyway Easement herein collectively referred to as
the "Easements", each also herein sometimes referred to as an "Easement"), which
Easements shall burden real property owned or controlled by the Owner (the "Easement
Areas"). All Easements shall (a) be non-exclusive, (b) be co-terminous with the Term hereof
(as the same may be extended), (c) be appurtenant to the Site, benefit and run with the Site
and burden and run with the Easement Areas, and (d) require Tenant to bear the cost of
restoring the condition of the Easement Area after the exercise of any rights of access under
such Easement. Without limiting the generality of the foregoing, Owner acknowledges and
agrees that Tenant may request Easements for solar skyway protection, construction laydown
areas, pedestrian and vehicular ingress, egress and access, parking and circulation, electrical
distribution lines, water lines, fire lines, gas lines, storm drainage, sewer lines, telephone lines,
fiber optic lines, and other or associated Utilities, facilities and/or equipment serving the
Facility and/or the Site. Upon reaching mutual agreement concerning any such request, the
Parties shall execute one or more easement agreements reflecting the certain of the
Operational Easements in substantially the form of attached Exhibit B, and a Solar Skyway
Easement in substantially the form of Exhibit C, which easement agreements shall be
recorded in the Official Records at Tenant's expense. Owner shall not grant or convey any
easement or other interest that, if used or enjoyed in accordance with its terms, would interfere
with Tenant's operation, use and enjoyment of the Facility, the Site, and/or the Easements. If
there are any mortgages, deeds of trust or other security Interests with respect to the Site
and/or any Easement Area(s), within 30 days after Tenant's written request, Owner shall
obtain a commercially reasonable subordination, non -disturbance and attornment agreement,
in a form provided by and satisfactory to Tenant from any lender or beneficiary which provides,
among other things, that Tenant's occupancy or use of the Easements in accordance with the
terms of the applicable easement agreement will not be disturbed.
6. Surrender of site. Upon expiration of the Term, any termination of this
Ground Lease, and any termination of this Ground Lease with respect to any portion of the
Site and/or Easement Areas (collectively referred to in this Article 6 as "Termination"), Owner
shall have the right to require Tenant to remove so much of said Facility and any other
improvements located upon the Site or Easement Areas that are subject to such Termination
as Owner may elect. Owner shall provide Tenant written notice of said election ("Owner's
Election") within sixty (60) days of such Termination. Notwithstanding anything herein to the
contrary, however, In the event Tenant elects to terminate all or any portion(s) of the Site or
the Easement Areas under the terms of Article 2, Tenant shall be entitled to retain title to and
shall remove all of its Facility and other improvements and personal property located within
such areas as to which the Ground Lease and/or any Easement is terminated, and Owner
shall not be entitled to elect to take title to same. Within one hundred eighty (180) days of
Owner's Election, Tenant shall commence to decommission, dismantle, and remove the
Facility and any other improvements and all other property of Tenant located upon the Site or
Easement Areas ("Tenant Removal Obligations") that Owner is not entitled to take title to and
return such applicable portions of the Site and Easement Areas to their condition as of the
CH-3197385 v5

Effective Date to the extent reasonably practical,. In this regard, Tenant shall repair any
damage to, and remove any debris placed upon, Owner's property arising out of or related to
such removal or Tenant's use of the Site and Easement Areas and shall complete such
Tenant Removal Obligations within ninety (90) days of commencement of the work, or such
other period of time as may be agreed to by Owner. Owner hereby grants to Tenant and
Tenant's Parties a license to enter upon the Site and the Easement Areas to perform the
activities required to be performed by Tenant pursuant to this Article 6, which license shall be
effective commencing upon the date of Termination and shall terminate upon the date on
which such Tenant Removal Obligations are complete. Failure by Tenant to perform the above
Tenant Removal Obligations within said period shall entitle Owner to perform said Tenant
Removal Obligations including sale or disposal of the Facility, fixtures, personal property and
any other improvements remaining on the Site or Easement Areas and recover all of Its costs
and expenses in doing so from Tenant. Owner will provide written notice to Tenant of Owners
election to commence Tenant Removal Obligations under this Article 6 at least Twenty (20)
days prior to commencing any Tenant Removal Obligations During the period of surrender, all
provisions of this Ground Lease except for Article 4 regarding Rents and Tenant Costs, shall
remain in full force and effect until that time that Tenant's Removal Obligations are complete
and the Site has been fully surrendered in accordance with this Article 6.
7. Nontermination. Except as specifically provided for in this Ground Lease, this
Ground Lease shall not terminate, nor shall Tenant's interest in the Site, the Easements, or
the Facility be extinguished, lost, conveyed or otherwise impaired, or be merged into or with
any other interest or estate in the Site, the Easement Areas or any other property interest, in
whole or in part, by any cause or for any reason whatsoever.
8. Possesslon and Quiet Enjoyment. As long as no Tenant Event of Default
under this Ground Lease has occurred and is continuing beyond any applicable cure period,
Owner covenants and agrees that Tenant shall enjoy quiet possession of the Site and the
Easements without any disturbance from Owner or any person claiming by or through Owner.
With the exception of property tax liens, Owner will not permit or suffer to exist any mortgage,
deed of trust, or other encumbrance on or against the Facility, the Site or the Easement Areas
Without Tenant's prior written consent, which will not be unreasonably withheld. Upon either
Party's discovery of any such lien, such Party shall (a) promptly give written notice thereof to
the other Party, and (b) Owner shall cause the same to be discharged of record or deliver to
Tenant, within 30 days after the date Owner receives notice of filing of the same, appropriate
security for payment, either by payment, deposit or bond. If Owner shall fail to discharge any
such Ilen(s) within such period, in addition to any other rights or remedy hereunder, Tenant
may, but shall not be obligated to, procure the discharge of the same either by paying the
amount claimed to be due by deposit in court or bonding. Any amount so paid or deposited by
Tenant, and all costs and other expenses related thereto, including reasonable attorneys' fees,
in defending any action or in procuring the discharge of such lien, with all necessary
disbursements in connection therewith, together with Interest thereon at the prime interest rate
of Bank of America, N.A., or its successor, plus 4% per annum (subject to and limited by
applicable usury laws) from the date of payment or deposit, until repaid to Tenant, shall be
payable by Owner to Tenant upon demand,
8. Us@ of Site: Development of Facility,
9.1 Uwe. During the Term, Tenant shall have exclusive use of the Site. Tenant may
use the Site and the Easement Areas only for purposes related to due diligence investigations
and studies related to the construction and operation of the Facility, and the construction, use,
operation, repair, ownership, replacement, expansion, modification, upgrade or maintenance
of the Facility.
CH•3197385 V5

9.2 Oonstruction of the Facility. Tenant shall determine whether and when to
construct (or cause the construction of) the Facility on the Site and within the Easement Areas
in its sole discretion, however, In any event, Tenant shall complete construction of the Facility
within two (2) years of the Effective Date of this Ground Lease. Failure to construct the Facility
within the prescribed time constitutes a Default under this Ground Lease and will be subject to
Article 13 herein. Should Tenant seek to obtain any permits, licenses, exemptions or
certifications in connection with the Facility, Owner agrees to cooperate fully and promptly with
Tenant in such efforts. To the extent permitted by law, all permits, licenses, exemptions and
certifications for the construction of the Facility shall be in the name of and for the benefit of
Tenant or a party designated by Tenant. Owner has no obligation to upgrade, update, expand,
replace, make additions to, or otherwise modify the Facility.
9.3 Maintenance. During the Term, Tenant shall be responsible for the general
maintenance of the Site, and the Easement Areas, in a good condition and in accordance with
prudent industry standards given the permitted use hereunder, which maintenance shall
include the planting as well as maintenance of a low growth ground cover on the Site and
mowing as may be reasonably required.
9.4 Environmental.
(a) Tenant shall operate the Facility in compliance with all Environmental
Laws relative to the Facility and shall identify, secure and maintain all required governmental
permits and licenses as may be necessary for the Facility. All required governmental permits
and licenses issued to Tenant and associated with the Facility shall remain in effect or shall be
renewed in a timely manner, and Tenant shall comply and cause all third parties to comply
therewith. All Hazardous Substances handled, generated or used on the Facility, the
Easement Area or the Site will be managed, transported and disposed of in a lawful manner.
Tenant shall not knowingly permit the Facility, the Easement Area or the Site or any portion
thereof to be a site for the use, generation, treatment, manufacture, storage, disposal or
transportation of Hazardous Substances, except in such amounts as are ordinarily used,
stored or generated in similar projects, or otherwise knowingly permit the presence of
Hazardous Substances in, on or under the Facility, the Easement Area or the Site in violation
of any applicable law.
(b) Tenant shall promptly provide Owner with copies of all forms, notices
and other information received by or on behalf of Owner concerning any releases, spills or
other Incidents relating to Hazardous Substances or any violations of Environmental Laws at
or relating to the Facility, the Easement Area or the Site upon discovery of such releases,
spills or other incidents, when received by Tenant from any government agency or other third
party or when and as supplied to any government agency or other third party. Prior to
undertaking any actions or remediation relating to or concerning any matter or incident set
forth in the preceding sentence, Tenant shall provide Owner with its remediation or other plan
of action to remedy such matter or incident and obtain Owner's written consent, which consent
shall not be unreasonably withheld so long as such actions or remediation by Tenant would
not potentially have a material adverse long-term or short-term effect on the Facility, the
Easement Area or the Site, or any parcels adjoining the Facility, the Easement Area or the
Site.
10. Insurance.
10.1 coverage. As to all activities hereunder, the following insurance shall be
obtained and maintained in force during the Term by Tenant.
CH•3197335 v5

(a) Commercial General Liability. Commercial General Liability insurance
including, but not limited to, coverage for premises/operations, explosion, collapse and
underground hazards, products/completed operations, property damage and bodily injury
providing for minimum limits of $1,000,000.00 for bodily injury, including death, and property
damage, arising from any one occurrence, and a $2,000,000.00 aggregate limit. This
commercial general liability policy shall include Owner as additional insured.
(b) Workers' Compensation Insurance. Workers' Compensation insurance
or qualified self-insurance in accordance with State and Federal laws including statutory North
Carolina benefits and other states' endorsement covering loss resulting from injury, sickness,
disability or death; and Employer's Liability insurance or self-insurance with limits of not less
than $100,000.00 each accident or disease or the minimum limit necessary to meet the
underlying requirements of the excess liability carrier, but in no event less than $500,000.00
bodily injury by disease policy limit.
(c) Hazard Ins urpnce. Hazard insurance (with standard deductibles, in
Tenant's discretion) insuring the Facility, the Easement Area and the Site for fire, casualty and
extended coverage in any event in amounts not less than one hundred percent (100%), of
then repair and replacement cost of the Insurable Property, with commercially reasonable
deductibles. Replacement cost values should be determined annually by a method acceptable
to the insurance company providing coverage, provided that independent appraisals are
conducted at least every five years by an appraiser. The overall property limit at the outset
should include coverage for increased cost of construction, demolition and contingent liability
from operation of building laws.
(d) Flood Insurance. Flood insurance if at any time the Facility, the
Easement Area or the Site are located in any federally designated "special hazard area"
(including any area having special flood, mudslide and/or flood -related erosion hazards, and
shown on a Flood Hazard Boundary map or a Flood Insurance Rate Map published by the
Federal Emergency Management Agency as Zone A, AO, AI-30, AE, A99, AH, V0, V1 "30, VE,
V, M or E) in an amount equal to the full replacement cost or the maximum amount then
available under the National Flood Insurance Program; A portion of the Property is currently
located in a federally designated "special hazard area".
(e) Contractors Insurance. During any construction periods, builder's risk
coverage in amounts appropriate for the construction work undertaken.
(1) Tenant shall require any contractor (or subcontractor thereof)
or professional to carry commercial general liability, auto liability, workers compensation
insurance with the scope of coverage and other provisions as described above. Such general
liability and auto liability coverages shall include Tenant and Owner as additional insureds.
Tenant shall obtain and keep on file certificates of insurance which show that the contractor or
subcontractor is so insured.
(f) Professional Services Insurance. Tenant shall require any architect,
engineer, or other person or entity providing professional services to Tenant and/or employed
in connection with the maintenance of the Facility, the Easement Area or the Site, or in the
construction of the Facility, to carry professional liability (errors and omissions) Insurance in an
amount not less than (a) $1,000,000 with respect to any person or entity providing
professional services in connection with the Facility, the Easement Area or the Site, and (b)
following final completion of the Facility, such amount as Owner may reasonably require after
consultation with Tenant, taking into account the cost of the improvements being constructed
CH-3187385 v5

at the Facility, the Easement Area or the Site. Tenant shall obtain and keep on file certificates
of insurance which show that the architect, engineer or other such professional is so insured.
(g) In addition to notifying its insurer(s) in accordance with each policy,
Tenant shall provide prompt written Notice to Owner as soon as reasonably possible of any
accident or loss relating to the Facility, the Easement Area or the Site described herein likely
to exceed $25,000.
(h) Policy Terms. The liability policy described above (a) shall be primary,
without right of contribution from any other insurance which may be carried by Owner, and (b)
shall include Owner, as an additional insured to the extent of the acts or omissions of Tenant
with respect to liability coverage.
10.2 Certificates. Prior to commencement of construction of the Facility and upon
any policy renewal or replacement, Tenant shall provide Owner hereto with written evidence of
the insurance required in Section 101(a) - (c) above In the form of appropriate insurance
certificates specifying amounts of coverage and expiration dates of all policies in effect. Each
policy shall provide that it is not subject to cancellation except after thirty (30) days following
notice to Tenant. Tenant shall provide thirty (30) days notice to Owner prior to the expiration of
any such policy.
10.3 Waiver of Subrocation. All policies obtained hereunder shall have a provision
waiving rights of subrogation by the insurer against Owner.
11. Damace or Destruction of Facility. If the Facility or any part thereof is
damaged or destroyed by any Casualty, all insurance proceeds related thereto shall be the
property of Tenant and Tenant shall have the right, but not the obligation, to repair and restore
the Facility or to construct and operate such new facility as it deems appropriate except that
Tenant shall clear the debris of casualty and restore the Easement Area and the Site to a
sightly, safe condition within a reasonable period not to exceed one hundred eighty (180) days
after casualty. If the Facility is damaged or destroyed and Tenant elects not to repair or restore
the Facility or to construct a new facility, Tenant shall have the right to terminate this Ground
Lease, by giving thirty (30) days written notice of termination to Owner. If Tenant exercises its
termination right as provided in the preceding sentence, Tenant shall surrender the Site and
the Easement Areas as provided in Article 6 above. All Insurance proceeds shall be and
remain the property of Tenant.
12. indemnity and Liens
12.1 General.
(a) Tenn . Tenant shall indemnify, defend and hold Owner and Owner's
Parties harmless from any and all claims, losses, expenses, liabilities, actions, suits, or
judgments for personal injury or property damage, including those of third parties (collectively,
Losses") by reason of, resulting from, whether directly or indirectly, or arising out of or related
to (1) Tenant's or Tenant's Parties' ownership, operation, use or maintenance of the Facility,
the Easement Areas or the Site; (ii) the negligence or willful misconduct of Tenant or any
Tenant Party in connection with the transactions contemplated by this Ground Lease; (III) any
release of Hazardous Materials on the Site caused or permitted by Tenant or any Tenant
Party; or (iv) any environmental claim from a third party with regard to a violation or alleged
violation of any Environmental Laws by Tenant or any Tenant Party.
10
CH-3197385 v5

(b) Owner. Owner shall indemnify, defend and hold Tenant and Tenant's
Parties harmless from any and all Losses to the extent arising prior to or after the Effective
Date by reason of, resulting from, whether directly or indirectly, or arising out of or related to (i)
Owner's or Owners Parties' ownership, operation, use or maintenance of the Site or any of
the Easement Areas; (ii) the negligence or willful misconduct of Owner or any Owner Party in
connection with the transactions contemplated by this Ground Lease; (III) the inaccuracy of
any representation or warranty of Owner contained in this Ground Lease; (iv) any release of
Hazardous Materials on the Site or any of the Easement Areas caused or permitted by Owner
or any Owner Party; or (v) any environmental claim from a third party with regard to a violation
or alleged violation of any Environmental Laws by Owner or any Owner Party.
(c) The provisions of this Section 12.1 shall survive the expiration or
termination of the Term, and, as to Owners obligation to indemnify, defend, and hold Tenant
and Tenant's Parties harmless, shall survive Owners Transfer with respect to any occurrence
prior to such Transfer.
12.2 Consequential Damages, Notwithstanding anything to the contrary in this
Ground Lease, neither Party hereto shall be liable to the other for consequential or punitive
damages, including but not limited to loss of use or loss of profit or revenue.
12.3 Liens.
(
l monies
due and legally owing toeshall all pe sons, firms,rand corporations doing acause to be made, ny work, work, furnlsment of lhing any
materials or supplies or renting any equipment to Tenant or any of its contractors or
subcontractors in connection with the construction, reconstruction, furnishing, repair,
maintenance or operation of the Facility, the Easement Area or the Site, and in all events will
bond or cause to be bonded, or pay or cause to be paid in full forthwith, any mechanic's,
materialman's or other lien or encumbrance that arises, whether due to the actions of Tenant
or any person other than Owner, against the Premises or the Improvements other than
mortgages permitted by Article 18 hereof.
(b) Tenant shall have the right to contest any such lien or encumbrance by
appropriate proceedings which shall prevent the collection of or other realization upon such
lien or encumbrance so contested, and the sale, forfeiture or loss of the Facility, the Easement .
Area or the Site to satisfy the same, provided that such contest shall not subject Owner to the
risk of any criminal liability or civil penalty, and provided further that Tenant shall give such
reasonable security as may be requested by Owner to insure payment of such lien or
encumbrance and to prevent any sale or forfeiture of the Facility, the Easement Area or the
Site by reason of such nonpayment, and Tenant hereby indemnifies Owner for any such
liability or penalty. Upon the termination after final appeal of any proceeding relating to any
amount contested by Tenant pursuant to this Section 12.3, Tenant shall immediately pay any
amount determined in such proceeding to be due, and in the event Tenant fails to make such
payment, Owner shall have the right, but not the responsibility, after five (5) days written
Notice to Tenant to make any such payment on behalf of Tenant and charge Tenant therefor,
together with Interest thereon from the date of payment as provided by Section 4.2.
(c) Tenant Facility, the Easementshall
Area or the Site ornot aany interest of Ownerve any right, innty rthe Facility, power to the Easement
Area or the Site. Tenant shall use its best efforts throughout the Term hereof to prevent any
mechanic's liens or other liens for work, labor, services or materials from being filed or
recorded against the Facility, the Easement Area or the Site, or any portion thereof; in the
event that any such lien shall be filed, Tenant shall procure the release or discharge thereof
11
CH-307385 v8

within ninety (90) days either by payment or in such other manner as may be prescribed by
law, and shall hold Owner harmless from and indemnified against any loss or damage related
thereto. NOTICE IS HEREBY GIVEN THAT OWNER SHALL NOT BE LIABLE FOR ANY
LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO THE
TENANT OR TO ANYONE HOLDING ANY OF THE PREMISES THROUGH OR UNDER THE
TENANT, AND THAT NO MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR,
SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF THE
OWNER IN AND TO ANY OF THE FACILITY, THE EASEMENT AREA OR THE SITE.
OWNER SHALL BE PERMITTED TO POST ANY NOTICES ON THE PREMISES
REGARDING SUCH NON -LIABILITY OF OWNER.
13. Default.
13.1 Events of Default. The following events shall be deemed to be events of
default by Tenant ("Tenant Events of Default") under this Ground Lease regardless of the
pendency of any bankruptcy, reorganization, receivership, insolvency, or other proceeding
which have or might have the effect of preventing Tenant from complying with the terms of this
Ground Lease.
(a) Failure to pay any payment required to be made hereunder, Including
taxes or any other sum to be paid hereunder within 10 Business Days after the date the same
is due which shall have remained unpaid for 20 Business Days after written notice of such
failure has been given to Tenant by Owner.
provision or coveFailure nant ofthis Ground pLease, other haly in any lnithe spaym ntect h ofsumsto�betpaid
hereunder, without curing such failure within 60 days after due written notice thereof from
Owner; or if such failure cannot reasonably be cured within the said 60 days and Tenant shall
not have commenced to cure such failure within said period and shall not thereafter with
reasonable diligence and good faith proceed to cure such failure within a reasonable time not
to exceed one hundred eighty(180) days.
(c) Any representation or warranty of Tenant set forth in this Lease, in any
certificate delivered pursuant hereto, or in any notice, certificate, demand, submittal or request
delivered to Owner by Tenant pursuant to this Lease shall prove to be incorrect in any material
and adverse respect as of the time when the same shall have been made and the same shall
not have been remedied to the reasonable satisfaction of Owner within thirty (30) days after
Notice from Owner.
(d) If Tenant shall be adjudicated bankrupt or be declared insolvent under
the Federal Bankruptcy Code or any other federal or state law (as now or hereafter in effect)
relating to bankruptcy, insolvency, reorganization, winding -up or adjustment of debts
(hereinafter collectively called Bankruptcy Laws), or if Tenant shall (a) apply for or consent to
the appointment of, or the taking of possession by, any receiver, custodian, trustee, United
States Trustee or liquidator (or other similar official) of Tenant or of any substantial portion of
Tenant's property; (b) admit in writing its inability to pay its debts generally as they become
due; (c) make a general assignment for the benefit of its creditors; (d) file a petition
commencing a voluntary case under or seeking to take advantage of a bankruptcy law; or (e)
fail to controvert in a timely and appropriate manner, or in writing acquiesce to, any petition
commencing an involuntary case against Tenant pursuant to any bankruptcy law.
(a) An order for relief against
t shall be entered in any involuntary
case under the Federal Bankruptcy Code or any similar n orderr against Tenant shall be entered
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CH-3197305 v5

Pursuant to any other bankruptcy law, or if a petition commencing an involuntary case against
Tenant or proposing the reorganization of Tenant under the Federal Bankruptcy Code shall be
tiled in and approved by any court of competent Jurisdiction and not be discharged or denied
within ninety (90) days after such filing, or if a proceeding or case shall be commenced in any
court of competent jurisdiction seeking (a) the liquidation, reorganization, dissolution, winding -
up or adjustment of debts of Tenant, (b) the appointment of a receiver, custodian, trustee,
United States Trustee or liquidator (or other similar official of Tenant) of any substantial portion
of Tenant's property, or (c) any similar relief as to Tenant pursuant to Bankruptcy Laws, and
any such proceeding or case shall continue undismissed, or any order, judgment or decree
approving or ordering any of the foregoing shall be entered and continued unstayed and in
effect for ninety (90) days.
Area or the Site Tenant voluntarily
Easement
or any substantial thereof for period of more ndons the tthan eninety (90)
consecutive days.
(g) This Lease, the Facility, the Easement Area or the Site or any part
thereof are taken upon execution or by other process of law directed against Tenant, or are
taken upon or subjected to any attachment by any creditor of Tenant or claimant against
Tenant, and such attachment is not discharged within ninety (90) days after its levy.
(h) Tenant makes any sale, conveyance, assignment or transfer in
violation of this Lease.
13.2 Owner's Remedies. Upon the occurrence of any Tenant Event of Default,
Owner may, at its option, and in addition to and cumulatively of any other rights Owner may
have at law or in equity or under this Ground Lease, (a) cure the Tenant Event of Default on
Tenant's behalf, in which event Tenant shall reimburse Owner on demand for all sums so
expended by Owner, (b) terminate this Ground Lease by notice to Tenant and in conformity
with procedures required hereby and by applicable law, or (c) enforce, by all proper and legal
suits and other means, its rights hereunder, including the collection of sums due hereunder, In
which event Owner shall have all remedies available at law or in equity, and should it be
necessary for Owner to take any legal action in connection with such enforcement, Tenant
shall pay Owner all reasonable attorneys' fees and expenses so incurred, all without prejudice
to any remedies that might otherwise be used by Owner for recovery or arrearages of sums
due hereunder, damages as herein provided, or breach of covenant.
(a) Owner Events of Default. The following events shall be deemed to be
events of default by Owner ("Owner Events of Default") under this Ground Lease regardless of
the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceeding
which have or might have the effect of preventing Owner from complying with the terms of this
Ground Lease.
(b) Failure to pay any payment required to be made hereunder within 10
Business Days after the date the same is due which shall have remained unpaid for 20
Business Days after written notice of such failure has been given to Owner by Tenant.
(c) Failure to comply in any material respect with any material term,
provision or covenant of this Ground Lease, other than the payment of sums to be paid
hereunder, without curing such failure within 60 days after due written notice thereof from
Tenant; or if such failure cannot reasonably be cured within the said 60 days and Owner shall
not have commenced to cure such failure within said period and shall not thereafter with
reasonable diligence and good faith proceed to cure such failure.
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CH-3197385 v5

(d) Any act(s) or omission(s) of Owner that, in the aggregate, in any way,
directly or indirectly, adversely, materially, and substantially impacts, affects or impairs
Tenant's ability to operate and/or the operation of the Facility.
13.3 Tenant's Upon the occurrence of any Owner Event of Default,
Tenant may, at its option, and in addition to and cumulatively of any other rights Tenant may
have at law or in equity or under this Ground Lease, (a) cure the Owner Event of Default on
Owner's behalf, in which event Owner shall reimburse Tenant on demand for all sums so
expended by Tenant or Tenant may elect to offset any such amounts against subsequent
installments of Base Rent or any other sums due from Tenant to Landlord hereunder (b)
terminate this Ground Lease by notice to Owner and in conformity with procedures required
hereby and by applicable law, or (c) enforce, by all proper and legal suits and other means, its
rights hereunder, including the collection of sums due hereunder, in which event Tenant shall
have all remedies available at law or in equity, and should it be necessary for Tenant tot ke
a
any legal action in connection with such enforcement, the Owner shall pay Tenant all
reasonable attorneys' fees and expenses so incurred, all without prejudice to any remedies
that might otherwise be used by Tenant for recovery or arrearages of sums due hereunder,
damages as herein provided, or breach of covenant.
14. Govern_ ini Law This Ground Lease and all provisions hereof, shall be
governed by and interpreted in accordance with the laws of the State of North Carolina and
the venue will be Bartle County, North Carolina.
15. Force Maieure.
15.1 Force Maieure. The performance of each Parry's respective obligations under
this Ground Lease, other than failure or delay in payment of obligations, shall be excused
during such times and to the extent such performance is prevented by reason of Force
Majeure.
15.2 R@SUmDtlon of Performance, The Pa whose
Prevented or delayed by Force Majeure shall promptly notify s they otherParty is suspended,
n such
occurrence and its estimated duration. Subject to any rights of termination under this Ground
Lease, such Force Majeure shall be promptly remedied, if and to the extent reasonably
possible.
16. Condon. If at any time the Site, the Easements, or any portion thereof
is condemned or transferred in lieu of condemnation, the net proceeds of such condemnation
or transfer shall be divided between Owner and Tenant (or Tenant's designee) in the
proportions specified in the condemnation award or agreement of transfer or, if not so
sSite and the pecified, in proportion to the fair value of Owner's and Tenant's respective interests in the
at to the
ascondemnation or transfer nrolieu a ofthcondemnati n� are ent tattributable hat the netto rthee
Facility ds of aor
improvements constructed by or on behalf of Tenant on the Site and/or the Easements, such
Proceeds shall be paid solely to Tenant or Tenant's designee, with Owner receiving any
Proceeds attributable solely to the residual value of the fee estate of the Site. For the purpose
of this Article 16, the net proceeds of a condemnation or transfer in lieu of condemnation shall
mean the total proceeds of such condemnation or transfer less the costs and expenses
Incurred in connection therewith (including legal fees).
16.1 If the entire Site is condemned or transferred in lieu of condemnation, the Term
shall terminate at the time title vests in the condemning authority. In the event of a permanent
Taking of the fee title to or of control of the Facility, the Easement Area or the Site or of the
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CH-3197385 v5

entire leasehold estate hereunder (a Total Taking), this Lease shall thereupon terminate as of
the effective date of such Total Taking, without liability or further recourse to the parties,
provided that any Rent or other Impositions hereunder payable or obligations owed by Tenant
to Owner as of the date of said Total Taking shall be paid or otherwise carded out in full.
16.2 If a portion of the Site is condemned or transferred in lieu of condemnation, the
Ground Lease shall continue in full force and effect with respect to that portion of the Site
which has not been so condemned or transferred, and Base Rent shall abate with respect to
that portion of the Site which has been so condemned or transferred. Notwithstanding the
foregoing, Tenant may terminate this Ground Lease by giving thirty (30) days written notice of
termination to Owner if, in Tenant's discretion, the Site or the Easements are not suitable for
Tenant's intended use following such condemnation or transfer in lieu thereof provided that
any Rent or other impositions hereunder payable or obligations owed by Tenant to Owner as
of the date of said partial taking shall be paid or otherwise carded out in full.
17. Maintenance Responsibilities of Parties. No Party shall have any duty or
responsibility to the other Party in respect of the Site or the Easement Areas or the use,
maintenance or condition thereof except such obligations of such Party as are specifically set
forth in this Ground Lease.
18. Mortgaae of Tenant's Interest.
18.1 Tenant may at any time elect to finance a portion of the cost of the Facility,
possibly in a sale -leaseback financing structure, with one or more financial institutions, leasing
companies, Institutions or affiliates or subsidiaries thereof (each a "Financing Party,"
collectively, the "Financing Parties") and in connection therewith Tenant would enter into
various agreements and execute various documents relating to such financing, which
documents may, among other things, assign this Ground Lease and the Easements to a
Financing Party, grant a sublease in the Site and a lease of the Facility from such Financing
Party to Tenant, grant the Financing Parties a sublease or other real property interest In
Tenant's interests in and to the Site, grant a first priority security interest in Tenant's interest in
the Facility and/or this Ground Lease and Tenant's other interests in and to the Site, including,
but not limited to, any easements, rights of way or similar Interests (such documents,
"Financing Documents"). Owner acknowledges notice of the foregoing and consents to the
foregoing actions and Financing Documents described above, and Owner agrees to execute,
and agrees to cause any and all of Owner's lenders to execute, such subordination
agreements, consents, estoppels and other acknowledgements of the foregoing as Tenant or
the Financing Parties may reasonably request. Owner agrees that if requested by Tenant,
Owner will furnish the Financing Parties with a counterpart of each notice or other document
delivered by Owner to Tenant in connection with this Ground Lease.
18.2 Notice to Mortgage Holder. So long as any Leasehold Mortgage shall remain
on Tenants leasehold estate hereunder and the holder thereof shall have complied with the
provisions of Article 18 hereof, Owner agrees that it shall not terminate this Ground Lease
unless it has given each Financing Party at least 90 days' (30 days' in the case of a default in
payment by Tenant) prior written notice of its intent to terminate this Ground Lease and the
Financing Parties fall to cure the condition giving rise to such right of termination within such
time period provided that a failure on the part of Owner to give such notice to the holder of any
such leasehold mortgage shall not affect the effectiveness of the Notice to Tenant. The
foregoing provisions of this Article 18 shall not apply in favor of any mortgage holder unless,
before Owner has mailed a Notice, such mortgage holder has duly recorded its mortgage or
notice thereof in any public office where such recording may be required in order to charge
third persons with knowledge thereof and has given written Notice to Owner accompanied by
15
CH•3197365 v5

a certified copy of such mortgage and stating the name of such holder and the address to
which notices to such holder are to be mailed by Owner.
18.3 If the default under this Ground Lease is of such a nature that it cannot be
practicably cured without first taking possession of the Facility and the Site or if such default is
of a nature that is not susceptible of being cured by the Financing Parties, then Owner shall
not be entitled to terminate this Ground Lease by reason of such default if and so long as the
Financing Parties proceed diligently to attempt to obtain possession of the Facility and the Site
pursuant to the rights of the Financing Parties under the Financing Documents and upon
obtaining such possession, the Financing Parties shall proceed diligently to cure such default
if such default is susceptible of being cured by the Financing Parties.
18.4 The Financing Parties shall not be required to continue to proceed to obtain
possession, or to continue in possession of the Site, pursuant to Section 18.3 if and when
such default is cured. If the Financing Parties, or a purchaser through foreclosure under the
Financing Documents or otherwise, shall (a) acquire title to the Facility and the leasehold
estate created by this Ground Lease, (b) cure all defaults which are susceptible of being cured
by the Financing Parties or such purchaser, as the case may be (including without limitation,
the payment of all monetary obligations of Tenant referred to in Section 18.3 above), and (c)
assume all the obligations of Tenant hereunder, then (I) any default of Tenant which is not
susceptible of being cured by the Financing Parties or such purchaser, as the case may be,
shall no longer be deemed to be a default under this Ground Lease, and (ti) Owner shall
recognize the Financing Parties or such purchaser, as the case may be, as if such party had
been the Tenant under this Ground Lease.
18.5 No Subordination of Fee. At no time shall Owners' fee title in the Easement
Area or the Site, or Owner's interest in the Lease be subordinated in any manner to the
interest of any mortgagee or Iienholder of Tenant or any person claiming by or through Tenant.
18.6 Priority of Obligations. Payments of Base Rent and Tenant Costs under Article
4 hereunder shall be superior in priority to all debt service payments to a Leasehold
Mortgagee.
19. Owner's Representations and Covenants.
19.1 Condition of Title- Warranty of Authority- Enforceability. Owner represents and
warrants as of the Effective Date that Owner owns fee title to the Site and the Easement Areas
free and clear of any lien, Interest or encumbrance, subject only to the matters and exceptions
approved in writing by Tenant on or before the Effective Date and shown in that certain Title
Insurance Commitment prepared by First American Title Insurance Company, Commitment
No. NCS-631183-CHAR having an effective date of September 25, 2013 (as to Tract 1) and
October 11, 2013 (as to Tract 2) (as said Tracts 1 and 2 are shown on Exhibit A attached
hereto). At any time on or after the Effective Date, Tenant may obtain for itself and/or any
Financing Party, at Tenant's expense, an ALTA Extended Coverage policy of title insurance in
a form and with exceptions acceptable to Tenant and/or such Financing Party in its sole
discretion (the "Title Policies"). Owner agrees to cooperate fully and promptly with Tenant in its
efforts to obtain the Title Policies, and Owner shall take such actions as Tenant or any
Financing Party may reasonably request in connection therewith. Except as specifically
provided for hereinbelow, Owner represents and warrants that, to Owner's knowledge, (a)
there are no pending or threatened claims, actions or suits affecting the Site or the Easement
Areas or Owner's interest in the Site or the Easement Areas; (b) the execution and
performance of this Ground Lease by Owner does not violate any contract, agreement or
instrument to which Owner is a party and Owner has not entered into any contract, agreement
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CH-3197385 v5

or Instrument with respect to the Site or the Easement Areas with any third party other than
Tenant; (c) the execution, delivery and performance by it under this Ground Lease have been
duly authorized by all necessary action by Owner and, to Owner's knowledge, do not violate
any provision of any current law applicable to Owner, the Site or the Easement Areas or any
order, judgment or decree of any court or other agency presently binding on Owner or conflict
with or result In a breach of or constitute a default under any contractual obligation of Owner;
and (d) this Ground Lease is the legally valid and binding obligation of Owner enforceable
against it in accordance with Its terms except as enforcement may be limited by bankruptcy,
insolvency, or reorganization, moratorium or similar laws or equitable principles relating or
limiting creditors rights generally.
19.2 Environmental. Owner represents and warrants that, to Owner's knowledge, as
of the Effective Date (a) the Site and Easement Areas are free of known or identified
Hazardous Materials, no Hazardous Materials have ever been produced or disposed upon the
Site or the Easement Areas, no Release has occurred on the Site or the Easement Areas and
Hazardous Materials have not migrated to the Site or the Easement Areas, (b) the Site and the
Easement Areas and are in compliance with all Environmental Laws, (c) neither the Site nor
the Easement Areas are subject to any Environmental Liability, threatened Environmental
Liability or alleged Environmental Liability, and (d) Owner has not received notice of any
violation of Environmental Laws affecting the Site or the Easement Areas.
19.3 Subordination Agreements. Owner shall, at Its expense, on or before the initial
Rent Payment Date and as a condition to Tenant's obligation to make any payment of Base
Rent, remove, or cause to be subordinated to the Ground Lease all monetary obligations that
are described as exceptions to the Title Policies. Any such subordination agreement shall be
in a form as may be reasonably acceptable to Tenant, which provides, among other things,
that Tenant's occupancy or use of the Site in accordance with the terms of this Ground Lease
will not be disturbed by anything related to said exceptions to the Title Policies.
19.4 Weverhaeuser Company Reservation. Owner acquired title to the Site
pursuant to that certain deed (the "Deed") from Weyerhaeuser Company ("Weyerhaeuser") to
Owner recorded in Book 814 at Page 119 of the Bertie County, North Carolina, Public
Registry. In said Deed, Weyerhaeuser reserved all ores and minerals in and under the land
conveyed thereby (the "Reserved Rights") (as said Reserved Rights are more particularly
described in the Deed). As part of such reservation, however, Weyerhaeuser agreed, for itself
and its successor assigns, "that the rights hereby reserved and excepted shall not be
exercised in a manner adversely affecting use of the surface at any time unless and until"
Weyerhaeuser "or its successors or assigns, as the case may be, shall first make satisfactory
written arrangements with the then owner of the property affected, and with the mortgagee or
mortgagees of such property, as their respective interests may appear, to compensate said
owner and mortgagee or mortgagees for damages Incurred to the surface and any
improvements thereon in exercising such rights." Owner hereby agrees that, if Owner is
approached by Weyerhaeuser or any successor to such Reserved Rights, Owner shall
immediately notify Tenant and shall ensure that Tenant and any applicable mortgagee(s) of
Tenant Is/are directly Involved in the making of, and made a party to, the "satisfactory written
arrangements" contemplated by the foregoing language and that Tenant, for purposes of any
such "satisfactory written arrangements", shall be entitled to receive all compensation for any
applicable damages Incurred by Tenant to the surface of the Site and Tenant's improvements
thereon, as if Tenant were the "then owner of the property affected." To the extent required,
and if requested by Tenant, Owner shall assign to Tenant Owner's rights to make such written
arrangements and receive such compensation. Tenant shall indemnify, defend and hold
Owner and Owner's Parties harmless from any and all claims, losses, expenses (including
attorney's fees), liabilities, actions, suits or judgments arising out of or related to the exercise
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CH 3197385 v5

by Weyerhaeuser of Its mineral rights. This indemnification shall include but is not limited to
reimbursement of attorney's fees and costs incurred by Owner in negotiating with
Weyerhaeuser to make "satisfactory written arrangements" for its exercise of mineral rights
and in enforcing the right to seek compensation from Weyerhaeuser for damage to the surface
of the site and Tenant's improvements thereon.
20. Utilities. Tenant shall pay for all Utilities consumed by Tenant at the Site
during the Term.
21. Taxes.
21.1 Covenant to Pay Taxes and Assessment . Tenant shall be responsible for and
promptly pay before default any personal property taxes or special assessments, If any, that
may be levied or assessed against any improvements, or other personal property, situated on
the Property, it being the mutual intention of the parties that Owner shall not be required to pay
any taxes on personal property which may result from entering this Agreement or any resulting
Lease. Tenant also agrees to indemnify Owner against any loss or liability resulting from any
and all claims or liens in connection with such taxes and assessments.
21.2 Separate Tax Parcel(s), No Proration at Commencement and Expiration of
Term.
(a) The Parties shall use good faith and duly diligent efforts to cause the
Site to be designated as a separate tax parcel, Independent from the balance of Owner's
surrounding property, if any At all times during the term hereof when the tax bills for the Site
and any applicable Easement Areas are being sent to Owner, Owner shall deliver copies of
same to Tenant within twenty (20) days following Owner's receipt of same. In the event the
Site is so designated as a separate tax parcel, Tenant shall be responsible for paying, and
shall timely pay, all Taxes and Assessments (or similar) applicable to the separate tax parcel.
In the event the Site or any applicable Easement Area for which Tenant is responsible for
paying real and/or personal property taxes hereunder is not a separate tax parcel, Tenant
shall be responsible for only paying Its proportionate share thereof, based on a per acre
allocation of the acreage within such Easement Area and the total acreage of the larger parcel
of which the Easement Area is a portion. Until such time, if ever, that the Site and/or
applicable Easement Area(s) is(are) designated as one or more separate tax parcel(s), Owner
shall be responsible for paying all Taxes and Assessments for all of the larger parcel(s) within
which the Site and the Easement Areas are located, and following Owner's payment of same,
Owner shall provide Tenant with a paid receipt for such Taxes and Assessments and Tenant
shall reimburse Owner for its prorate share of such Taxes and Assessments
(b) Tenant shall be responsible for and promptly pay before default any
and all Taxes and Assessments for the full year in which the Effective Date occurs and for the
full year In which the Term expires. Tenant expressly acknowledges that there will be no pro-
ration of the same.
21.3 Tenant's Right to Contest Taxes. Without limiting the right of Owner to contest
any Taxes and Assessments levied against the Site, Tenant shall have the right to contest any
Taxes or Assessments payable by Tenant, provided, Tenant shall, in good faith and with due
diligence, contest the same or the validity thereof by appropriate legal proceedings which shall
have the effect of preventing the collection of the tax or assessment and the sale or
foreclosure of any lien for such tax or assessment. In such event, Tenant hereby covenants
and agrees to indemnify and save Owner harmless from any and all reasonable and
documented costs and expenses, including attorneys' fees, in connection with any such suit or
18
Ca-3197385 V5

action. Any funds recovered by Tenant as a result of any such suit or action shall belong to
Tenant.
22. Assianment.
22.1 Assignment by Owner. Owner may sell, assign or transfer Its interest in the
Site or this Ground Lease at any time to a successor in interest (who must expressly assume
the obligations of Owner hereunder), and Owner shall thereafter be released or discharged
from all of its covenants and obligations hereunder, except such obligations as shall have
accrued prior to any such sale, assignment or transfer, and Tenant agrees to look solely to the
successor in interest of Owner for performance of obligations that arise after such sale,
transfer or assignment. Prior to such sale, assignment or transfer of its interest, Owner shall
notify Tenant of same. Owner shall also have the right to place a mortgage or deed of trust
upon the Site provided that the beneficiary of such deed of trust or mortgage shall agree in
writing, that so long as Tenant is not in default under the terms of this Ground Lease beyond
any applicable notice and cure period as set forth herein, such beneficiary shall not disturb
Tenant's rights under this Ground Lease.
22.2 Assignment by Tenant. Tenant may sell, assign, sublease, or otherwise
transfer its Interest in the Site or this Ground Lease to a successor in Interest (who must
expressly assume the obligations of Tenant hereunder), and Tenant shall thereafter be
released or discharged from all of its covenants and obligations hereunder, except such
obligations as shall have accrued prior to any such sale, assignment or transfer, and Owner
agrees to look solely to the successor in Interest of Tenant for performance of obligations that
arise after such sale, assignment or transfer. Prior to such sale, assignment or transfer of its
interest, Tenant shall notify Owner of same.
23. Sale of the Property to Tenant. During the term of this Ground Lease, Tenant
shall have the opportunity to offer to purchase the Property. If the Owner proposes to accept
the offer, the sale is conditioned on compliance with N.C.G.S. 160A0-269, which requires a
5% deposit, publication of a notice of the offer, and 10 days for anyone to raise the offer.
24. Miscellaneous.
24.1 Notices. Any notice, consent or other formal communication required or
permitted to be given by a Party pursuant to the terms of this Agreement shall be in writing
and shall be deemed delivered (a) when delivered personally or by email, unless such delivery
is made (1) on a day that is not a business day in the place of receipt or (ii) after 5:00 p.m. local
time on a business day in the place of receipt, in either of which cases such delivery will be
deemed to be made on the next succeeding business day, (b) on the next business day after
timely delivery to a reputable overnight courier and (c) on the business day actually received if
deposited in the U.S. mail (certified or registered mail, return receipt requested, postage
prepaid), addressed as follows (or to such other address or having such other contact
information as either Party may hereafter specify for such purpose by like notice to the other
Party from time to time):
(a) If to Tenant, addressed to:
Windsor Cooper Hill Solar, LLC
C/o DEGS NC Solar, LLC
550 South Tryon Street- DEC 18A
Charlotte, North Carolina 28202
Attention: Robert Stewart II
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CH-3197388 v6

Email: [e-mail]
Phone: [phone]
With a copy to:
Duke Energy Corporation
139 East Fourth Street, Room 1212-Main
Cincinnati, Ohio 45202
Attention: George Dwight II, Deputy General Counsel
Email: [e-mail]
Phone: [phone]
(b) If to Owner, addressed to:
Town of Windsor
c/o Allen Castelloe
P. O. Box 508
128 South King Street
Windsor, NC 27983
Bertie County
Scott Sauer
County Manager
P.O. Box 530
106 Dundee Street
Windsor, NC 27983
With a copy to:
M. Braxton Gillam, III
Attorney for the Town of Windsor
P.O. Box 547
Windsor, NC 27983
Jonathan E. Huddleston
Attorney for Bartle County
P. O. Drawer 100
Windsor, NC 27983
or to such other address as either Party shall from time to time designate in writing to
the other Party.
24.2 Counterparts: Signatures. This Ground Lease may be executed in
counterparts. All executed counterparts shall constitute one agreement, and each counterpart
shall be deemed an original. The Parties hereby acknowledge and agree that facsimile
signatures or signatures transmitted by electronic mail in so-called "pdf format shall be legal
and binding and shall have the same full force and effect as if an original of this Ground Lease
had been delivered. Owner and Tenant (i) intend to be bound by the signatures on any
document sent by facsimile or electronic mail, (ii) are aware that the other Party will rely on
such signatures, and (III) hereby waive any defenses to the enforcement of the terms of this
Ground Lease based on the foregoing forms of signature.
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CH-3197385 v5

24.3 Amendments. Neither this Ground Lease nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified orally, but only by an instrument in
writing signed by the Party against which the enforcement of the termination, amendment,
supplement, waiver or modification shall be sought.
24.4 Headings, etc. The headings of the various Articles and Sections of this
Ground Lease are for convenience of reference only and shall not modify, define, expand or
limit any of the terms or provisions hereof.
24.6 Successors and Assigns. The terms of this Ground Lease shall be binding
upon, and inure to the benefit of, the Parties hereto and their respective successors and
permitted assigns.
24.6 Attorneys' Fees. If either Party commences an action or proceeding against
the other Party arising out of or in connection with this Ground Lease, or institutes any
proceeding in a bankruptcy or similar court which has jurisdiction over the other Party or any
or all of its property or assets, the prevailing Parry in such action or proceeding and in any
appeal in connection therewith shall be entitled to have and recover from the unsuccessful
Party reasonable attorneys' fees, court costs, expenses and other costs of Investigation and
preparation. If such prevailing Party recovers a judgment in any such action, proceeding, or
appeal, such attorneys' fees, court costs and expenses shall be included in and as a part of
such judgment.
24.7 Interpretation. The Parties acknowledge that this Ground Lease, as executed,
is the product of negotiations between Owner and Tenant and that it shall be construed fairly,
In accordance with its terms, and shall not be construed for or against either Party. No
inferences as to the intention of the Parties shall arise from the deletion of any language or
provisions of this Ground Lease.
24.8 Memorandum of Lease. Concurrently with the execution of this Ground Lease,
Owner and Tenant shall execute, acknowledge before a notary public, in recordable form, and
deliver a short form memorandum of lease in the form of Exhibit , attached hereto and
incorporated herein, which shall be recorded by Tenant in the Official Records.
24.9 Severability. If any term or provision of this Ground Lease is, to any extent,
determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder
of this Ground Lease shall not be affected thereby, and each remaining term and provision of
this Ground Lease shall be valid and enforceable to the fullest extent permitted by law.
24.10 Time Is of the Essence. Time is of the essence of this Ground Lease and each
and every provision of this Ground Lease.
24.11 Consent and Approvals. Any consent or approval that a Parry is obligated to
give to the other Party shall not be unreasonably withheld or delayed, subject to any specific
provision to the contrary contained in this Ground Lease.
24.12 Entire Agreement. This Ground Lease, including any exhibits and attachments
hereto, constitutes the entire agreement between Owner and Tenant relative to the matters
and transactions contemplated herein. Owner and Tenant agree hereby that all prior or
contemporaneous oral or written agreements, or letters of intent, between and among
themselves or their agents including any leasing agents and representative, relative to such
matters and transactions are merged in or revoked by this Ground Lease.
21
CH3197335 v5

24.13 Broker's Commission. Tenant represents and warrants that it has not dealt with
any broker or agent in connection with this Ground Lease and Tenant agrees to indemnify and
save Owner harmless from any claims made by any brokers or agents claiming to have dealt
with Tenant. Owner represents and warrants that it has not dealt with any brokers or agents in
connection with this Ground Lease, and Owner agrees to indemnify and save Tenant
harmless from any claims made by any brokers or agents claiming to have dealt with Owner.
The terms and provisions of this Section 24.14 shall survive the termination or earlier
expiration of this Ground Lease.
24.14 WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY LAW, THE
PARTIES HEREBY WAIVE ANY AND ALL RIGHTS THAT THEY MAY NOW OR
HEREAFTER HAVE UNDER THE LAWS OF THE UNITED STATES OF AMERICA OR ANY
STATE, TO A TRIAL BY JURY OF ANY AND ALL ISSUES ARISING DIRECTLY OR
INDIRECTLY IN ANY ACTION OR PROCEEDING RELATING TO THIS GROUND LEASE
OR ANY TRANSACTIONS CONTEMPLATED HEREBY OR RELATED HERETO. IT IS
INTENDED THAT THIS WAIVER SHALL APPLY TO ANY AND ALL CAUSES OF ACTION,
DEFENSES, RIGHTS, CLAIMS AND/OR COUNTERCLAIMS, WHETHER IN CONTRACT,
TORT OR OTHERWISE, IN ANY SUCH ACTION OR PROCEEDING. THE PARTIES
UNDERSTAND THAT THIS WAIVER IS A WAIVER OF A CONSTITUTIONAL SAFEGUARD,
AND THE PARTIES BELIEVE THAT THERE ARE SUFFICIENT ALTERNATE
PROCEDURAL AND SUBSTANTIVE SAFEGUARDS, INCLUDING A TRIAL BY AN
IMPARTIAL JUDGE, THAT ADEQUATELY OFFSET THE WAIVER CONTAINED HEREIN.
24.15 No Joint Venture. Neither this Ground Lease nor anything contained herein
shall be deemed to make Owner in any way or for any purpose a partner, joint venturer, or
associate in any relationship with Tenant other than that of Owner, as Owner of the property
subject to this Ground Lease, and Tenant, as Tenant of this Ground Lease, nor shall this
Ground Lease or any provision thereof be construed to authorize either to act as an agent for
the other except as expressly provided in this Ground Lease.
24.16 Condition of Site and Easement Areas. Tenant's taking possession of the Site
and Easement Areas shall be conclusive evidence as against Tenant that Tenant has
accepted said Site and Easement Areas "AS IS" and that, other than with respect to any
environmental issue existing on the Site or the Easement Areas not caused by Tenant or any
of Tenant's Parties, Owner is under no duty to repair anything, furnish any services for, or
otherwise Improve in anyway the same.
24.17 Adherence to Regulations. Tenant shall comply with all laws, statutes, codes,
acts, ordinances, orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of and agreements with all governments,
departments, commissions, boards, Courts, authorities, agents, officials, officers and other
parties, foreseen or unforeseen, ordinary or extraordinary, which now or at any time hereafter
may be applicable to Tenant; Tenant's construction, operation, and maintenance of the
Facility; and Tenant's use of the property that is subject to this Ground Lease. Tenant shall not
Intentionally or knowingly use the property that is the subject of this Ground Lease for any
purpose or in any manner in violation of any law, ordinance, rule, or regulation adopted or
imposed by any federal, state, county, municipal body, or other governmental agency. Tenant
further agrees to indemnify and hold Owner harmless for any and all damage of any kind
arising from Tenant's failure to comply with the aforementioned rules and regulations.
24.18 No Waiver. Failure of either party to complain of any act or omission on the
part of the other party, no matter how long the same may continue, shall not be deemed to be
a waiver by said party of any of its rights hereunder. No waiver by either party at any time,
22
CH-3197385 v5

express or implied, of any breach of any other provision of this Lease shall be deemed a
waiver of a breach of any other provision of this Lease or a consent to any subsequent breach
of the same or any other provision. If any action by either party shall require the consent or
approval of the other party, the other party's consent to or approval of such action on any one
occasion shall not be deemed a consent to or approval of said action on any subsequent
occasion. Any and all rights and remedies which either party may have under this Lease or by
operation of law, either at law or in equity, upon any breach, shall be distinct, separate and
cumulative and shall not be deemed inconsistent with each other; and no one of them whether
exercised by said party or not, shall be deemed to be in exclusion of any other; and two or
more or all of such rights and remedies may be exercised at the same time.
24.19 Riaht of Entry. Tenant will, at any time during the Term or any renewal Term,
permit inspection of the Facility, the Easement Area or the Site at reasonable hours and upon
reasonable notice by the Owner, its agents or representatives provided that Owner, its agents
and representatives shall conduct any such inspections in a reasonable manner and subject to
all of Tenant's safety and security requirements, and shall permit a representative of Tenant to
accompany any Inspection. While the right and authority hereby reserved does not Impose,
nor does the Owner assume in connection with any such inspections, any responsibility or
liability Owner whatsoever for the care, maintenance or supervision of the Facility, the
Easement Area or the Site, Owner and its agents and representatives shall enter the Facility,
the Easement Area or the Site at their own risk and shall be responsible for their own actions
and omissions and shall indemnify Tenant therefrom, as provided in Article 12 hereof.
23
CH-3197365 v5

IN WITNESS WHEREOF, the Parties hereto have caused this Ground Lease to be
duly executed by their respective officers thereto duly authorized as of the day and year first
above written.
OWNER:
TENANT:
TOWN OF WINDSOR WINDSOR COOPER HILL SOLAR, LLC
By: (SEAL)
Name: James F. Hoggard, Mayor By:
Name:
Title:
Attest:
Town Clerk
OWNER
BERTIE CO
By:� EAL)
N : J. allace Per , Chairman of Board
of .�C�ommissiioners � �7
Attest:c�Lo.0 At L A • r kkmnt/
Clerk to the Board of Commissioners
Tj
CH-3197385 v5

IN WITNESS WHEREOF, the Parties hereto have caused this Ground Lease to be
duly executed by their respective officers thereto duly authorized as of the day and year first
above written.
OWNER:
TENANT
TOWN O WINDSOR WINDSOR COOPER HILL SOLAR, LLC
By: SEAL) C
N : James F. Hogg May By: /
// Name:
//yy���� Title: UrG rte awl
Attest f_
own Clerr k
OWNER
BERTIE COUNTY
6y9' EAL)
N e: J. Wallace Per ,Chairman of Board
Of Commissioners
Attest:.e&A o. Qt.,d _ % �.vr M ^ .rot
Clerk to the Board of Commissioners
24
CH419'/3e5 v5

STATE OF NORTH CAROLINA
COUNTY OF BERTIE
i a Notary Public, for the County and State aforesaid, certify
that L. Allen Castelloe personally appeared before me this day and acknowledged that he is
the Clerk for the Town of Windsor, a political subdivision of the State of North Carolina, and
that by authority duly given and as the act of the Board of Commissioners of Town of Windsor,
the foregoing instrument was signed in its name by James F. Hoggard, its Mayor, sealed with
its seal, and attested by L. Allen Castelloe as Town Clerk.
Witness my hand and notarial seal or stamp, this the _ day of 2014,
Notary Public (Notarial Seal/Stamp)
My Commission Expires:
STATE OF NORTH CAROLINA
COUNTY OF BERTIE
I, .L�Y1taL ��• Q&VJc!a Notary Public, for the County and State aforesaid, certify
that lR }4 S 1, N nti personally appeared before me this day and acknowledged
that he/she is the Clerk to the Board of Commissioners of Bertie County, a political subdivision
of the State of North Carolina, and that by authority duly given and as the act of the Board of
Commissioners of Bartle County, the foregoing Instrument was signed in its name by J.
allots Perm its Chairman, sealed with its seal, and attested by
A�{ S 11nitLkh-m as Clerk to the Board of Commissioners of Bertie County.
je,ss my hand a notarial seal o>stamp, this the L day of oTIANL 2014.
,
Notary Public (Notarial Seal/Stamp)
My Commission Expire
25
CH-3107385 v6

STATE OF NOf Lh 02110"
COUNTY OF A.i2ikUnb11XA
!!�� J
I, t>1 a Notary Public, for the County and State aforesaid, certify
that9Ntan K. SjallmnnVirib President of Windsor Cooper Hill Solar, LLC, a Delaware
limited liability company, personally appeared before me this day and acknowledged the due
execution of the foregoing instrument for the purposes therein expressed.
Witnds my hand a n ariialll seal or stamp, this the 2e day of DNA cI ! 201�P
LAAM ( n///
Notary Public (NotarialSeal/Stam—p)T
My Commission Expires:,—f—t ,2 ?Y 2nr7
26
CH-3197386 v6

Exhibit A to Ground Lease
Legal Description of the Property
THOSE certain tracts or parcels of land lying and being in Windsor Township, Bertie County,
State of North Carolina, and being more particularly described as follows:
Tract 1:
BEING all of TRACT "A", containing 31.233 acres, more or less, as the same is shown on that
map prepared by Mayo and Associates, P.A. dated February 6, 2014, last revised November
3, 2014, and identified by the following legend: "Lease Survey Tract "A" and Tract "B", Survey
for Windsor Cooper Hill Solar'. This map is duly of record in Map Book 13, Page 908, Bertie
County Registry, and further reference is hereby made to said map for a more complete and
accurate description of the property.
BEING in all respects the same property shown and identified as TRACT D, containing 31.21
acres, more or less, on that map prepared by J. Gary Culp, Professional Land Surveyor, dated
June 2003, and identified by the following legend: "SURVEY FOR: COUNTY OF BERTIE
PROPERTY OF WEYERHAEUSER CORPORATION AND SUSTAINABLE FOREST, LLC",
recorded in Plat Cabinet B, Page 466, Bertie County Registry, and further reference is hereby
made to said map for a more complete and accurate description of the property.
Tract 2:
BEING all of TRACT "B", containing 20.986 acres, more or less, as the same is shown on that
map prepared by Mayo and Associates, P.A. dated February 6, 2014, and identified by the
following legend: "Lease Survey Tract "A" and Tract "B", Survey for Windsor Cooper Hill
Solar'". This map is duly of record in Map Book 13, Page 881, Bertie County Registry, and
further reference is hereby made to said map for a more complete and accurate description of
the property.
BEING in all respects the same property shown and identified as TRACT C, containing 20.97
acres, more or less, as the same is shown on that map prepared by J. Gary Culp, Professional
Land Surveyor, dated June 2003, and identified by the following legend: "SURVEY FOR:
COUNTY OF BERTIE PROPERTY OF WEYERHAEUSER CORPORATION AND
SUSTAINABLE FOREST, LLC", recorded in Plat Cabinet B, Page 466, Bertie County
Registry, and further reference is hereby made to said map for a more complete and accurate
description of the property.
TOGETHER WITH the right to use that certain access easement between the Tracts
described above and NC Highway 308 as described in that certain Easement Agreement by
and between John L. Pierce, Jr. and wife Dorothy P. Pierce, Illinois Municipal Retirement
Fund, the Town of Windsor and Bertie County dated October 23, 2013 and recorded in
Book 940 at Page 799 in the Bertie County, North Carolina, Public Registry.
TOGETHER ALSO WITH the right to use that certain access easement over and across the
State of North Carolina Department of Public Safety property as described in that certain
Easement Agreement by and betweeq, the Town of Windsor and Bertie County and the State
of North Carolina recorded in Book Y51 at Page r�yin the Bertie County, North Carolina,
Public Registry.
Exhibit A to Ground Lease - 1
CH-3107385 v5

TOGETHER ALSO WITH the right to use that certain utilities easement over and across the
State of North Carolina Department of Public Safety property as described in that certain
Easement Agreement by and between the State of North Carolina and Duke Energy Progress,
Inc. recorded in Book 9S il at Page O in the Bartle County, North Carolina, Public Registry,
as assigned to the Town of Windsor and Bartle County by that certain Assignment and
Assumption of Easement Agreement recorded in Book431Z'j, at Page (bql In the Bartle
County, North Carolina, Public Registry.
Exhibit A to Ground Lease - 2
CH-3197385 v5

Exhibit B to Ground Lease
Form of Easement Agreement
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT ("Agreement") is made this day of
201 , by the TOWN OF WINDSOR and BERTIE COUNTY, bodies politic
and existing under the laws of the State of North Carolina (collectively, "Owner") and
WINDSOR COOPER HILL SOLAR, LLC, a Delaware limited liability company ("Grantee").
RECITALS
A. Owner owns certain real property (the "Servient Estate") located in the County
of Bartle, State of North Carolina and more particularly described in Exhibit A attached hereto
and incorporated herein by this reference.
B. Grantee leases certain real property (the "Dominant Estate") located adjacent
to the Servient Estate in the County of Bartle, State of North Carolina pursuant to that certain
Ground Lease and Easement Agreement (the "Ground Lease") between Owner as Owner and
Grantee as Tenant, dated as of , a memorandum of which was recorded on
in the Official Records of Bartle County, North Carolina (the "Official Records")
and more particularly described in Exhibit B attached hereto and incorporated herein by this
reference. Capitalized temms not otherwise defined herein shall have the meaning given in the
Ground Lease.
C. Grantee intends to enter into one or more Power Purchase Agreements,
pursuant to which Grantee or one of Its affiliates will agree to engineer, construct and install
solar photovoltaic systems (the "Systems") in order to provide electrical energy and related
services generated by the Systems.
D. In order to facilitate construction, installation, operation and maintenance of the
Systems, Owner desires to grant to Grantee an easement for access, utility lines, water
pipelines, telecommunications lines, pole usage, equipment pads for switching stations and
related purposes, subject to the terms and conditions of the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENTS
1. GRANT OF EASEMENT. For good and valuable consideration paid by
Grantee, the receipt and legal sufficiency of which Owner hereby acknowledges, upon and
subject to the terms, conditions, restrictions and reservations set forth herein, Owner hereby
grants to Grantee, for the benefit of the Dominant Estate, an appurtenant, non-exclusive
easement (the "Easement") on, over, under and through the Easement area in the location
more particularly described in attached Exhibit C for the purposes of constructing, placing,
operating, maintaining, reconstructing, replacing, rebuilding, upgrading, removing, inspecting,
patrolling, modifying and/or repairing (a) equipment pads for switching station facilities related
to or necessitated by Grantee's Systems located on the Dominant Estate; (b) surface and
subsurface utilities related to or necessitated by Grantee's Systems located on the Dominant
Estate, which utilities may include, without limitation, electrical facilities and components and
distribution lines, water pipelines, communications lines, telephone lines and fiber optic lines
Exhibit B to Ground Lease - Page 1
CH-3197385 v5

and related facilities; and (a) roads for access, consisting of paved roads and necessary
Mures and appurtenances, in, over, under and upon the Easement area, by Grantee and
each Person in the group consisting of Grantee, all of Grantee's Affiliates, and each of their
respective directors, officers, employees, contractors, agents, successors, sublessee,
licensees, invitees and assigns (collectively, the "Grantee Group"), together with the right of
ingress and egress over the Servient Estate to access the Easement area.
2. CERTAIN COVENANTS.
2.1 Use and Maintenance of the Easement. Grantee shall be responsible
to maintain the Easement in good condition and in accordance with prudent industry
standards, and shall not unreasonably interfere with Owner's use of the Servient Estate or the
lawful joint use of others. Grantee shall repair damage to the Easement area or other portions
of the Servient Estate to the extent arising out of or related to the use of the Easement by
Grantee or any Person in the Grantee Group. Owner shall have the right to use the Servient
Estate in any manner not Inconsistent with the Easement and the rights granted to Grantee
under this Agreement, and Owner shall repair any damage that it causes to the Easement
area.
2.2 Comoliance with Laws by Grantee. Grantee and any Person in the
Grantee Group shall comply in all material respects with all federal, state or local act, statute,
law, ordinance, code, rule, regulation, order or other applicable legislative or administrative
action of any governmental authority having jurisdiction ("Laws") (including Environmental
Laws) relating to the Servient Estate (including the Easement) and such Party's activities
thereon. Grantee shall immediately notify Owner of (a) any Releases of any Hazardous
Materials on or affecting the Servient Estate (including the Easement) from those
improvements owned by Grantee or any Person In the Grantee Group located within the
Easement area or otherwise by Grantee or any Person in the Grantee Group within the
Easement area, (b) any failure of Grantee or any Person in the Grantee Group to comply with
any Environmental Law with respect to the Easement and Grantee's or any Person in the
Grantee Group's activities thereon, and (c) any action required by a governmental authority or
required in order to comply with Environmental Laws to clean up, contain or otherwise
ameliorate or remedy any Release ("Remedial Action") commenced or threatened against
Grantee or any Person in the Grantee Group by any governmental authority or other Person or
any allegation by a governmental authority or other Person that Grantee or any Person in the
Grantee Group has failed to comply with any Environmental Law with respect to the Easement
and Grantee's or any Person in the Grantee Group's activities thereon. Grantee shall
indemnify and hold Owner and the group consisting of Owner, all of Owner's Affiliates, as well
as Owner's Parties, and each of their respective directors, officers, employees, contractors,
agents, successors, sublessee, licensees, invitees and assigns (collectively, the "Owner
Group") harmless from and against any and all liability to the extent caused by (i) Grantee's or
any Person in the Grantee Group's violation of any Environmental Laws relating to the use of
the Easement on the Servient Estate or (h) any Release caused by Grantee or any Person in
the Grantee Group.
2.3 Compliance with Laws by Owner. Owner and any Person in the Owner
Group shall comply in all material respects with all Laws (including Environmental Laws)
relating to the Servient Estate and such Party's activities thereon. Owner shall immediately
notify Grantee of (a) any Releases of any Hazardous Materials on or affecting the Servient
Estate or the Easement, (b) any failure of Owner or any Person in the Owner Group to comply
with any Environmental Law with respect to the Easement, the Servient Estate and Owner's or
any Person in the Owner Group's activities thereon, and (c) any Remedial Action commenced
or threatened against Owner or any Person in the Owner Group by any governmental
Exhibit B to Ground Lease - Page 2
CH-3197385 v5

authority or other Person or any allegation by a governmental authority or other Person that
Owner or any Person in the Owner Group has failed to comply with any Environmental Law
with respect to the Easement, the Servient Estate and Owners or any Person in the Owner
Group's activities thereon. Owner shall Indemnify and hold Grantee and the Grantee Group
harmless from and against any and all liability to the extent caused by (1) Owner's or any
Person in the Owner Group's violation of any Environmental Laws relating to the Sentient
Estate or (ii) any Release caused by Owner or any Person in the Owner Group.
2.4 Manner of Perforoigince of Work. When possible, Grantee shall
perform all installation, maintenance, repair and replacement work permitted or required to be
performed by Grantee hereunder at such times, and in such a manner, so as to minimize any
unreasonable interference with Owner's use of the Servient Estate. Upon completion of any
such work, Grantee shall restore the affected area to its former condition insofar as reasonably
possible.
2.5 Indemnity and lnsuranc
(a) Indemnification by Grantee. Grantee shall indemnify, defend
and hold harmless the Owner Group from and against all Losses suffered or
incurred by any such Person by reason of, resulting from, whether directly or
Indirectly, or arising out of (1) the nonfulfillment or nonperformance of any
covenant or agreement of any Person within the Grantee Group in this
Agreement, or (2) the negligence or willful misconduct of any Person within the
Grantee Group in connection with the transactions contemplated by this
Agreement.
(b) Indemnification by Owner. Owner shall indemnify, defend and
hold harmless the Grantee Group from and against all Losses suffered or
incurred by any such Person by reason of, resulting from, whether directly or
Indirectly, or arising out of (1) the nonfulfillment or nonperformance of any
covenant or agreement of any Person within the Owner Group in this
Agreement, (2) the negligence or willful misconduct of any Person within the
Owner Group in connection with the transactions contemplated by this
Agreement, or (3) the inaccuracy of any representation or warranty of Owner
contained in this Agreement.
(c) Insurance Coverage. The provisions of Article 10 of the
Ground Lease are incorporated herein by reference as if fully set forth and
shall govern the Parties' rights to, as well as apply to, insurance coverage
under this Agreement.
2.6 Removal of Improvements. The provisions of the Ground Lease are
incorporated herein by reference as if fully set forth and shall govern the Patties' rights to, as
well as apply to the removal of, all Improvements, articles of personal property and all
business and trade fixtures, machinery and equipment owned or Installed by Grantee or the
Grantee Group on the Easement or the portions of the Servient Estate utilized in conjunction
with the Easement.
2.7 Covenants Run with the Lands. The covenants of the Parties made in
this Agreement shall be deemed to be covenants running with, binding upon, benefiting and
burdening the land pursuant to applicable law.
Exhibit B to Ground Lease - Page 3
CH-3197385 A

3. TERM, TERMINATION AND REMEDIES.
3.1 Term and Termination of Easements. The term of this Agreement, the
Easement and other rights granted hereunder (and the corresponding respective obligations of
the Parties) (collectively, the "Easement interests") shall continue in full force and effect from
the full execution of this Agreement until the date on which Grantee's rights as a tenant under
the Ground Lease (as the same may be extended) terminate or expire (the "Easement Term").
Within 30 days of the end of the Easement Term, Grantee shall execute, acknowledge and
deliver to Owner a quitclaim deed or any other document, in a form reasonably acceptable to
Owner, as may be reasonably necessary to confirm the termination of the Easement Interests
granted in this Agreement and to eliminate this Agreement as an encumbrance on the title of
the Servient Estate.
3.2 Remedies. In the event of a default under this Agreement by either
Party, the non -defaulting Party shall send written notice pursuant to Section 5.12 hereof of
such default to the defaulting Party, and unless such default is cured within 45 days of the
date of such written notice, the non -defaulting Party shall be entitled to all remedies (other
than termination of this Agreement and the Easement herein granted) available at law or in
equity for the defaulting Parry's failure to comply with the provisions of this Agreement,
including, without limitation, injunctive relief. In addition, if such default is not cured within
such 45 day period, then the non -defaulting Parry shall have the right to cure such default, in
which case all costs reasonably incurred by the non -defaulting Party in effecting such cure
shall be paid by the defaulting Party within 30 days after demand therefor.
4. OWNER'S HAZARDOUS MATERIALS REPRESENTATION. To Owners
actual knowledge, (a) neither Owner, nor any third party, has engaged in the generation, use,
manufacture, treatment, transportation, storage, or disposal of any Hazardous Materials on or
affecting the Easement area in violation of any Environmental Laws or in a manner which
would require corrective action pursuant to any Environmental Laws; and (b) neither Owner,
nor any third patty, has received any notice of any material violation of any Environmental
Laws with respect to the Easement area (including groundwater on, in, or under the Easement
area) about which a governmental authority would require corrective action.
5. MISCELLANEOUS.
5.1 Successors and Assigns. This Agreement shall be binding on and
shall inure to the benefit of the Parties, their respective heirs, successors (by merger,
consolidation or otherwise), assigns, devisees, administrators and representatives. This
Agreement may only be assignable as permitted in, and consistent with, Article 22 of the
Ground Lease, which Article 22 is incorporated herein by reference as If fully set forth.
5.2 Amendments. No change, amendment or modification of this
Agreement shall be valid or binding upon the Parties unless such change, amendment or
modification shall be in writing and duly executed by both Parties.
5.3 Captions. The captions contained in this Agreement are for
convenience and reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provision contained herein.
5.4 Severability. The invalidity of one or more phrases, sentences, clauses
or sections contained in this Agreement shall not affect the validity of the remaining portions of
this Agreement so long as the material purposes of this Agreement can be determined and
effectuated.
Exhibit B to Ground Lease - Page 4
CH-3197365 v5

5.5 No Waiver. Any failure of either Party to enforce any of the provisions
of this Agreement or to require compliance with any of its terms at any time during the
pendency of this Agreement shall in no way affect the validity of this Agreement, or any part
hereof, and shall not be deemed a waiver of the right of such Party thereafter to enforce any
and each such provision. Any consent or approval given pursuant to this Agreement shall be
limited to its express terms and shall not otherwise increase the obligations of the Patty giving
such consent or approval or otherwise reduce the obligations of the Patty receiving such
consent or approval.
5.6 Further Assurances, Each Party agrees to execute and deliver all
further instruments and documents, and take any further action that may be reasonably
necessary to effectuate the purposes and intent of this Agreement.
5.7 Draflog Interpretations. Preparation of this Agreement has been a
joint effort of both the Parties and the resulting document shall not be construed more severely
against one of the Parties than against the other by reason of authorship of this document.
5.8 Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of North Carolina, and venue shall be in
Berne County, North Carolina.
5.9 Survival. Notwithstanding any provision of this Agreement to the
contrary, expiration or other termination of this Agreement shall not relieve the Parties of
obligations that by their nature should survive such expiration or termination, Including
promises of indemnity and payment obligations.
5.10 No Joint Venture. Neither this Agreement nor anything contained
herein shall be deemed to make Owner in any way or for any purpose a partner, joint venturer
or associate in any relationship with Grantee other than that of Owner, as Owner of the
Easement, and Grantee, as grantee of the Easement, nor shall this Agreement or any
provision thereof be construed to authorize either to act as agent for the other except as
expressly provided in this Agreement.
5.11 Attorneys' Fees. In the event that Owner or Grantee fails to perform
any of its obligations under this Agreement or in the event a dispute arises concerning the
meaning or interpretation of any provision of this Agreement, the defaulting Party or the Party
not prevailing in such dispute, as the case may be, shall pay any and all reasonable costs and
expenses incurred by the other Party in enforcing or establishing its rights hereunder,
Including, without limitation, court costs and reasonable counsel fees. The right of Owner or
Grantee, as the case may be, to all costs and expenses incurred by it in enforcing or
establishing its rights hereunder pursuant to the provisions of this Section 5.11 shall include,
without limitation, all costs and expenses incurred by Owner or Grantee, as the case may be,
including, without limitation, court costs and reasonable counsel fees, in the enforcement of all
obligations of Owner or Grantee, as the case may be, under this Agreement or otherwise with
respect to the Easements, whether or not legal action was commenced, and including all such
costs and expenses incurred in an action or participation in, or in connection with, a case or
proceeding under Chapter 7 or 11 of the Bankruptcy Code, or any successor statute thereto.
5.12 Notices. Any notice, consent or other formal communication required
or permitted to be given by a Party pursuant to the terms of this Agreement shall be in writing
and shall be deemed delivered (a) when delivered personally or by email, unless such delivery
is made (i) on a day that is not a business day in the place of receipt or (ii) after 5:00 p.m. local
time on a business day in the place of receipt, in either of which cases such delivery will be
Exhibit B to Ground Lease - Page 5
CH-3197385 v5

deemed to be made on the next succeeding business day, (b) on the next business day after
timely delivery to a reputable overnight courier and (c) on the business day actually received if
deposited in the U.S. mail (certified or registered mail, return receipt requested, postage
prepaid), addressed as follows (or to such other address or having such other contact
information as either Party may hereafter specify for such purpose by like notice to the other
Party from time to time):
If delivered to Grantee:
Windsor Cooper Hill Solar, LLC
C/o DEGS NC Solar, LLC
550 South Tryon Street - DEC 18A
Charlotte, North Carolina 2B202
Attention: Robert Stewart II
Email: [e-mail]
Phone: [phone]
With a copy to:
Duke Energy Corporation
139 East Fourth Street, Room 1212-Main
Cincinnati, Ohio 45202
Attention: George Dwight il, Deputy General Counsel
Email: [e-mail]
Phone: [phone]
If delivered to Owner: Town of Windsor
c/o Allen Castelloe
P.O. Box 508
128 South King Street
Windsor, NC 27983
Bertie County
C/o John Ed Whitehurst
Interim County Manager
P.O. Box 530
106 Dundee Street
Windsor, NC 27983
With a copy to: M. Braxton Gillam, III
Attorney for the Town of Windsor
P.O. Box 547
Windsor, NC 27983
Jonathan E. Huddleston
Attorney for Bertie County
P.O. Drawer 100
Windsor, NC 27983
5.13 Oocumen_ tg Included. This Agreement consists of this document and
the Exhibits attached hereto in accordance with the provisions hereof, which are specifically
incorporated herein and made a part hereof by this reference.
Exhibit B to Ground Lease - Page 6
CH-3197385 v5

5.14 Counterparts Signatures. This Agreement may be executed in
counterparts. All executed counterparts shall constitute one agreement, and each counterpart
shall be deemed an original. The Parties hereby acknowledge and agree that facsimile
signatures or signatures transmitted by electronic mail in so-called "pdf format shall be legal
and binding and shall have the same full force and effect as if an original of this Assignment
had been delivered. Owner and Grantee (1) intend to be bound by the signatures on any
document sent by facsimile or electronic mail, (ii) are aware that the other Party will rely on
such signatures, and (Ili) hereby waive any defenses to the enforcement of the terms of this
Agreement based on the foregoing forms of signature.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first
above written.
OWNER:
TOWN OF WINDSJOR
By: T G SEAL)
Na • James F. Hogga f, Mayo
Attest:
Town Clerk
OWNER
BERTIE COUNTY
By: SEAL)
Name: J. Wallace Perry, Chairman of Board
of Commissioners
Attest:
Clerk to the Board of Commissioners
CH-3197385 v5
GRANTEE:
WINDSOR COOPER HILL SOLAR, LLC
By:
Name:
Title:
Exhibit B to Ground Lease - Page 7

STATE OF NORTH CAROLINA
COUNTY OF BERTIE I
I,� i0WQ- W� t l s a Notary Public, for the County and State aforesaid, certify
that L. Allen Castelloe personally appeared before me this day and acknowledged that he is
the Clerk for the Town of Windsor, a political subdivision of the State of North Carolina, and
that by authority duly given and as the act of the Board of Commissioners of Town of Windsor,
the foregoing instrument was signed in its name by James F. Hoggard, its Mayor, sealed with
its seal, and attested by L. Allen Castelloe as Town Clerk. �Witness my hand and notarial seal or stamp, this the day of cLdlt , 201 .
lJlCe��y LiJ� L�7C. �—
Notary Public (Notarial-SeaW&amp)
OFFIUTALSEAL
My Commission Expires I� oi5 ri,.i..- NOTARYPUBLIC-NORTHCAROLINA
/'i COUNTY OF aERTIE
OIANE1 WHITE
vi
STATE OF NORTH CAROLINA
COUNTY OF BERTIE
1, , a Notary Public, for the County and State aforesaid, certify
that personally appeared before me this day and acknowledged
that he/she is the Clerk to the Board of Commissioners of Bartle County, a political subdivision
of the State of North Carolina, and that by authority duly given and as the act of the Board of
Commissioners of Bartle County, the foregoing instrument was signed in its name by J.
Wallace Perry, Its Chairman, sealed with its seal, and attested by
as Clerk to the Board of Commissioners of Bertie County.
Witness my hand and notarial seal or stamp, this the — day of 201
Notary Public (Notarial Seal/Stamp)
My Commission Expires:
Exhibit B to Ground Lease - Page 8
CH-3197385 v5

STATE OF _
COUNTY OF
1, , a Notary Public, for the County and State aforesaid, certify
that President of Windsor Cooper HIII Solar, LLC, a Delaware
limited liability company, personally appeared before me this day and acknowledged the due
execution of the foregoing instrument for the purposes therein expressed.
Witness my hand and notarial seal or stamp, this the _ day of 201_.
Notary Public (Notarial Seal/Stamp)
My Commission Expires:
Exhibit B to Ground Lease - Page 9
CH-3197385 v5

EXHIBIT A TO THE EASEMENT AGREEMENT
Description of Servient Estate
Located in Bartle County, North Carolina, and more particularly described as follows:
Approximately acres of cleared land located at owned by
. The particular acreage will be described in a survey. The survey
descriptions will replace this paragraph.
Exhibit B to Ground Lease - Page 10
CH-31978860

EXHIBIT B TO THE EASEMENT AGREEMENT
Description of Dominant Estate
THOSE certain tracts or parcels of land lying and being in Windsor Township, Bartle County,
State of North Carolina, and being more particularly described as follows:
Tract 1:
BEING all of TRACT D, containing 31.21 acres, more or less, as the same is shown on that
map prepared by J. Gary Culp, Professional Land Surveyor, dated Jun3 2003, and identified
by the following legend: "SURVEY FOR: COUNTY OF BERTIE PROPERTY OF
WEYERHAEUSER CORPORATION AND SUSTAINABLE FOREST, LLC". This map is duly
of record in Plat Cabinet B., Page 466, Bartle County Registry, and further reference is hereby
made to said map for a more complete and accurate description of the property.
Tract 2:
BEING all of TRACT C, containing 20.97 acres, more or less, as the same is shown on that
map prepared by J. Gary Culp, Professional Land Surveyor, dated Jun3 2003, and identified
by the following legend: "SURVEY FOR: COUNTY OF BERTIE PROPERTY OF
WEYERHAEUSER CORPORATION AND SUSTAINABLE FOREST, LLC'. This map is duly
of record in Plat Cabinet B., Page 466, Bartle County Registry, and further reference is hereby
made to said map for a more complete and accurate description of the property.
TOGETHER WITH the right to use that certain access easement between the Tracts
described above and NC Highway 308 as described in that certain Easement Agreement by
and between John L. Pierce, Jr. and wife Dorothy P. Pierce, Illinois Municipal Retirement
Fund, the Town of Windsor and Bertie County dated October 23, 2013 and recorded in Book
940, Page 799, and the related survey at Map Book 13 at Page 862, both in the Bertie County,
North Carolina, Public Registry.
Exhibit B to Ground Lease - Page 11
CH•3197385 v5

EXHIBIT C
to Ground Lease
SOLAR SKYWAY EASEMENT
STATE OF NORTH CAROLINA SOLAR SKYWAY EASEMENT AGREEMENT
COUNTY OF BERTIE
THIS SOLAR SKYWAY EASEMENT AGREEMENT (this "Agreement'), is made this
_ day of 201_, by and between the TOWN OF WINDSOR and
BERTIE COUNTY, bodies politic and existing under the laws of the State of North Carolina
(collectively, "Grantor"), and WINDSOR COOPER HILL SOLAR, LLC, a Delaware limited
liability company ("Grantee").
WITNESS ETH:
WHEREAS, Grantor is the owner of [that certain tract/those certain tracts] of land
identified and described as the "Grantor's Property" on Exhibit A attached hereto and
incorporated herein by this reference (the "Grantors Property'); and
WHEREAS, Grantee is the lessee of an approximately acre portion of Grantor's
Property under the temms of a Ground Lease and Easement Agreement between Grantor and
Grantee dated as of , 2013 (the "Site Lease") (such portion being
herein referred to as the "Premises"), and as said Premises is more particularly described on
Exhibit B attached hereto and incorporated herein; and
WHEREAS, Grantee has constructed or will construct certain solar photovoltaic
electric generating facility Improvements (the "Solar Power Facility") on the Premises; and
WHEREAS, in connection with the efficient operation of the Solar Power Facility, it is
necessary that Grantee maintain the unobstructed passage of sunlight through an area
surrounding the Solar Power Facility; and
WHEREAS, subject to the terms of this Agreement, Grantor has agreed to grant to
Grantee the solar skyway easement herein described through, over, upon and across the
remainder of Grantors Property which is not included within the Premises (the "Solar Skyway
Easement Area").
NOW, THEREFORE, FOR AND IN CONSIDERATION of the above premises and for
other good and valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, Grantor hereby conveys, grants and warrants to Grantee a solar skyway
easement over, across and above the Solar Skyway Easement Area in accordance with the
following terms.
1. Grant of Solar Skyway Easement, Grantor hereby agrees that no structure,
activity, or land use of Grantor shall cast a shadow on any solar energy collector of Grantee
located on the Premises unless such structure, activity, or land use exists on the effective date
of this easement and is not required to be removed or is excepted by the terms of this
instrument. Once Tenant has cleared the Property there will be no vegetation on the Property
that could cast a shadow on any solar energy collector of Grantee and so Owner is relieved of
Exhibit C to Ground Lease - Page 1
CH-3197385 A

any obligation regarding the further cutting or clearing of vegetation from the Property. Owner
is not responsible for the vegetation or any structure or other activity on land that is owned by
others.
Upon and subject to advance written approval from Grantor, the following rights are
also granted to Grantee: to enter said Solar Skyway Easement Area and to remove from the
Solar Skyway Easement Area, now or at any time during the term of the Site Lease, as such
term may be extended, trees, structures or other obstructions that may materially impair or
reduce the electric power output of the Solar Power Facility and trees of any species that
Grantee determines will grow at maturity to a height that will materially Impair or reduce the
electric power output of the Solar Power Facility; to trim or remove and to keep trimmed or
remove dead, diseased, weak or leaning trees or limbs which, in the opinion of the Grantee,
might interfere with or fall upon the Solar Power Facility, Further, Grantor shall not allow any
third party claiming by or through Grantor to take any action, or fail to take any action, which
would result in any shading of the Solar Power Facility solar collectors that materially Impairs
or reduces the electric power output of the Solar Power Facility. The above reference to
Skyway Easement is applicable only to Owner's property.
2. Title to Property. Grantor warrants to Grantee, its successors and assigns,
that Grantor is the sole owner of good, marketable and insurable fee simple title to the
Grantor's Property as described herein, has the right to grant and convey the aforesaid solar
skyway easement, and will warrant and defend its right to so grant said easement against the
lawful claims of all persons.
3. Running with the Land. The burdens and benefits of this easement are
transferable and shall run with the land to subsequent grantees of the Grantor and the
Grantee. This solar skyway easement shall remain in effect until the Site Lease is terminated.
4. Governing Law. This Agreement is to be governed, construed and enforced in
accordance with the laws of the State of North Carolina.
6. Bindlno Effect. Grantor hereby represents and warrants that it has the right,
power and authority to enter into this Agreement and to grant the easements in accordance
with the terms and conditions hereof. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto, their successors and assigns.
6. Severability. If any term, covenant or condition of t his Agreement, or any
application thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, such provision, or the application of such term, covenant or condition, to
persons or circumstances other than those as to which it Is held invalid or unenforceable, shall
be deemed severable, and the remainder thereof shall not be affected thereby, and each term,
covenant or condition of this Agreement shall be valid, and may be enforced to the fullest
extent permitted by law.
7. Amendment to Agreement. This Agreement may be amended only by a
writing executed by each of the Parties hereto, or their applicable successors or assigns, and
properly recorded in the Bartle County, North Carolina, Public Registry.
8. Remedies for Breach. The terms and conditions of this Agreement shall be
enforceable by actions for specific performance or injunction, in addition to any other remedies
available at law.
Exhibit C to Ground Lease - Page 2
CH-3197385 v5

9. No Waiver. No delay or omission by any Party in exercising any right or power
accruing upon any noncompliance or failure of performance by the other Party under the
provisions of this Agreement shall impair any such right or power or be construed to be a
waiver thereof
10. Counterparts. This Agreement may be executed in counterparts all of which
taken together shall be deemed one original when executed by all Parties.
TO HAVE AND TO HOLD the easements hereinabove described unto Grantee, its
successors and assigns, for the aforesaid uses and purposes.
IN WITNESS WHEREOF, Grantor has duly executed this Agreement as of the day
and year first above written.
OWNER:
GRANTEE:
TOWN OF WINDSOR WINDSOR COOPER HILL SOLAR, LLC
By: (SEAL)
Name: James F. Haggard, Mayor By.
Name:
Title:
Attest
Town Clerk
OWNER
BERTIE COUNTY
By: (SEAL)
Name: J. Wallace Perry, Chairman of Board
of Commissioners
Attest:
Clerk to the Board of Commissioners
Exhibit C to Ground Lease - Page 3
CH-3197385 v5

STATE OF NORTH CAROLINA
COUNTY OF BERTIE
I, a Notary Public, for the County and State aforesaid, certify
that L. Allen Castelioe personally appeared before me this day and acknowledged that he is
the Clerk for the Town of Windsor, a political subdivision of the State of North Carolina, and
that by authority duly given and as the act of the Board of Commissioners of Town of Windsor,
the foregoing instrument was signed in its name by James F. Hoggard, its Mayor, sealed with
Its seal, and attested by L. Allen Castelloe as Town Clerk.
Witness my hand and notarial seal or stamp, this the _ day of 201
Notary Public (Notarial Seal/Stamp)
My Commission Expires:
STATE OF NORTH CAROLINA
COUNTY OF BERTIE
1, , a Notary Public, for the County and State aforesaid, certify
that personally appeared before me this day and acknowledged that
he/she Is the Clerk to the Board of Commissioners of Bartle County, a political subdivision of
the State of North Carolina, and that by authority duly given and as the act of the Board of
Commissioners of Bartle County, the foregoing instrument was signed in its name by J.
Wallace Perry, its Chairman, sealed with its seal, and attested by
as Clerk to the Board of Commissioners of Bartle County.
Witness my hand and notarial seal or stamp, this the _ day of 201
Notary Public (Notarial Seal/Stamp)
My Commission Expires:
Exhibit C to Ground Lease - Page 4
CH-3197385 v5

STATE OF
COUNTY(
1, , a Notary Public, for the County and State aforesaid, certify
that President of Windsor Cooper Hill Solar, LLC, a Delaware
limited liability company, personally appeared before me this day and acknowledged the due
execution of the foregoing instrument for the purposes therein expressed.
Witness my hand and notarial seal or stamp, this the _ day of 201_
Notary Public (Notarial Seal/Stamp)
My Commission Expires:
Exhibit C to Ground Lease - Page 5
CH-3197385 v5

EXHIBIT A TO SOLAR SKYWAY EASEMENT AGREEMENT
Grantor's Property
Located in Bertie County, North Carolina, and more particularly described as follows:
Approximately acres of cleared land located at owned by
The particular acreage will be described in a survey. The survey
descriptions will replace this paragraph.
Exhibit C to Ground Lease - Page 6
CH-3197386 v5

EXHIBIT B TO THE SOLAR SKYWAY EASEMENT AGREEMENT
Premises
THOSE certain tracts or parcels of land lying and being in Windsor Township, Bertie County,
State of North Carolina, and being more particularly described as follows:
Tract 1:
BEING all of TRACT D, containing 31.21 acres, more or less, as the same is shown on that
map prepared by J. Gary Culp, Professional Land Surveyor, dated Jun3 2003, and Identified
by the following legend: "SURVEY FOR: COUNTY OF BERTIE PROPERTY OF
WEYERHAEUSER CORPORATION AND SUSTAINABLE FOREST, LLC". This map is duly
of record in Plat Cabinet B., Page 466, Bertie County Registry, and further reference is hereby
made to said map for a more complete and accurate description of the property.
Tract 2:
BEING all of TRACT C, containing 20.97 acres, more or less, as the same is shown on that
map prepared by J. Gary Culp, Professional Land Surveyor, dated Jun3 2003, and identified
by the following legend: "SURVEY FOR: COUNTY OF BERTIE PROPERTY OF
WEYERHAEUSER CORPORATION AND SUSTAINABLE FOREST, LLC". This map is duly
of record In Plat Cabinet B., Page 466, Bertie County Registry, and further reference is hereby
made to said map for a more complete and accurate description of the property.
TOGETHER WITH the right to use that certain access easement between the Tracts
described above and NC Highway 308 as described In that certain Easement Agreement by
and between John L. Pierce, Jr. and wife Dorothy P. Pierce, Illinois Municipal Retirement
Fund, the Town of Windsor and Bertie County dated October 23, 2013 and recorded in Book
940, Page 799, and the related survey at Map Book 13 at Page 862, both In the Bertie County,
North Carolina, Public Registry.
Exhibit C to Ground Lease - Page 7
CH-3197365 v5

EXHIBIT D
To Ground Lease
Form of Memorandum of Lease
STATE OF NORTH CAROLINA
COUNTY OF BERTIE
MEMORANDUM OF LEASE
TOWN OF WINDSOR and BERTIE COUNTY, bodies politic, organized and existing under the
laws of the State of North Carolina, collectively as LANDLORD, having an address of
, hereby leases to WINDSOR COOPER HILL SOLAR, LLC, a Delaware
limited liability company, as TENANT, having an address of c/o DEGS NC Solar, LLC, 550
South Tryon Street - DEC 18A, Charlotte, NC 28202, Attention Robert Stewart II, for a term
beginning on October 24, 2013, and continuing for a maximum period of thirty (30) years,
including extensions and renewals, following the date that Tenant notifies Landlord that the
solar photovoltaic electric generating facility being constructed on the leased property is
commercially operational, the following property:
Those certain premises situated in Bertie County, North Carolina, consisting of
approximately 52.219 acres of land, as said premises are more particularly described on
Exhibit A and incorporated herein by reference.
The provisions set forth in a written Ground Lease and Easement Agreement between
the 24th day of October, 2013, are hereby incorporated in this Memorandum.
LANDLORD:
TOWN OF WINDSOR
TENANT:
WINDSOR COOPER HILL SOLAR, LLC
By: (SEAL)
Name: James F. Hoggard, Mayor By:
Name:
Title:
Attest
Town Clerk
OWNER
BERTIE COUNTY
By: (SEAL)
Name: J. Wallace Perry, Chairman of Board
of Commissioners
Attest:
Clerk to the Board of Commissioners
Exhibit D to Ground Lease - Page 1
CH-3107365 V5

STATE OF NORTH CAROLINA
COUNTY OF BERTIE
I, , a Notary Public, for the County and State aforesaid, certify
that L. Allen Castelloe personally appeared before me this day and acknowledged that he is
the Clerk for the Town of Windsor, a political subdivision of the State of North Carolina, and
that by authority duly given and as the act of the Board of Commissioners of Town of Windsor,
the foregoing instrument was signed in its name by James F. Haggard, its Mayor, sealed with
its seal, and attested by L. Allen Castelloe as Town Clerk.
Witness my hand and notarial seal or stamp, this the,_ day of 2014.
Notary Public (Notarial Seal/Stamp)
My Commission Expires:
STATE OF NORTH CAROLINA
COUNTY OF BERTIE
I, , a Notary Public, for the County and State aforesaid, certify
that personally appeared before me this day and acknowledged
that he/she is the Clerk to the Board of Commissioners of Bartle County, a political subdivision
of the State of North Carolina, and that by authority duly given and as the act of the Board of
Commissioners of Bartle County, the foregoing instrument was signed in its name by J.
Wallace Perry, its Chairman, sealed with its seal, and attested by
as Clerk to the Board of Commissioners of Bertie County.
Witness my hand and notarial seal or stamp, this the _ day of 2014
Notary Public (Notarial Seal/Stamp)
My Commission Expires:
Exhibit D to Ground Lease - Page 2
CH-3197385 v5

STATE OF
COUNTY C
I, , a Notary Public, for the County and State aforesaid, certify
that President of Windsor Cooper Hill Solar, LLC, a Delaware
limited liability company, personally appeared before me this day and acknowledged the due
execution of the foregoing instrument for the purposes therein expressed.
Witness my hand and notarial seal or stamp, this the _ day of 2014
Notary Public (Notarial Seal/Stamp)
My Commission Expires:
Exhibit D to Ground Lease - Page 3
CH-3197355 v5

EXHIBIT A TO MEMORANDUM OF LEASE
THOSE certain tracts or parcels of land lying and being In Windsor Township, Bertie County,
State of North Carolina, and being more particularly described as follows:
Tract 1:
BEING all of TRACT "A", containing 31.233 acres, more or less, as the same 20 is shown
evlsed
n that
map prepared by Mayo and Associates, P.A. dated February 6,
last
2014, and identified by the following legend: "Lease Survey Tract "A" and
Tract "B Survey for Windsor Cooper Hill Solar". This map is duly of record in Map Book
_, Page Bartle County Registry, and further reference is hereby made to said map
fora more complete and accurate description of the property.
BEING in all respects the same property shown and identified as TRACT D, containing 31.21
acresmore or less, on that map prepared by J. Gary Culp, Professional Land Surveyor, dated
,2003, and identified by the
June following legend: "SURVEY FOR: COUNTY OF BERTIE
PROPERTY OF WEYERHAEUSER CORPORATION AND SUSTAINABLE FOREST, LLC",
recorded in Plat Cabinet B, Page 466, Barmade to said map fora more compete and raccurate tdescnpt n of the pry, and opertyrence is hereby
Tract 2:
BEING all of TRACT "B", containing 20.986 acres, more or less, as the same is slost
hown
revised
on that
map prepared by Mayo and Associates, P.A. dated February 6,
2014 and identified by the following legend: "Lease Survey Tract "A" and
Tract " Y for Windsor Cooper Hill a dafurtherhis map is reference suly of record in Map he hereby made to said
ook
Page _, Berrie County Registry,
fora more complete and accurate description of the property.
BEING in all respects the same property shown and identified as TRACT C, containing 20.97
acres, more or less, as the same is shown on that map prepared by J. Gary Culp, Professional
Land Surveyor, dated June 2003, and identified by the following legend: "SURVEY FOR:
COUNTY OF BERTIE PROPERTY OF WEYERHAEUSER CORPORATION AND
SUSTAINABLE FOREST, LLC", recorded in Plat Cabinet B, Page 466, Bertie County
Registry, and further reference is hereby made to said map for a more complete and accurate
description of the property.
TOGETHER WITH the right to use that certain access easement between the Tracts
described above and NC Highway 308 as described in that certain Easement Agreement by
and between John L. Pierce, Jr. and wife Dorothy P. Pierce, Illinois Municipal Retirement
ctober
in Book
Fund, the T99nandythedrelated ssor and Brvely t Map Book e County 130at Page 862, both in the Barre County,
North Carolina, Public Registry.
TOGETHER ALSO WITH the right to use that certain access and utilitiesaeasementsdscribed 'err that
r and
across the State of North Carolina Department of Public Safety property and the
certain Easement Agreement by and between the Town of Windsor and Bertie Counz 14 and
State of North Carolina—. dated
recorded in Map Book _ at Page _ in the der —tie County, North Carolina, Public
Registry.
Exhibit D to Ground Lease - Page 4
CH-3197355 v5

Attachment 5
Option to Lease dated September 26, 2013 for Windsor Cooper
Hill
Confidential Information

STATE OF NORTH CAROLINA
COUNTY OF BERTIE
Cv6AF1tb4en4it(
OPTION TO LEASE
THIS OPTION TO LEASE (this "Agreement") made as of the 26'h day of September,
2013 (the "Effective Date") by and between the Town of Windsor and Bertie County, bodies
politic organized and existing under the laws of the State of North Carolina (collectively referred
to as "Owner') and SUNENERGYI, LLC, a North Carolina LLC ("Tenant"):
WITNESSETH
WHEREAS, Owner owns two tracts of land, one tract containing approximately 31 acres
and the other containing approximately 21 acres, located in Bertie County, North Carolina, as
more particularly described on Exhibit A attached hereto and incorporated herein by reference,
together with any improvements located thereon and all rights, privileges, and easements
appurtenant thereto (the "Property");
WHEREAS, Tenant desires to acquire an option to lease the Property for the purpose of
constructing and operating certain improvements thereon consisting of solar photovoltaic
electricity generating facilities and related facilities (collectively, the "Development"); and
NOW, THEREFORE, in consideration of the promises, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree as follows:
1, O lion.
(a) Owner, for and in consideration of the sum of Five Hundred and No/] 00 Dollars
($500.00) (the aforesaid sum, together with all interest earned thereon and any extension
payments made in accordance with the provisions of Paragraph 2 below, is hereinafter
referred to as tite "Option Fee") to be paid by Tenant within five (5) business days after the
full execution of this Agreement to Owner, does hereby give and grant unto Tenant, its
successors or assigns, the exclusive right, option and privilege to lease the Property (the
"Option") in accordance with the ternis and conditions set forth in this Agreement, The
Option Fee shall be nonrefundable and shall be retained by Owner regardless of whether
Tenant exercises the Option.
(b) Tenant contemplates developing solar photovoltaic electricity generating facilities
and related facilities on the Property. Prior to the end of the Initial Option Period (as defined
below), Tenant shall cause the Property, and to the extent then identified, the "Easement
Areas", as such tern is defined in the form of Ground Lease and Easement Agreement
(collectively, the "Lease") attached as Exhibit B to this Agreement, to be surveyed. The term
"Property", as used herein, shall mean both the land described on Exhibit A (herein
sometimes referred to as the "Site") and also such property(ies) of Owner, if any, as Tenant
shall identify as the "Easement Areas" (as such term is defined in the Lease). The legal
description of the Site and the Easement Areas shall be attached to the Lease as Exhibit A of
the Lease and the aggregate number of gross acres of the Site shall be inserted into Section

4_1 of the Lease and shall be used to calculate the Basic Rent payable thereunder. Upon such
designation of the Easement Areas with specificity, the parties shall execute and record a
supplemental Memorandum of Option which shall describe the Site and Easement Areas with
specificity.
2• Option Term, This Option shall begin as of the date hereof and shall expire, unless
extended as hereinafter provided, one hundred and twenty (120) days after the date hereof (the
aforesaid period is hereinafter referred to as the "Initial Option Period," and as and if extended is
hereinafter referred to as the "Option Period"). In the event Tenant shall be unable to determine
during the Initial Option Period whether the Property is suitable for the Development, then it
may either (i) allow the Option to expire without being exercised or (ii) extend the Option Period
with respect to the Site for an additional period of one hundred twenty(120) days (the
"Additional Option Period") upon payment to the Owner of an additional fee (the "Additional
Option Fee") of Five Hundred and Noll 00 Dollars ($500.00).
3• Option Exercicr
— --__. At any time during the Option Period and following the written
approval by both Tenant and Owner (such approval not to be unreasonably with -held, conditioned
or delayed) of the final legal description of the Site as described above, Tenant may exercise this
Option with respect to the Site by delivering to Owner written notice of its election. Promptly
following such exercise of its Option, Tenant will deliver to Owner four (4) originals of the
Lease identifying the Site (together with each Easement Agreement, the form of which is
included therewith) fully executed by Tenant. Upon said delivery of the Lease by Tenant,
Owner shall also execute the Lease (together with each Easement Agreement, the form of which
is included therewith) and thereby lease to Tenant, and Tenant shall lease from Owner, the Site
and the Easement Areas. In the event Tenant does not exercise the Option in accordance with
this Paragraph 3, all rights of Tenant and obligations of Owner under this Agreement shall
terminate, except as otherwise specifically provided below.
4. The Lease. The Lease shall be in the form attached hereto as Exhibit B, with the final
acreage and the descriptions of the Site and the Easement Areas which will comprise the
Property (as determined pursuant to Section IN above) to be inserted into said Lease.
5• Title and Survev Matters. It is understood and agreed that should the Option be
exercised, the Property will be leased to Tenant under the Lease free and clear of all liens and
encumbrances except (i) the lien of real and personal property ad valorem taxes for the year in
which the Lease shall commence, n00 such easements, covenants and restrictions as are of record
as of the Effective Date and disclosed on Tenant's title commitment respecting the Property
which title commitment is subject to review and approval by Owner prior to Tenant's exercise of
the Option, and (iii) such matters as would be revealed by a current, accurate survey of the
Property, as of the date that is the earlier of the date Tenant exercises its Option hereunder or the
date of the survey, if any, obtained by Tenant regarding the Property (collectively the "PermittedExceptions").
6• Tenant Due Dili once. During the Option Period, Tenant and its agents may enter the
Property to conduct certain tests and inspections (including, without limitation surveys,
engineering and environmental studies, soil tests, groundwater measurements, test borings and
such other tests or studies which Tenant may deem advisable) and conduct other evaluations of,

and inquiries into the suitability of the Property for development of the Development thereon
(collectively, the "Due Diligence"). Tenant shall not damage or alter the Property while
conducting its inspections, tests and studies. Tenant agrees to indemnify and hold Owner
harmless from any claim, liability, loss, cost, damage, or expense suffered by Owner as a result
Of Tenant's Due Diligence activities on the Property. Owner agrees to cooperate with Tenant in
conjunction with the Due Diligence, and will promptly upon the execution hereof furnish Tenant
with copies of (or otherwise make available to Tenant for its inspection) any information in its
Possession specifically requested by Tenant that would be relevant to Tenant's Due Diligence.
7• Owner's Re -presentations. Excepting for and subject to the application and impact of the
above Permitted Exceptions thereon, Owner hereby represents and warrants to Tenwner to Tenant also as of the date
ant as follows,
which representations and warranties shall be deemed made by O
of Tenant's exercise of the Option. NOTE: The parties have entered into a Memorandum of
Understanding Regarding Access dated
representations and warranties set out in thus paragraph.�'1'�te�Ag'Mem, w ich is attached hermodifies theOeto and
its terms are incorporated by reference into this Option as if fully set out herein.
(a) Owner has full power and authority to execute, deliver and carry out the terms
and provisions of this Agreement. This Agreement has been duly executed and delivered by
Owner and (upon execution and delivery by Tenant) constitutes the legal, valid and binding
obligation of Owner, enforceable against it in accordance with the terms hereof, subject as to
enforceability of remedies to limitations imposed by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the enforcement of creditors' rights
generally and general principles of equity.
(b) There are no material claims, actions, suits, or proceedings pending, or to the best
of Owner's knowledge, threatened against or affecting the Property.
(c) No person, firm or other legal entity has any right or option to acquire the
Property or any portion or portions thereof or any interest or interests therein.
(d) Owner has not entered into any agreement with reference to the Property, and
neither Owner nor the Property is subject to any claim, demand, suit, unfiled lien, proceeding
or litigation of any kind, pending or outstanding, or to the best of Owner's knowledge,
threatened or likely to be made or instituted which would (i) be binding upon Tenant; or (ii)
limit Tenant's full use and enjoyment of the Property; or (iii) limit Owner's ability to enter
into this Agreement and consummate the transaction contemplated hereby.
(e) There is no pending or, to Owner's best knowledge, threatened, condemnation or
knowledge is any such proceeding or assessment contemplated by any g
similar proceeding or special assessment, affecting the Property, nor to Owner's best
authority. overnmental
M Owner holds valid fee simple and marketable title to the Property (subject to the
Permitted Exceptions), has done nothing to impair such title to the entire interest in the
Property as Owner received, and will warrant and defend the title against the lawful claims of
all persons claiming by, under, or through Owner.

(g) In the event this Option is exercised, occupancy and possession of the Property
shall be delivered to the Tenant at the commencement of the Term of the Lease free and clear
of (i) adverse parties in possession, 00 leases in effect covering the Property and (iii) deed or
other restrictions on the Property except for covenants and restrictions as are of record as of
the Effective Date and disclosed on Tenant's title commitment respecting the Property.
(h) To the best of Owner's knowledge, Owner has complied with all federal, state and
local laws, rules and regulations relating to the Property.
(i) Access to the Property is by non-exclusive easement that is shared by Owner and
other landowners whose tracts adjoin the easement or otherwise depend on it for access to the
public road. To the best knowledge and belief of Owner, there is no pending or threatened
governmental proceeding which would impair or result in the limitation or termination of
such access;
G) Owner has not stored any hazardous substance or toxic waste on, in or under the
Property or permitted the Property to be used for the storage, release or discharge of any of
the same. To the best of Owner's knowledge, there has been no storage, release or discharge
of any hazardous substance or toxic material on, in or under the Property or the location of
any underground storage tank, landfill or dumping ground on, in or under or related to the
Property. Owner has no knowledge of the assertion of any environmental problem or
proceeding with respect to the Property by any governmental agency, authority or
instrumentality. To the best of Owner's knowledge, there has been no assertion of any
environmental problem or proceeding with respect to any adjoining property by any
s
governmental agency, authority or instrumentality. Owner shall indemnify and hold Tenant
harmless from any cot, loss or liability incurred with respect to any hazardous substance,
toxic material, underground storage tank, landfill or dumping ground being found on, in or
under the Property which results from any occurrence to the commencement of the Lease not
caused by Tenant or by Tenant's agents, employees or contractors.
(k) Except as specifically provided for herein, Owner has received the consent or
approval of any outside person or entity (including, but not limited to, governmental agencies
or authorities) that is required with respect to the execution and delivery of this Agreement or
the Lease by Owner or the consummation by Owner of the transaction contemplated hereby
or the performance by Owner of its obligations hereunder.
(1) OWNER REPRESENTS THAT THE PROPERTY WILL CONVEY IN "AS IS
WHERE IS" CONDITION WITH ALL FAULTS, AND THAT OWNER MAKES NO
REPRESENTATION OR WARRANTY WHATSOEVER, WHETHER EXPRESS,
IMPLIED, OR ARISING BY OPERATION OF LAW, WITH RESPECT TO THE
PROPERTY OR ANY PORTION, ASPECT, OR COMPONENT THEREOF, AND
EXPRESSLY DISCLAIMS THE SAME. LIKEWISE, OWNER MAKES NO
REPRESENTATION OR WARRANTY WHATSOEVER, WHETHER EXPRESS,
IMPLIED, OR ARISING BY OPERATION OF LAW, WITH RESPECT TO ANY
DOCUMENTS, REPORTS, OR MATERIALS PROVIDED OR MADE AVAILABLE TO
PURCHASER BY OWNER OR ITS AGENTS, OR THE ACCURACY OF THE
INFORMATION CONTAINED THEREIN, AND EXPRESSLY DISCLAIMS THE SAME.

THE
ING
LAIMERS
CLUDE
MATTERS OFTITDE,C SURVEY, FINANCIABUpEp NOT LIMITED TO,
CONDITION (INCLUDING WITHOUT LIMITATION ENVIRONMENTAL CONDIT AN
OR PRESENCE OR ABSENCE OF HAZARDOUS SUBSTANCES), ZONING, TAX
STATUS OR CONSEQUENCES, URPOSE OR USE,
FITNESS FOR A PARTICULAR P
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS, ACCESS TO THE
PROPERTY, AND AVAILABILITY OF UTILITIES.
g. Representations and W
as follows: arranties oftenant. Tenant represents and warrants unto Owner
(a) Tenant has full power and authority to execute, deliver and carry out the terms
and provisions of this Agreement. This Agreement has been duly executed and delivered by
Tenant and (upon execution and delivery by Owner) constitutes the legal, valid and binding
obligation of Tenant, enforceable against it in accordance with (lie terms hereof, subject as to
enforceability of remedies to limitations imposed by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the enforcement of creditors' rights
generally and general principles of equity.
(b) Except as specifically provided for herein, no consent or approval of any outside
person or entity (including, but not limited to governmental agencies or authorities) is
required with respect to the execution and delivery of this Agreement or the Lease by Tenant
or the consummation by Tenant of the transaction contemplated hereby of the performance
by Tenant of its obligations hereunder.
(c) Tenant shall be responsible for and promptly pay before default any personal
property taxes or special assessments, if any, that may be levied or assessed against any
improvements, or other personal property, s
intention of the part ituated on the Property, it being the mutual
ies that Owner shall not be required to pay any taxes on personal property
by reason of permitting Tenant to enter this Agreement or any resulting Lease. Tenant also
agrees to indemnify Owner against any loss or liability resulting from any and all claims or
liens in connection with such taxes and assessments.
9• Memorandum of O lion. The parties hereto agree to enter into a short form
memorandum of Option for the purpose of recording the same in the Bertie County, North
Carolina Public Registry or other applicable recording office. Tenant shall bear the cost of
preparing and recording said Memorandum of Option.
1 No Waste. During the Option Period, Owner shall commit no waste upon the Property.
I1. Default/Remedies
t/Remedies
(a) In the event of a breach of this Option by Owner, Tenant shall have the option, as
its remedy hereunder, either (a) to terminate this Option and receive a return of its Option
Fee, in which event neither party shall have any further obligation to the other hereunder
except for the indemnification obligations of Paragraph 6 and Paragraph 14; or (b) to demand
and sue for specific performance by Owner of its obligations hereunder.

(b) In the event of a breach of this Option by Tenant, Owner may,
addition to and cumulatively of any other rights Owner may have at law or in equity or under
this Option, (a) cure the Tenant Default on Tenant's behalf, in which event Tenant shall
reimburse Owner on demand for all suns so expended by Owner, (b) terminate this Option
and retain the Option Fee by notice to Tenant and in conformity with procedures required
hereby and by applicable law, or (c) enforce, by all proper and legal suits and other means, its
rights hereunder, including the collection of sums due hereunder, in which event Owner shall
have all remedies available at law or in equity, and should it be necessary for Owner to take
any legal action in connection with such enforcement, Tenant shall pay Owner all reasonable
attorneys' fees and expenses so incurred, all without prejudice to any remedies that might
Otherwise be used by Owner for recovery or anearages of sums due hereunder, damages as
herein provided, or breach of covenant
12.
(a) As soon as possible after the date hereof, Owner shall deliver to Tenant (or
otherwise make available to Tenant for copying) copies of all surveys, engineering studies,
site plans, development plans, building plans, special use permits, zoning infornation, water
and sewer permits and tap-ons, and related data, licenses, permits and information with
respect to the Property, if any, which may be owned by and readily available to Owner at no
cost or expense other than reasonable reproduction charges.
13. Notice. Any notice required to be given hereunder shall be in writing and shall be
deemed to have been duly delivered as of.(i) the dale and time the same is either delivered
Personally or by email, unless such delivery is made (a) on a day that is not a business day in the
place of receipt or (b) after 5:00 p.m. local time on a business day in the place of receipt, in
either of which cases such delivery will be deemed to be made on the next succeeding business
day, (it) on the next business day after timely delivery to a reputable overnight courier, or
(iii) deposited, postage prepaid, in the United States mail, to be mailed by registered or certified
mail, return receipt requested, addressed to the party to whom the same is directed at the
following addresses:
If to Tenant: SunEnergyl, LLC
192 Raceway Drive
Mooresville, NC 28117
Attention: Kenny I-labul, President
Email: kenny@sunenergyl,com
With a copy to: SunEnergyl, LLC
192 Raceway Drive
Mooresville, NC 28117
Attention: Bill Long
Email: [e-mail]

If to Owner: Town of Windsor
c/o Allen Castellor
P. 0. Box 509
128 South King Street
Windsor, NC 27983
Bertie County
C/O John Ed Whitehurst
Interim County Manager
P. 0. Box 530
106 Dundee Street
Windsor, NC 27983
With a copy to: M. Braxton Gillam, III
Attorney for the Town of Windsor
P. O. Box 547
Windsor, NC 27983
Jonathan E. Huddleston
Attorney for Bertie County
P. 0. Drawer 100
Windsor, NC 27983
14. Brokerage. Tenant and Owner warrant and represent to each other that no real estate
agents' commissions, binders, fees or other like charges are due and owing or, to the best of the
knowledge and belief of either of them, are claimed or asserted by any person, firm or
corporation in connection with this Option and any subsequent leasing of the Property. Each
party agrees to hold the other harmless from and against any expense (including court costs and
attomey's fees) resulting from any such claim which is based upon any dealings by any third
Party with the indemnifying party.
15. Survival. The provisions of this Agreement shall survive the expiration or any other
termination of this Agreement for a period of 12 months. In the event the Option is exercised
and the Lease is executed, the provisions of this Agreement shall not survive and the provisions
of the Lease shall control.
16. Assignment. This Agreement may be assigned by Tenant without the consent of Owner
to (a) any entity which controls, is controlled by or under common control with Tenant; (b) any
entity resulting from the merger or consolidation of Tenant; (c) any person or entity which
acquires all of the assets of Tenant as a going concern of the business that is being conducted on
the Site, provided that said transferee assumes all of the obligations of Tenant under the Ground
Lease; provided, however, Tenant shall notify Owner in writing of any such Assignment.
17. General Provisions.
(a) No Waiver. No failure of either party to exercise any power given hereunder or to
insist upon strict compliance with any obligation specified herein, and no custom or practice

at variance with the terms hereof, shall constitute a waiver of either party's right to demand
exact compliance with the terns hereof.
(b) Entire Aereetnent. This Agreement contains the entire agreement of the parties
hereto, and no representations, inducements, promises or agreements, oral or otherwise,
between the patties not embodied herein shall be of any force or effect. This does not include
additional Agreements needed for Interconnection with Town of Windsor Electric System.
(c) Amendment. No amendment to this Agreement shall be binding upon any of the
patties hereto unless such amendment is in writing and executed by all parties hereto.
(d) Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective administrators,
executors, personal representatives, successors and assigns.
(e) Cour emgds• Signatures,
This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, but all of which taken together shall
constitute one and the same agreement.
(fl Headings etc The headings inserted at the beginning of each paragraph are for
convenience only, and do not add to or subtract from the meaning of the contents of each
paragraph.
(9) Severability. If any terns or provision of this Option to Lease Agreement is, to any
extent, determined by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Option to Lease Agreement shall not be affected thereby, and each
remaining tern and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this Option to Lease Agreement to
be executed under seal as of the date first above written.
TENANT
SUNENERGY1, LLC
EY• lliam I In
Long g(/ (SEAL)
WiA.
Vice President

ATTEST:
ATTEST:
nn.,l n
Clerk to the Board of Commissioners
STATE OF NORTH CAROLINA
COUNTY OF j e
OWNER
TOWN OF WINDSOR
By: haA EAL)
James F. Hoggar , ayor
OWNER
BERTIE COUNTY
By: a
J. Wallace P y, Chairman
Bertie County Board of Commissioners
I, �t4ne uJ•i„1nIDUr a Notary Public, do hereby certify that William A.
Long personally appeared before me t
foregoing instrument. his day and acknowledged the due execution of the
Witness my hand and official seal this the Qeday of SQ 2013,
F
Notary Public (Official Seal)
My Commission Expires:
STATE OF NORTH CAROLINA
COUNTY OF BERTIE
I, " �Qn q— 4), 4 4 n n t , a Notary Public, do hereby certify that L. Allen
Castelloe personally appeared before me this day and acknowledged that he is the Clerk for the
Town of Windsor, a political subdivision of the State of North Carolina, and that by authority
duly given and as the act of the Board of Commissioners of the Town of Windsor, the foregoing
instrument was signed in its name by its Mayor, sealed with its seal and attested by L. Allen
CaVelle as Town Clerk.
my hand and official seal this the L:day of 0 d 0 b Q.r , 2013.
rvorary Public U
My Commission Expires: ' 19 (Official Sea[)

STATE OF NORTH CAROLINA
COUNTY OF BERTIE
I' JI `Q—K ) , a Notary Public, do hereby certify that jo arayi u,Ed i
�64ntehvrst personally appeared before me this day and acknowledged that he is the Clerk to the
Board of Commissioners of Bertie County, a political subdivision of the State of North Carolina,
and that by authority duly given and as the act of the Board of Commissioners of Bertie County,
the foregoing instrument was signed in its name by its Chairman, sealed with its sea] and attested
by rtelrorst as Clerk to the Board of Commissioners of Bertie County.
a'rah Screaril
My hand and officc,��'al seal this the day o
A n f 10 �— 2013.
Notary Public
My Commission Exoi es. , i ,4 'J,A� (Official Seal)

EXHIBIT A
Legal Description of the Property
Located in Bertie County, North Carolina, and more particularly described as follows:
Tract C, containing 20.97 acres, more or less, and Tract D, containing 31.21 acres, more or less,
as shown on the map entitled "Survey For County of Bertie," dated June, 2003, and prepared by
Hobbs Upchurch & Associates, P.A., Consulting Engineers and Surveyors, which map is of
record in Plat Cabinet B, page 466, in the office of the Register of Deeds of Bertie County and is
incorporated herein by reference.
The particular acreage leased will be described in a new survey. Legal descriptions pulled from
the new survey will replace the above paragraph in the final Ground Lease and Easement
Document as well as this Option Document.

Attachment 6
EPC Agreement for Bethel Price Solar without Exhibits &
Schedules
Confidential Information

Conf4en4ia
Execution Copy
ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT
Dated as of October 11, 2013
by and between
Bethel Price Solar, LLC
and
SunEnergyl, LLC
CONFIDENTIAL

TABLE OF CONTENTS
1.
Definitions......:.....................................................................................................................I
1.1
Certain Definitions...................................................................................................1
1.2
Other References......................................................................................................8
2.
Scope....................................................................................................................................9
3.
Representatives..................................................................................................................10
3.1
Owner Representative
............................................................ ................................10
3.2
Contractor Representative
3.3
......................................................................................10
Limited Authority
..................................................................................................10
4.
Subcontracting...................................................................................................................10
4.1
Major Subcontractors
4.2
.............................................................................................10
Subcontracts...........................................................................................................11
4.3
Liability for Subcontractors...................................................................................11
4.4
Payments................................................................................................................11
5.
Contractor Responsibilities
................................................................................................12
5.1
Standards of Performance
......................................................................................12
5.2
Sufficient Personnel
5.3
...............................................................................................12
Labor
......................................................................................................................12
5.4
Construction Plans.................................................................................................12
5.5
Health Safety
5.6
and ...................................................................................................12
Training of Owner's Personnel
..............................................................................12
5.7
Utility Use
..............................................................................................................13
5.8
Spare Parts
.............................................................................................................13
5.9
Technical Documents to be Delivered by Contractor............................................13
5.10
Record Drawings
...................................................................................................13
5.11
Interconnection
......................................................................................................13
5.12
Cooperation
............................................................................................................13
5.13
Compliance with Laws
5.14
..........................................................................................13
Permits
..................................................................................................... ........14
5.15
Reports and Meetings
............................................................................................14
5.16
Equipment..............................................................................................................15
5.17
Screening Measures
5.18
...............................................................................................15
Protective Measures
...............................................................................................16
6.
Owner Responsibilities
......................................................................................................18
6.1
Access
6.2
....................................................................................................................19
Compliance with Laws
..........................................................................................19
6.3
Site Inspection
6.4
........................................................................................................19
Inspection...............................................................................................................19
7.
Commencement of Work
...................................................................................................19
7.1
Issuance of Notice to Proceed
................................................................................19
CONFIDENTIAL

7.2 Owner Obligations.................................................................................................20
8. Commercial Delivery of Power.........................................................................................20
8.1
Conditions
..............................................................................................................20
8.2
Control; Operations
................................................................................................21
9.
Performance Testing
..........................................................................................................21
9.1
Performance Tests
9.2
..................................................................................................21
Performance Guarantee
9.3
..........................................................................................21
Satisfaction of Performance Tests
.........................................................................21
10.
Substantial Completion
......................................................................................................22
10.1
Substantial Completion
10.2
..........................................................................................22
Certificate of Substantial Completion
....................................................................23
10.3
Substantial Completion Date
.................................................................................23
10.4
Acceptance
.............................................................................................................24
11.
Final
Completion...............................................................................................................24
11.1
Final Completion...................................................................................................24
11.2
Certificate of Final Completion
11.3
.............................................................................25
Final Completion Date
11.4
...........................................................................................25
Acceptance
.............................................................................................................25
12.
Liquidated Damages
..........................................................................................................25
12.1
Commercial Delivery of Power Delay Liquidated Damages................................25
12.2
Reserved
.................................................................................................................26
12.3
Reserved.................................................................................................................26
12.4
Payment of Delay LDs...........................................................................................26
12.5
Delay LDs Cap
.......................................................................................................26
13.
Title;
Risk of Loss.................................................................................................
13.1
Title
........................................................................................................................26
13.2
Contractor Risk of Loss
13.3
.........................................................................................27
Owner Risk of Loss
13.4
...............................................................................................27
Contractor Tools
....................................................................................................27
14.
Changes and Extra Work
...................................................................................................27
14.1
Changes..................................................................................................................27
14.2
Proposal and Change Orders
..................................................................................28
14.3
Performance of Changes........................................................................................28
14.4
Contractor Proposed Changes
................................................................................28
15.
Force
Majeure....................................................................................................................28
15.1
Force Majeure
15.2
........................................................................................................28
Project Agreements................................................................................................29
16.
Events of Default
...............................................................................................................29
16.1
Contractor Events of Default
.................................................................................29
CONFIDENMAL ii

16.2
Certain Owner Remedies
16.3
.......................................................................................30
Additional Owner Remedies
16.4
..................................................................................31
Cumulative
16.5
Remedies .................................................
Owner Events of Default
...........................................31
16.6
.......................................................................................3
Contractor Remedies
l
..............................................................................................31
17.
Intellectual
Property...........................................................................................................32
17.1
Ownership of Rights in Documentation
17.2
................................................................32
Ownership Invention
17.3
of Rights..............................................................................32
License
...................................................................................................................32
18.
Contract Price.....................................................................................................................32
18.1
Amount
18.2
..................................................................................................................32
Fixed Price
.............................................................................................................32
19.
Invoicing and Payment........................................................................
..............................32
19.1
Milestones.......................................
19.2
..........................
Invoices; Lien Waivers and Releases
.............................................32
19.3
....................................................................33
Payments
19.4
................................................................................................................33
Final Invoice
19.5
..........................................................................................................33
Set Off
19.6
....................................................................................................................33
No Acceptance by Payment
...................................................................................34
20.
Suspension of the Work
.....................................................................................................34
20.1
By Owner...............................................................................................................34
20.2
By Contractor.........................................................................................................34
20.3
Resumption of Work
..............................................................................................34
21.
Taxes
..................................................................................................................................34
21.1
Employment Taxes
21.2
................................................................................................34
Sales and Use Taxes on Contractor Tools
21.3
......................
Sales and Use Tax on Equipment and Materials
.......................34
21.4
............................
Other Contractor Taxes
21.5
..........................................................................................35
Owner Taxes
..............................................................
................................. ...........35
22.
Representations and Warranties; Cooperation
...................................................................35
22.1
Representations and Warranties of Contractor
22.2
......................................................35
Representations and Warranties of Owner
22.3
............................................................36
Cooperation
........................................................ .......................................
.............37
23.
Warranty.............................................................................
...............................................37
23.1
Contractor System Warranty
..................................................................................37
23.2
System Warranty Work
23.3
..........................................................................................38
Warranty Exceptions
..............................................................................................38
23.4
Reserved
23.5
.................................................................................................................39
Intellectual Property...............................................................................................39
23.6
Documentation
.......................................................................................................39
CONFIDENTIAL
iii

24.
26.
27
23.7 Title .....................................................
23.8 Operation of the System.........................................................................................39
23.9 Disclaimer..............................................................................................................40
Insurance............................................................................................................................40
24.1 Coverages...............................................................................................................40
24.2 Additional Coverages.............................................................................................40
24.3 Policy Requirements..............................................................................................40
24.4 Certificates and Notice...........................................................................................41
24.5 No Limitation.........................................................................................................41
Indemnity...........................................................................................................................41
25.1 Contractor Indemnity............................................................................................41
25.2 Contractor Environmental Indemnity....................................................................41
25.3 Proprietary Rights Indemnity.................................................................................42
25.4 Owner Indemnity...................................................................................................43
25.5 Owner Environmental Indemnity..........................................................................43
25.6 Indemnity Procedures............................................................................................43
Limitationof Liability........................................................................................................44
26.1 No Consequential Damages...................................................................................44
26.2 Maximum Total Liability.......................................................................................44
Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. .. ..................................... 44
27.1 Governing Law ...............................................................
.......................................44
2727.2 Consent to Jurisdiction...........................................................................................44
.3 Certain Waivers.....................................................................................................45
27.4 Service of Process..................................................................................................45
27.5 Waiver of Jury Trial...............................................................................................45
28. Liens...................................................................................................................................45
28.1 Liens................................................................ 45
.............................................
28.2 Discharge or Bond..................................................................................................45
29. Waiver................................................................................................................................45
30. Dispute Resolution............................................................................................46
30.1 Good Faith Negotiations........................................................................................46
30.2 Right to Pursue Other Resolution ............................................. 46
30.3 Continued Performance..................................................................
31. Notices and Demands........................................................................................................46
32. Nondisclosure; Publicity....................................................................................................47
33. Time of Essence.................................................................................................................48
34. Validity..............................................................................................................................48
35. Survival..................................................................................... ..........48
CONFIDENTIAL iv

36. Binding Effect ....................................................................................................................
37- No Oral
48
Modifications .......................................................................................................
38- Joint Drafting 48
39. Counterparts 48
40. Announcements
and Publications 48
41. Entire Agreement
49
42. No Agency 49
49
43. Priority of Documents ............ I ...............................
I ............................ 11 ............................. 49
44. Assignment . .......................................................................................................................
49
Schedule
Schedule IA -
Construction Schedule
Schedule I B -
Performance Tests
Schedule I C .
Scope of Work
Schedule I D -
Form of Change Order
Schedule I E -
Schedule of Values
Schedule IF -
Time and Materials Rate Schedule
Schedule 4.1 -
Major Subcontractors
Schedule 4.2 -
Major Subcontractor Warranties
Schedule 5.1 -
Schedule 5.4
Technical Specifications/Product Data Sheet and Bill of Materials
-
Schedule 5.5 -
Construction Plans
Project Safety Manual
Schedule 5.6 -
Training Course Agenda Outline
Schedule 5.8 .
Spare Parts List
Schedule 5.14 -
Permits
Schedule23 -
[reserved]
Schedule 24 -
Insurance
Schedule 25 -
Owner Equipment
Schedule 26 -
Cost Breakdown
Exhibits
Exhibit I -
Description of Site
Exhibit 2 -
Form of Notice to Proceed
Exhibit 3 -
Exhibit 4
Form of Weekly Progress Report
-
Exhibit 5
Form of Certificate of Substantial Corn letion
p
-
Exhibit 6
Form of Certificate o f Final Completion
-
Exhibit 7 -
Form of Conditional Waiver and Release (Progress Payment)
Form of Unconditional Waiver
Exhibit 8 -
Exhibit 9 -
and Release (Progress Payment)
Form of Conditional Waiver and Release (Final Completion)
Exhibit 10 -
Form Unconditional Waiver and Release (Final Completion)
Example of High Voltage Sign
CONFIDENTIAL

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT
This ENGINEERING, PROCUREMENT AND CONSTRUCTION
AGREEMENT (this "Agreement'), dated as of October 11, 2013 (the "Effective Date"), is by
and between Bethel Price Solar, LLC, a Delaware limited liability company ("Owner"), and
SunEnergyl, LLC, a North Carolina limited liability company ("Contractor"). (Owner and
Contractor are sometimes referred to herein each as a "Part ' and collectively as the "Parties").
RECITALS
WHEREAS, Owner has entered into (or, as applicable, is anticipated to enter into
shortly) the following agreements relating to its proposed development, ownership and operation
of a 7 megawatt ("MW") (dc) solar photovoltaic ("PV") electric generating facility (the
"System") to be located at a site in Pitt County, Bethel, North Carolina as more specifically
identified in Exhibit 1 hereto (the "Site"): (1) a Power Purchase Agreement with Virginia
Electric and Power Company, doing business as Dominion North Carolina Power (the "PPA");
(2) one or more Ground Lease and Easement Agreements, as applicable, with the various Site
owners (collectively the "Ground Lease"); and (3) an Interconnection Agreement with Virginia
Electric and Power Company, doing business as Dominion North Carolina Power (the
"Interconnection Agreement") (collectively, the "Project Agreements');
WHEREAS, Contractor obtains permits for, develops, engineers, designs,
Procures, constructs and installs ground -mounted solar PV electric generating systems and as
such is able to permit, develop, engineer, design, construct and install the System;
WHEREAS, Owner desires to engage Contractor to obtain permits for, develop,
engineer, design, supply, construct and install the System at the Site and interconnect the System
to the Transmission Provider, in accordance with the Interconnection Agreement; and
WHEREAS, subject to the terms and conditions of this Agreement, Contractor
desires to provide to Owner such permitting, development, engineering, design, supply and
installation and interconnection services.
NOW THEREFORE, in consideration of the mutual promises set forth below, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
AGREEMENT
1. Definitions.
1.1 Certain Definitions. As used in this Agreement, the following terms have
the following meanings:
"Affiliate" means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with, such Person. For the purposes of this
definition, "control" (including with correlative meanings, the terms "controlling," "controlled
by" and "under common control with"), as applied to any Person, means the possession, directly

or indirectly through one or more intermediaries, of the power to either (a) elect a majority of the
directors (or Persons with equivalent management power) of such Person or (b) direct or cause
the direction of the management or policies of such Person, whether through the ownership of
securities or partnership, membership or other ownership interests, by contract, by operation of
law or otherwise.
"Agreement" has the meaning given to such term in the preamble.
"Applicable IA Provisions" means Sections 1.5.4, 1.6, 1.8 and 2.1.1 of the
Interconnection Agreement and Appendix 3, Appendix 4 (solely with respect to Milestones 7 and
8 set forth therein) and Appendix 5 of the Interconnection Agreement; provided, however, that
Section 1.6 and Appendix 5 of the Interconnection Agreement shall only be applicable until the
Substantial Completion Date.
"Applicable Law" means, for any Person, any constitution, code, statute, law,
regulation, ordinance, rule, judgment, order, decree, permit, concession, grant, franchise, license,
agreement, directive, guideline, treaty, policy or requirement of, or other governmental
restriction or any similar form of decision of or determination by, or any interpretation or
administration of any of the foregoing, by any Governmental Authority to which the Person or
any of its business is subject.
"Applicable Permits" means any license, authorization, certification, filing,
recording, permit or other approval, including any environmental, construction or operating
permit, that is required by Applicable Law to be obtained by Contractor in connection with the
performance of the Work, including the operation by Contractor to the extent contemplated by
this Agreement of the System prior to Substantial Completion, which licenses, authorizations,
certifications, filings, recordings, permits or other approvals are listed in Schedule 5.14 and not
identified therein as the responsibility of Owner.
"Assigned Warranties" has the meaning given to such term in Section 4.2.
"Business Dav" means a day other than Saturday, Sunday or any day on which
banks located in New York, New York are authorized or obligated to close.
"Certificate of Final Completion" means a certificate issued by Contractor and
countersigned by Owner in substantially the form thereof attached hereto as Exhibit 5 which
shall evidence Owner's acknowledgement that Final Completion has occurred.
"Certificate of Substantial Completion" means a certificate issued by Contractor
and countersigned by Owner in substantially the form thereof attached hereto as Exhibit 4, which
shall evidence Owner's acknowledgement that Substantial Completion has occurred.
"Change" has the meaning given to such term in Section 14.1.
"Change in Applicable Law" means (a) any binding change after the Effective
Date in the judicial or administrative interpretation of, or adoption after the Effective Date of,
any Applicable Laws (excluding any Applicable Laws relating to net income taxes and excluding
any Applicable Laws relating to the organization, existence, good standing, qualification, or
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licensing of Contractor or its Affiliates or Subcontractors in any jurisdiction), which is
inconsistent or at variance with any Applicable Laws in effect on the Effective Date or (b) the
imposition after the Effective Date of any condition or requirement (except for any conditions or
requirements which result from the acts or omissions of Contractor or any Subcontractor) not
required as of the Effective Date affecting the issuance, renewal or extension of any Applicable
Permits (excluding any Applicable Permits relating to the organization, existence, good standing,
qualification, or licensing of Contractor or its Subcontractors in any jurisdiction).
"Change Order" means a written document in the form of Schedule I D issued by
a Party after the Effective Date authorizing a Change, and, if applicable, setting forth any
revisions to this Agreement necessary to effect the Change, including an adjustment of the
Contract Price or Construction Schedule.
Section 8.1. "Commercial Delivery of Power" has the meaning given to such term in
"Construction Schedule" means the schedule for the Work to be completed for the
System, as set forth on Schedule IA, as modified from time to time in accordance with the terms
of this Agreement.
"Contract Documents" means this Agreement, the Exhibits and Schedules hereto,
and the Documentation.
"Contract Price" has the meaning given to such term in Section 18.1.
"Contractor' has the meaning given to such term in the preamble.
"Contractor Indemnitees" has the meaning given to such tern in Section 25.4.
"Contractor's Representative" means the individual designated by Contractor in
accordance with Section 3.2.
"DAS" means data acquisition system.
"Default Rate" means an interest rate per annum equal to the lower of (a) the rate
published by the Wall Street Journal as the "prime rate" on the date on which such interest
begins to accrue plus two percent (2%) and (b) the maximum rate permitted under Applicable
Law.
"Delay Liquidated Damages" or "Delay LDs" has the meaning given to such
term in Section 12.1.
"Disclosing Party" has the meaning given to such tern in Article 32.
"Dispute" has the meaning given to such term in Article 30.
"Documentation" means all materials in printed or electronic format that are or
are to be delivered hereunder or otherwise agreed by the Parties to be delivered by Contractor to
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Owner, including all construction plans, specifications, schedules, schematics, owner's manuals,
operator's manuals, equipment and software manuals, non-proprietary electrical system loss
calculations, non-proprietary wind load engineering calculations, drawings (including "as built"
drawings of buildings, structures, plant operating equipment and ancillary plant equipment),
reports and test data and results. A non-exclusive list of Documentation, including the date by
which each such item of Documentation is to be delivered by Contractor, is set forth on Schedule
1 C.
"Dollar" and "Y" means the lawful currency of the United States of America.
"Effective Date" has the meaning given to such term in the preamble.
"Environmental Law" means any Applicable Law relating to pollution or
protection of the environment and human health, including the Hazardous Materials
Transportation Act, 49 U.S.C. §1471 et seq.; the Toxics Substances Control Act, 15 U.S.C.
§§2601 through 2629; the Clean Air Act, 42 U.S.C. §7401, et seq., the Resource Conservation
and Recovery Act, 42 U.S.C. §6901 et seq., the Federal Water Pollution Control Act, 33 U.S.C.
§1251 et seq., the Safe Drinking Water Act, 42 U.S.C. §300f, et seq., the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq., the Oil
Pollution Act, 33 U.S.C. § 2701, et seq., and the Emergency Planning and Community Right -to -
Know Act, 42 U.S.C. § 11001, et seq.
"Equipment" means (a) any and all materials, supplies, apparatus, machinery,
equipment, parts, tools, components, instruments, appliances, spare parts and appurtenances
thereto that are required for prudent design, construction or operation of the System in
accordance with Industry Standards and (b) any and all materials, supplies, apparatus,
machinery, equipment, parts, tools, components, instruments, appliances, spare parts and
appurtenances thereto described in, required by, reasonably inferable from or incidental to the
Work or the Contract Documents. As used herein, "Equipment" expressly excludes (i) the
Owner Equipment and (ii) any equipment, tools or supplies of Contractor or its Subcontractors
that is not intended to be incorporated into or installed as a permanent part of the System.
"Final Completion" means that the System shall have achieved all of the
conditions set forth in Section I L L
"Force Maieure Event" means, when used in connection with the performance of
a Party's obligations under this Agreement, any act or event (to the extent not caused by the fault
or negligence of such Party or any of its Subcontractors or any Affiliates of such Party or any of
its or their agents or employees) which is unforeseeable, or being foreseeable, unavoidable and
outside the reasonable control of the Party which invokes it, and which renders said Party unable
to comply totally or partially with its obligations under this Agreement (other than payment
obligations). Subject to compliance with the foregoing, examples of Force Majeure Events
include, but are not limited to:
(a) war, riot, acts of a public enemy or other civil disturbance;
(b) acts of God, including storms, floods, lightning, earthquakes, hailstones,
ice storms, tornados, tsunamis, typhoons, hurricanes, landslides, volcanic
CONFIDENTIAL 4

eruptions, range or forest fires, and objects striking the earth from space
(such as meteorites), sabotage or destruction by a third party (other than
any Person employed or retained by or on behalf of the Party) of facilities
and equipment relating to the performance by the affected Party of its
obligations under this Agreement;
(c) strikes, walkouts, lockouts or similar industrial or labor actions or
disputes, but excluding any of the foregoing involving only employees of
Contractor or any Subcontractor;
(d) acts or inaction of any Governmental Authority (including the
Transmission Provider), including the suspension, termination,
interruption, denial, delay in obtaining or failure of renewal or issuance of
any approval of any Governmental Authority relating in any way to the
Applicable Permits, Work or operation of the System;
(e) any latent defect in or failure of Owner Equipment, provided that only the
Contractor shall be entitled to claim a Force Majeure Event as a result of
such defect; and
(f) a Change in Applicable Law, but only to the extent such Change in
Applicable Law prevents a Party from performing its material obligations
under this Agreement.
"Governmental Authority" means any domestic or foreign governmental or
regulatory authority, agency, court, commission, arbitration tribunal or other governmental or
regulatory entity (including an independent system operator or regional transmission operator).
"Ground Lease" has the meaning given to such term in the recitals.
"Guaranteed Substantial Completion Date" means March 31, 2014.
"Hazardous Material" means each substance designated as a hazardous waste,
hazardous substance, hazardous material, hazardous waste, special waste, radioactive material,
pollutant, contaminant, toxic substance or other compound, element or substance in any form as
designated with words of similar meaning and regulatory effect under any Environmental Law,
petroleum and petroleum products, derivatives, wastes or additives, polychlorinated biphenyls,
asbestos, and any other substance for which liability or standards of conduct may be imposed
under Environmental Law.
"Indemnified Party" has the meaning given to such term in Section 25.4.
"Indemnifying Party" has the meaning given to such term in Section 25.4.
"Industry Standards" means those practices, methods and standards of care,
safety, performance and diligence normally practiced or approved by a significant portion of
solar engineering, construction and installation firms experienced in the engineering,
procurement and construction of utility -scale ground -mounted solar PV power plants in
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performing services of a similar nature in the United States and are consistent with good
engineering, design, procurement and construction practices, Applicable Permits, Applicable
Laws and other standards established for such Work. Industry standards are not intended to be
limited to optimum standards, to the exclusion of others, but rather are intended to include a
range of acceptable standards generally accepted in the utility -scale ground -mounted solar PV
power plant engineering, procurement and construction industry.
"Infringement Claims" has the meaning given to such term in Section 25.3.
"Initial Spare Parts Inventory" has the meaning given to such term in Section 5.8.
"Interconnection Agreement" has the meaning given to such term in the recitals.
"Lien" means any lien, mortgage, pledge, encumbrance, charge, security interest,
defect in title, or other claim filed or asserted in connection with the System by or through
Contractor, a Subcontractor or any other third party under the control or supervision of
Contractor or any Subcontractor against the System, the Site, the Equipment or any other
structure or equipment at the Site.
"Losses" has the meaning given to such term in Section 25.1.
"Major Subcontractors" has the meaning given to such term in Section 4.1.
"MW" has the meaning given to such term in the recitals.
"Notice to Proceed" means the written notice given by Owner to Contractor in the
form of Exhibit 2 directing Contractor to commence performance of the Work in accordance
with Schedule IA.
"Owner" has the meaning given to such term in the preamble.
"Owner Equipment" means the equipment described in Schedule 25.
"Owner Indemnitee" has the meaning given to such term in Section 25.1.
"Owner's Representative" means the individual designated by Owner in
accordance with Section 3.1.
"Party" and "Parties" have the respective meanings given to such terms in the
preamble.
"Performance Guarantee" has the meaning given to such term in Section 9.2.
"Performance Tests" means the tests of the System, as more particularly described
in, and conducted in accordance with, Schedule IB, by which Contractor demonstrates that the
System meets the Performance Guarantee.
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"Person" means any individual, corporation, limited liability company,
partnership, company, joint venture, association, trust, unincorporated organization or
Governmental Authority.
"PPA" has the meaning given to such term in the recitals.
"Project Safety Manual" means the project safety manual applicable to
Contractor's performance of the Work and attached hereto as Schedule 5.5.
"Project Agreements" has the meaning given to such term in the recitals.
"Punch List" means the written list of items of Work (which Contractor prepares
and with which Owner agrees prior to Substantial Completion) that remain to be completed by
Contractor after Substantial Completion but prior to Final Completion and which shall not affect
the safety, reliability, operability or mechanical or electrical integrity of the System.
"PV" has the meaning given to such tern in the recitals.
"Receiving Party" has the meaning given to such term in Article 32.
"Remedial Acts" has the meaning given to such term in Section 25.3.
"Representatives" means, collectively, Contractor's Representative and Owner's
Representative.
"SCADA" means supervisory control and data acquisition system.
"Schedule of Values" means the breakdown and valuation of the Work on the
System for progress payment purposes as set forth on Schedule I E.
in Exhibit 1.
"Site" has the meaning given to such term in the recitals and as further described
"Spare Parts List" has the meaning given to such term in Section 5.8.
"Subcontract" means any contract, agreement, purchase order or other binding
commitment between Contractor and a Subcontractor or, as applicable, between two
Subcontractors, in each case with respect to any portion of the Work.
"Subcontractor" means any Person, such as a subcontractor, vendor or supplier,
that is retained by Contractor or any Person hired by Contractor or with a Person of any lower
tier (e.g., a second- or third -tier subcontractor) to perform any portion of the Work in furtherance
of Contractor's obligations under this Agreement, including any Major Subcontractor or any
Supplier.
"Substantial Completion" means that the System shall have achieved all of the
conditions set forth in Section 10.1.
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"Substantial Completion Date" means the actual date on which Substantial
Completion occurs in accordance with Article 10.
"Suppliers" means those Equipment suppliers or vendors with which Contractor
contracts to build the System.
"System" has the meaning given to such term in the recitals and as listed and
described more fully in Schedules I and 5_I . For the avoidance of doubt, the System includes
the Owner Equipment and all permanent works at the Site contemplated by the Scope of Work,
including drainage systems and roads.
"Transmission Provider" means Virginia Electric and Power Company, doing
business as Dominion North Carolina Power.
"Warranty" means the warranties made by Contractor with respect to the System
and the Documentation as set forth in Article 23.
"Work" means the Equipment and all services, labor, obligations, duties, and
responsibilities to be performed by Contractor under this Agreement in connection with, or
relating to, the System (or any component thereof, including the Equipment), including the items
described in Article 2, Article 5 and Schedule 1C.
1.2 Other References. As used in this Agreement, unless otherwise specified
or where the context otherwise requires:
(a) all references to "Articles" and "Sections" are to Articles and Sections of
this Agreement;
(b) all references to `Exhibits" and "Schedules" are to Exhibits and Schedules
attached to this Agreement, each of which is an integral part of this Agreement and made a part
of this Agreement for all purposes;
(c) references to any gender include all others if applicable in the context;
(d) terms defined in the singular shall have the corresponding meaning when
used in the plural and vice versa;
(e) all uses of"include" or "including" mean "without limitation";
(f) references to any agreement or contract are to such agreement or contract
as amended, modified or supplemented from time to time in accordance with the terms hereof
and thereof; provided that, all references to the Project Agreements (including any exhibits,
schedules and other attachments thereto) are to the Project Agreements as in effect immediately
prior to the Effective Date, and without giving effect to any amendment or modification thereof
or other variance therefrom on and after the Effective Date, unless any such amendment,
modification or other variance shall be expressly consented to in writing by Contractor (such
consent not to be unreasonably withheld or delayed);
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(g) any reference to any federal, state, local or foreign statute or law means
such statute or law as amended, supplemented, modified or replaced from time to time and also
refers to all applicable rules and regulations promulgated thereunder; provided, however, that
Contractor shall be entitled to propose a Change Order for a Change in Applicable Law, as
described in Section 14.4;
(h) the word "or" has the inclusive meaning represented by the phrase
"and/or";
(i) the words "this Agreement," "hereof," "hereunder," "herein," "hereby" or
words of similar import refer to this Agreement as a whole and not to a particular Article,
Section, subsection, clause, or other subdivision of this Agreement;
Q) any reference to a Person includes such Person's successors and permitted
assigns and any reference to a Governmental Authority includes any successor thereto;
(k) any definition in one part of speech of a word, such as definition of the
noun form of that word, shall have a comparable meaning when used in a different part of
speech, such as the verb form of that word;
(1) the headings of particular provisions of this Agreement are inserted for
convenience only and shall not be construed as a part of this Agreement or serve as a limitation
or expansion on the scope of any term or provision of this Agreement; and
(m) any provisions hereof including the words "written" or "in writing" means
hand-written, type -written, printed or electronically made and resulting in a permanent record.
2. Scope. Contractor shall (a) procure, provide and pay for, on a turnkey basis, all
items and services necessary for the proper execution and completion of the Work, whether
temporary or permanent and whether or not incorporated or to be incorporated into the System,
including all professional design and engineering services, development, Equipment
procurement (excluding the Owner Equipment, the procurement of which and delivery to the Site
is the sole responsibility of Owner, it being understood that Contractor is solely responsible for
custody, risk of loss and installation of the Owner Equipment), supervision, labor, materials,
equipment, tools, construction equipment and machinery, utilities, interconnections (in
accordance with the Interconnection Agreement), transportation, and procurement of the
Applicable Permits and all other items, facilities and services within the scope of the Work and
(b) perform, supervise, coordinate and direct the Work, including the development, permitting,
engineering, design, procurement, project management, construction, interconnection, testing,
start-up and commissioning of the System, in accordance with this Agreement and the
Applicable IA Provisions, including the general standards specified in Section 5.1 hereof. Work
not specifically delineated in this Article 2 or elsewhere in this Agreement shall be performed
and provided by Contractor to the extent customary or necessary to complete the System in
accordance with Industry Standards. Subject to Owner's approval to the extent expressly
required under this Agreement, Contractor shall have sole control over the engineering, design
and construction means, methods, techniques, sequences, and procedures and for coordination of
all portions of the Work under this Agreement. Contractor shall perform the Work in a manner
CONFIDENTIAL 9

reasonably expected to enable it to achieve Substantial Completion by the Guaranteed
Substantial Completion Date. Contractor shall promptly notify Owner in writing if any
milestone set forth on the Construction Schedule attached hereto as Schedule IA becomes likely
not to be met in accordance with such Schedule, which notice shall include a reasonably detailed
description of the corrective action to be taken by Contractor. Where this Agreement describes
the Work in general terms, but not in complete detail, it is understood and agreed that the Work
includes any incidental work or services which can be reasonably inferred as required or
necessary to construct and complete the System in accordance with the requirements of this
Agreement.
Representatives.
3.1 Owner Representative. Owner designates, and Contractor agrees to
accept, Tom McNay as Owner's "Representative" with respect to this Agreement and
Contractor's performance of the Work. Subject to Section 3.3, the actions taken by Owner's
Representative shall be deemed to be the acts of Owner and shall be fully binding upon Owner.
Owner may, upon the prior consent of Contractor (which consent shall not be unreasonably
withheld or delayed), change the designated Owner's Representative.
3.2 Contractor Representative. Contractor designates, and Owner agrees to
accept, Kenny Habul as Contractor's "Representative" with respect to this Agreement and
Contractor's performance of the Work. Subject to Section 3.3, the actions taken by Contractor's
Representative shall be deemed the acts of Contractor and shall be fully binding upon
Contractor. Contractor may, upon the prior consent of Owner (which consent shall not be
unreasonably withheld or delayed), change the designated Contractor's Representative.
3.3 Limited Authority. Notwithstanding Sections 3.1 and 3_2, except as
otherwise expressly set forth in this Agreement, a Representative shall have no power or
authority on behalf of a Party to give, enter into, consent to or execute any amendments, Change
Orders, waivers, notices, consents or other non -routine communications on behalf of a Party
hereunder.
4. Subcontracting.
4.1 Major Subcontractors. The Parties have agreed upon the list of approved
Subcontractors in Schedule 4.1 (collectively, the "Major Subcontractors"), each of which is
providing (a) solar panel modules, inverters, racking systems, trackers or monitoring systems or
(b) services, materials, equipment, supplies or any other Work, the cost of which is in excess of
per Subcontract, provided that any and all Subcontracts with the same Subcontractor
shall be aggregated for purposes of clause (b). The Parties have also agreed that Owner will
procure the Owner Equipment and deliver the Owner Equipment to the Site at its sole cost and
expense. Contractor shall have that portion of the Work identified in Schedule 4.1 provided or
performed by the Major Subcontractor for such Work, and Contractor shall not change or replace
any Major Subcontractor, or engage or retain any other Subcontractor meeting the criteria of
clause (a) or (b) of the preceding sentence, without the prior written approval of Owner, which
approval shall not be unreasonably withheld or delayed.
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4.2 Subcontracts. Excluding the Subcontract for the Owner Equipment, which
is the exclusive responsibility of Owner, each Subcontract, whether or not a counterparty thereto
is a Major Subcontractor, shall (a) be in writing and (b) include representations and warranties
that all Work furnished or delivered, and all materials and tools used on Site, by such
Subcontractor shall contain zero percent (0%) asbestos, refractory ceramic fibers, lead,
methylene chloride or polychlorinated biphenyls. In addition, with respect to the Subcontracts
with the Major Subcontractors providing solar panel modules, inverters, transformers, combiner
boxes, and racks, respectively, the terms of each such Subcontract shall permit the assignment by
Contractor to Owner, at any time upon notice and without any further consent of the Major
Subcontractor that is a party to such Subcontract, of the Assigned Warranty (as defined below)
provided thereunder. Further, to the extent that any such Subcontract requires the Major
Subcontractor that is the party thereto to indemnify Contractor, Contractor shall use reasonable
efforts to ensure that Owner and its Affiliates are expressly named as indemnitees with respect to
any such indemnification obligation. Effective as of the Final Completion Date, (x) Contractor
hereby assigns to Owner, and Owner hereby accepts, all of Contractor's right, title and interest in
and to each of the warranties of the Major Subcontractors, copies of which are set forth in
Schedule 4.2, in each case free and clear of any Liens (collectively, the "Assigned Warranties"),
and (y) Contractor hereby represents and warrants to Owner (which representation and warranty
shall survive the Final Completion Date until the second (2nd) anniversary thereof) that the copy
of each Assigned Warranty set forth in Schedule 4.2 is a true and accurate copy of such Assigned
Warranty as actually assigned to Owner on the Final Completion Date. Subject to the foregoing
sentence, Owner acknowledges and agrees that the foregoing assignment of the Assigned
Warranties on the Final Completion Date shall be without any other representation and warranty
of Contractor and, other than in respect of a breach of such representation and warranty, is
without recourse to Contractor.
4.3 Liability for Subcontractors. The approval by Owner of, or the execution
by Contractor of any Subcontract shall not relieve Contractor of any of its obligations under this
Agreement or relieve Contractor of its responsibility for any of the Work rendered or required to
be rendered by any such Subcontractor. Contractor shall at all times be responsible for the acts,
omissions, failures and faults of all Subcontractors as fully as if they were the acts, omissions,
failures and faults of Contractor (other than those covered under Assigned Warranties).
Contractor shall be responsible for performance of all the Work, whether performed by
Contractor or its Subcontractors. Nothing in this Agreement shall constitute any contractual
relationship between Owner and any Subcontractor, and Owner shall not undertake any
obligation to pay, or to be responsible for the payment of, any sums to any Subcontractor.
Contractor shall promptly pay when due all amounts payable to its Subcontractors for labor and
materials, including Equipment, furnished in the performance of this Agreement and shall ensure
that the System and the Site remain free of any Liens arising through Contractor or any of its
Subcontractors in accordance with Article 28.
4.4 Payments. Contractor shall promptly pay each Subcontractor the amount
to which such Subcontractor is entitled in accordance with its Subcontract. Contractor shall
promptly notify Owner of any dispute with, or claim by, any (a) single Subcontractor if such
claim exceeds $50,000 or (b) by all Subcontractors if such claims or disputes exceed $100,000 in
the aggregate.
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5. Contractor Responsibilities.
5.1 Standards of Performance. Contractor shall perform and complete the
Work in accordance with this Agreement (including Schedules 1C and 5.1), Industry Standards,
Applicable Laws, Applicable Permits, and, to the extent relevant to the Work, such that Owner
shall be in a position to satisfy its obligations thereunder relevant to the Work, the Project
Agreements . Contractor hereby confirms that Owner has provided Contractor with copies of
those portions of the Project Agreements (specifically, Section 9 of the Ground Lease and the
Applicable [A Provisions) that Owner deems relevant to the Work and that Contractor has
reviewed those provisions and is familiar with the requirements set forth in such provisions.
5.2 Sufficient Personnel. Contractor shall use, and shall require that each of
its Subcontractors use, a sufficient number of Persons, who shall be qualified, properly trained
and, if required by any Applicable Law or any Govemmental Authority, licensed, permitted,
registered or approved, so that Contractor may complete the Work and Contractor's other
obligations under this Agreement in an efficient, prompt, economical and professional manner
and in accordance with the Construction Schedule.
5.3 Labor. Contractor shall use reasonable efforts to minimize the risk of
labor -related delays or disruption of the progress of the Work. Contractor shall promptly take
any and all reasonable steps that may be available in connection with the resolution of violations
of collective bargaining agreements or labor jurisdictional disputes. Contractor shall advise
Owner promptly in writing of any actual or threatened labor dispute of which Contractor has
knowledge that might materially affect the performance of the Work by Contractor or any
Subcontractor. Notwithstanding the foregoing, the settlement of strikes, walkouts, lockouts or
other labor disputes shall be at the discretion of the Party subject thereto.
5.4 Construction Plans. Contractor shall perform engineering and design
services, using qualified architects, engineers and other professionals selected and paid for by
Contractor, in each case as are necessary to prepare the Documentation. Contractor shall
prepare the construction plans (including construction time schedules) and submit such plans to
Owner for approval. Owner shall have ten (10) Business Days to respond to Contractor
regarding the construction plans prepared by Contractor, it being agreed that if Owner does not
provide any comments to Contractor within such period, the construction plans as so submitted
shall be deemed to have been approved by Owner. Any approval by Owner of such construction
plans shall in no way relieve Contractor of any of its obligations or responsibilities hereunder.
Notwithstanding the foregoing, all of the construction plans set forth in Schedule 5.4 have been
approved by Owner.
5.5 Health and Safety. Contractor shall perform the Work in accordance with,
and shall cause all Subcontractors to perform the Work in accordance with, the Project Safety
Manual. Contractor shall not revise or amend the Project Safety Manual without the prior
written consent of Owner, not to be unreasonably withheld or delayed.
5.6 Training of Owner's Personnel.
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5.6.1 No later than one (1) week prior to the Substantial
Completion Date, Contractor shall provide Owner's personnel with up to two (2)
days of on -Site operation and maintenance training in respect of the System, with
the content of such training to be consistent with the outline of the course agenda
set forth on Schedule 5.6.
5.6.2 Scheduling of training shall be coordinated between
Contractor and Owner.
5.7 Utility Use. Contractor shall be responsible to provide and pay for all
construction utilities (such as power, sewage, water, and fuel) that are necessary for Contractor
to perform the Work on the Site.
5.8 Spare Parts. A preliminary list of recommended spare parts that are
required for the ongoing operations and maintenance of the System is attached hereto as
Schedule 5.8 (the "Spare Parts List"). Contractor shall update and amend the Spare Parts List, as
applicable, and shall provide a final version of the Spare Parts List to Owner by no later than the
Substantial Completion Date. In addition, Contractor shall, as part of the Contract Price, provide
an initial inventory of spare parts that are required to operate and maintain the System from the
Substantial Completion Date to the Final Completion Date.
5.9 Technical Documents to be Delivered by Contractor. Contractor shall
deliver to Owner, for Owner's approval, a copy of Contractor's proposed commissioning
procedures for the System at least thirty (30) days before the Substantial Completion Date.
Contractor shall deliver to Owner (a) substantially complete drafts of an owner's manual and
operator's manual no later than one (1) week prior to the Substantial Completion Date; (b)
substantially complete drafts of as -built drawings for the System (including any mark-ups
thereof) by the Substantial Completion Date and (c) final versions, in hard copy and electronic
format, of an owner's manual, operator's manual and as -built drawings by the Final Completion
Date. Any other Documentation not described in the foregoing sentence shall be delivered by
Contractor to Owner in accordance with the requirements set forth in Schedule IC.
5.10 Record Drawings. Contractor shall maintain in good order at the Site all
material Documentation for the performance of the Work, including at least one (1) record copy
of the drawings and specifications, marked currently to record changes made during
construction, all of which will be available to Owner for inspection and use promptly following
request therefor.
5.11 Interconnection. Contractor shall comply with the Transmission
Provider's interconnection requirements including as set forth in the Applicable IA Provisions.
5.12 Cooperation. Contractor shall provide Owner assistance in providing
periodic status updates, data, responses to request for information and reports to any applicable
Governmental Authorities or other third party, in each case as may be reasonably requested by
Owner and at Owner's expense.
5.13 Compliance with Laws. Contractor shall at all times fully comply, and
cause all Subcontractors to fully comply, with Applicable Laws, and Contractor shall give all
CONFIDENTIAL 13

applicable notices with respect to, and in accordance with, any Applicable Laws. Contractor
shall ensure that the System, as designed, constructed and installed, complies, and, when
operated in accordance with Industry Standards, shall comply with all Applicable Laws.
Notwithstanding the foregoing, Contractor shall not be responsible for any environmental
liabilities relating to the relevant part of the Site where the System is located, except for such
pollution, toxic emissions and other Hazardous Materials, or any discharge or release thereof,
that are caused by Contractor or its Subcontractors in connection with the performance of the
Work; provided, however, that Contractor shall be required to comply with all applicable
Environmental Laws during the performance of the Work, including removing, treating,
disposing of and handling, in a manner consistent with applicable Environmental Laws, any
Hazardous Material that Contractor may uncover, move or dislocate or otherwise come in
contact with on, under or around the Site or where the Work is being performed, regardless of
whether any such Hazardous Material were released on, under or around the Site by Contractor
or any of its Subcontractors in performing the Work. Contractor shall notify Owner in writing,
as soon as practicable but in any event within twenty-four (24) hours, if it becomes aware that it
has uncovered any Hazardous Materials at the Site as referred to above or if any Hazardous
Materials are used in the performance of the Work, are caused by the performance of the Work
or are discharged or released onto the Site as a result of the performance of the Work. If
Contractor discovers any suspected Hazardous Materials at the Site the presence of which (x)
was not caused by Contractor or any Subcontractor, (y) was not previously identified by Owner
to Contractor and (z) results in an increase to Contractor's costs or a delay in the performance of
the Work, Contractor shall be entitled to propose a Change Order pursuant to Article 14.
5.14 Permits. Contractor, at its expense, shall obtain, renew and maintain, and
shall file any documents required to obtain, renew or maintain, any Applicable Permits on a
timely basis. The Applicable Permits are listed in Schedule 5.14, including (to the extent
applicable) each pending application with a Governmental Authority with respect to any of the
foregoing. Contractor shall pay for all taxes, fees and costs in order to obtain the Applicable
Permits. At least five (5) Business Days prior to the submittal or filing of any Applicable Permit
application, Contractor shall give Owner a copy of such proposed application. If Owner
approves such Applicable Permit application, Owner shall, if applicable, execute such
Applicable Permit application within such five (5) Business Day period. If Owner objects within
such period to such Applicable Permit application and provides Contractor with the reasonable
grounds for such objection, Contractor shall not proceed with the submittal of such Applicable
Permit application and the Parties shall discuss and agree upon a mutually acceptable method to
proceed with such submittal. The Parties acknowledge that time is of the essence with respect to
the submittal of any such Applicable Permit applications. Notwithstanding the foregoing, any
pending Applicable Permit application identified on Schedule 5.14 has been approved by Owner.
5.15 Reports and Meetings.
5.15.1 Reports. Within three (3) days of the start of each calendar
week until Substantial Completion, Contractor shall prepare and deliver
electronically to Owner's Representative a progress report covering the prior
calendar week, which report shall be substantially in the form of Exhibit 3.
CONFIDENTIAL 14

5.15.2 Meetings. Contractor shall attend and participate in regular
meetings either at the Site or via teleconference with Owner which shall occur
weekly (or upon such other interval as Owner may reasonably request from time
to time) for the purpose of discussing the status of the Work and anticipating and
resolving any problems and which may include, at Owner's request, the Lenders
consultants and other Persons that have agreed in writing to be bound by the
confidentiality obligations set forth in Article 32.
5.16 Equipment. Contractor, at its expense, shall purchase, transport, deliver,
inspect to the extent it deems necessary, and construct and install all Equipment necessary to
complete the System as required hereunder. All Equipment, or any component thereof, to be
supplied by Contractor or its Subcontractors that is to comprise, be a part of or be incorporated
into, the System shall be (a) new, (b) in good condition and (c) fit for the use(s) for which it is
employed by Contractor or its Subcontractors. The Equipment shall at all times be maintained,
inspected and operated as required by Applicable Law, consistent with Industry Standards and in
accordance with, and in a manner that does not void, any manufacturer's or supplier's warranties
(including any warranties of Major Subcontractors). Contractor further agrees that all licenses,
permits, registrations and certificates or other approvals required by Applicable Law or any
Governmental Authority shall be procured and maintained for the Equipment at all times during
the use of the same by Contractor or its Subcontractors in the performance of any of Contractor's
obligations under this Agreement. Contractor shall, as a requirement of Final Completion, (i)
deliver to Owner redacted invoices or other documentation evidencing Contractor's proof of
purchase of the Equipment and (ii) submit completed warranty cards for the Equipment to the
original equipment manufacturers. With respect to the Owner Equipment, Contractor
acknowledges and agrees that, at its expense, as part of the Contract Price, it is responsible for
the inspection, construction and installation thereof as part of the System, in accordance with the
requirements of this Agreement.
5.17 Screening Measures. Contractor shall comply with all applicable labor
and immigration laws that are relevant to Contractor's Work under this Agreement, including the
Immigration Reform and Control Act of 1986 and Form 1-9 requirements. Without limiting the
generality of the foregoing, to the extent required by Applicable Law, Contractor shall perform
all required employment eligibility and verification checks and maintain all required
employment records. Contractor acknowledges and agrees that it is responsible for conducting
adequate screening of its employees and agents prior to starting the Work. By providing an
employee or Subcontractor under this Agreement, Contractor warrants and represents that it has
completed the screening measures with respect to such employee or Subcontractor and that such
screening measures did not reveal any information that could reasonably be expected to
adversely affect such employee's or Subcontractor's suitability for employment or engagement
by Contractor or competence or ability to perform duties under this Agreement. If in doubt
whether a suitability, competence or ability concern exists, Contractor shall discuss with Owner
the relevant facts and Owner shall determine, in its sole discretion, whether such Person should
be allowed to perform the Work. Owner, in its sole discretion, shall have the option of barring
from the Site any person whom Owner determines in its reasonable discretion does not meet the
qualification requirements set forth above. In all circumstances, Contractor shall ensure that the
substance and manner of any and all screening measures performed by Contractor pursuant to
this Section 5.17 conform to Applicable Law.
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5.18 Protective Measures.
5.18.1 Contractor shall take all precautions reasonably necessary
to protect from personal injury, death or occupational disease, all workers and all
other Persons who may be on or about the Site or surrounding premises where
Work is being done. Contractor shall comply with the Project Safety Manual. In
the event that Contractor places twenty (20) or more personnel at the Site,
whether employees or Subcontractors, to perform the Work, Contractor shall
designate a responsible, qualified full-time member of Contractor's or any of its
Subcontractor's organizations at the Site whose duty shall be taking reasonable
measures for the prevention of incidents and injuries and addressing unsafe and
undesirable behavior for each of the following two (2) areas: environmental
matters (EPA and state -level) and safety matters, as each area relates to activities
generally and the Work specifically.
5.18.2 Contractor shall be responsible for the safety of all Persons
working at the Site or who enter the Site for any purpose until the Substantial
Completion Date. Contractor shall undertake reasonable measures to ensure that
all Persons working at the Site or who enter the Site for any purpose comply with
all Applicable Laws relating to health and safety. Contractor shall provide
security and fencing at the Site and any other reasonable measures required to
prevent vandalism, theft and danger to the System, the Site, Equipment and
personnel. Without limiting the generality of the foregoing, Contractor shall: (a)
take all reasonable precautions to prevent injury to all Persons on the Site and
arrange to have first aid administered to all Persons who are injured or become ill
on the Site, and promptly report all accidents and injuries to Owner; (b) provide
sufficient light for all Work; and (c) make contact with the local fire department,
police department, and hospital and be aware of local emergency response
procedures.
5.18.3 Owner shall have the right to require Contractor
immediately to stop Work whenever, in Owner's reasonable judgment, safety
violations or other conditions or circumstances exist that could be reasonably
expected to result in serious personal injury, death, occupational disease or
significant damage to property ("Safety Violations'). The reasonable expense of
any such stoppage of Work, including any standby time or other cost incurred,
shall be at Contractor's expense unless such stoppage is due to the gross
negligence or willful misconduct of Owner. Persons responsible for Safety
Violations shall be removed from the Site until such time as, in the reasonable
judgment of Contractor and Owner, such Persons have received appropriate safety
instructions and training.
5.18.4 All Work done and materials used on the Site shall be in
material compliance with the Safety and Health Standards promulgated under the
Occupational Safety and Health Act of 1970. The location of the Site may require
Contractor to comply with OSHA regulation "Occupational Exposure To
Bloodborne Pathogens" (29 CFR 1910.1030). If applicable, Contractor shall
CONFIDENTIAL 16

inform, in accordance with Applicable Law, all of its employees and
Subcontractors of this potential biohazard and ensure that universal precautions
are exercised in the handling of such materials to prevent or eliminate this
potential. Similarly the requirements of OSHA's Hazardous Waste Operations
and Emergency Response ("HAZWOPER"), regulations (29 CFR 1910.120), may
apply to the Work. Contractor shall inform Owner at the earliest practicable date
as to whether HAZWOPER applies and the basis for that determination.
5.18.5 In the event of an emergency posing or creating an
imminent risk of bodily injury or damage to property in any way relating to the
Work, whether on the Site or otherwise, Contractor shall take such actions as may
be reasonable and necessary to prevent, avoid or mitigate injury, damage or loss
and shall report each such emergency, and Contractor's responses thereto, to
Owner orally within two (2) hours of the occurrence of such emergency.
Contractor shall use commercially reasonable efforts to report an emergency to
Owner in sufficient time to allow Owner to make any required reports to any
Government Authority in accordance with Applicable Laws. In addition,
Contractor shall notify and provide Owner with (a) a reasonably detailed
preliminary accident report within twenty-four (24) hours of any material
accident, including any accidents resulting in bodily injury or property damage or
significant near -miss incidents or fires arising out of or in connection with the
Work, with a final report to follow within five (5) Business Days thereafter,
which reports shall conform to the requirements of Applicable Law, and (b) a
copy of all reports made to Governmental Authorities and insurance companies
relating to any accident or injury occurring during the performance of the Work
within twenty-four (24) hours after their submission. Each final report and each
report made to Governmental Authorities shall also contain an analysis of cause
and a correction plan to prevent similar occurrences.
5.18.6 Except as otherwise authorized by Owner in writing, all
Equipment furnished, delivered or installed by Contractor (including, for the
avoidance of doubt, all materials and tools used by Contractor in the performance
of the Work, but excluding, for the avoidance of doubt, the Owner Equipment) at
the Site shall contain zero percent (0"/u) asbestos, refractory ceramic fibers, lead,
methylene chloride or polychlorinated biphenyls. If Owner authorizes in writing
such delivery or use, Contractor shall clearly mark all containers or other
materials containing asbestos, refractory ceramic fibers, lead, methylene chloride
or polychlorinated biphenyls, and such containers or materials shall be sealed to
prevent any leakage of asbestos, refractory ceramic fibers, lead, methylene
chloride or polychlorinated biphenyls.
5.18.7 All trucks, vehicles, equipment, machinery, or the like
provided by Contractor shall be in safe operating condition and at all times shall
be properly protected, maintained, and safely operated.
5.18.8 Contractor shall, and shall cause all Subcontractors
performing Work to, establish and implement a substance abuse and drug testing
CONFIDENTIAL 17

program that, among other things, prohibits the use of illegal drugs or alcohol on
the Site and prohibits any employees or agents of Contractor or any such
Subcontractor from entering the Site while under the influence of illegal drugs or
alcohol and is otherwise in accordance with this subsection. The program criteria
shall include, to the extent permitted by Applicable Law: pre -employment five (5)
panel drug screen, post -incident drug screening, random drug screens and clearly
defined responses to positive test results. Drug and alcohol testing should be
performed for the following reasons: (a) pre -employment, (b) post-
accident/incident, (c) monthly random tests (10% of total Site manpower), and (d)
reasonable cause or suspicion. Contractor shall require each Subcontractor
performing Work to submit a monthly report indicating the number of drug and
alcohol tests conducted, including the number of positive test results. For random
testing the names of all employees or Subcontractor employees on Site will be
included in a random drawing of names to be conducted monthly. A number of
employees (no less than 10% of the total on Site work force) will be selected at
random and required to be tested for a five (5) panel drug screen.
5.18.9 Contractor shall follow good construction practices,
including dust monitoring and control, at the Site. Contractor shall have a Person
on Site, with the requisite training and experience, to observe on -Site activities
with a view to, among other things, the potential need for additional worker
protections.
5.18.10 Contractor shall keep the relevant part of the Site where
the System is located and surrounding areas free from waste, garbage and debris.
On or prior to the Final Completion Date, Contractor shall have removed from the
Site all tools, trailers, surplus and waste materials, and shall otherwise leave the
System and the Site in neat and clean condition.
5.18.11 If any Subcontractor employees performing Work at the
Site are non-English speakers, Contractor shall provide a bilingual employee or
translator who shall (a) be responsible for communicating safety and hazard
related communications, emergency response, and other similar information
translated from English for such non-English speaking employees, (b) be on -Site
in the immediate vicinity of non-English speaking employees at all times to
communicate emergency information and instructions, and (c) conduct a walk -
down of the Work area with all non-English speaking employees, translating
signs, explaining hazards and warnings prior to commencing Work. Contractor
shall further ensure that all written and verbal safety training, hazard
communications, and work rules are provided, or a translator is made available to
communicate such instructions orally, in the appropriate language for non-English
speaking employees.
6. Owner Responsibilities.
CONFIDENTIAL 18

6.1 Access. Subject to any restrictions imposed by the Ground Lease, Owner
shall provide Contractor with all necessary access to the Site and work areas Contractor requires
for completion of the Work in accordance herewith.
6.2 Compliance with Laws. Owner shall perform its obligations hereunder in
accordance with Applicable Laws, including but not limited to all Environmental Laws.
6.3 Site Inspection. Owner has conducted a due diligence investigation to
determine the suitability of the Site for the System, and has furnished to Contractor a written
report summarizing the results of Owner's due diligence investigation (the "DD Report').
Contractor has conducted a reasonable visual inspection of the Site (the "Contractor Site
Inspection"), reviewed the DD Report, and has notified Owner that there are no Site conditions
that were evident or readily discernible that shall affect the cost or schedule for the construction
of the System. Any subsurface or other site conditions subsequently discovered at the Site or
changes in the Site parameters that do not conform to the information disclosed in the DD Report
or were not evident or readily discernible in the Contractor Site Inspection, including any
Unforeseen Site Condition, shall allow Contractor to pursue a Change Order pursuant to Article
14 to the extent that such conditions increase the costs to Contractor of the Work or delay the
Construction Schedule. For purposes of this Agreement: (a) "Unforeseen Site Condition" means
any natural or manmade subsurface condition, underground void, caves or groundwater,
Antiquity, flora or fauna protected by Applicable Law, or Hazardous Materials on the Site, not
disclosed in the DD Report or otherwise evident or readily discernible in the Contractor Site
Inspection; and (b) "Antiquity" means any man-made object, fossil, human remains, or evidence
of human burials, which has a reasonable likelihood of being determined by any Governmental
Authority both to be of historical value and to require preservation pursuant to any Applicable
Law relating to antiquities protection, and which was not disclosed in the DD Report or
otherwise evident or readily discernible in the Contractor Site Inspection.
6.4 Inspection. All Work performed by Contractor or its Subcontractors and
all Equipment and the Owner Equipment shall be subject to inspection by Owner, but such right
of inspection, or such inspection, of the Work or Equipment or Owner Equipment shall not
relieve Contractor of its responsibility in accordance with the provisions hereof for the
performance of the Work or otherwise with respect to the Equipment and the Owner Equipment.
Owner shall ensure, in coordination with Contractor, that any inspections by Owner do not
unreasonably interfere with or delay Contractor's performance under this Agreement. In its sole
discretion, Contractor may elect to accompany Owner during such inspection(s). Owner shall
provide Contractor a copy (or, in Owner's sole discretion, a summary) of any report prepared by
Owner for its use resulting from such inspections; provided that, for the avoidance of doubt,
Owner shall have no obligation to provide any such summary or report that constitutes attorney
work product or is subject to the attomey-client privilege.
Commencement of Work.
7.1 Issuance of Notice to Proceed. The Parties shall have no obligation to
perform their respective obligations under this Agreement related to the performance of the
Work prior to the date that Owner delivers the Notice to Proceed to Contractor (the "NTP
Date"). Owner shall be required to issue and deliver the Notice to Proceed to Contractor upon
CONFIDENTIAL 19

any conditions or requirements in this Agreement applicable to the commencement of the Work,
including with respect to insurance or otherwise, having been satisfied or complied with, to
Owner's reasonable satisfaction.
7.2 Owner Obligations. Within 7 days of the NTP Date, Owner shall pay, or
cause to be paid to, Contractor, in immediately available funds, an amount equal togpercent
Hof the Contract Price, which is equal to= Upon receipt by Contractor of the
foregoing item, Contractor shall commence the Work at the Site as soon as practicable in order
to enable Contractor to achieve Substantial Completion by the Guaranteed Substantial
Completion Date.
Commercial Delivery of Power.
8.1 Conditions. "Commercial Delivery of Power" shall be deemed to have
occurred upon satisfaction of all of the following conditions:
8.1.1 The System shall be mechanically, electrically, and
structurally constructed, and completed and commissioned in accordance with (x)
the commissioning procedures referred to in Section 5.9, (y) the Contractor
provided commissioning procedures or (z) the engineer's of record
commissioning procedures (any of the foregoing, the "Commissioning
Procedures") and the other requirements applicable thereto as specified in this
Agreement (it being agreed, for purposes of this Section 8.1.1, that the "System"
shall exclude the SCADA or DAS, as applicable, provided that (a) such exclusion
shall not adversely affect safe operation of the System, and (b) Contractor shall
continue to use commercially reasonable efforts to complete the construction,
completion and commissioning of the SCADA or DAS, as applicable, as soon as
practicable);
8.1.2 Contractor shall have provided a certificate to the Owner
that all critical testing including but not limited to the Commissioning Procedures
have been completed and all operating procedures for safe operation including
start-up, shutdown and emergency response are in place;
8.1.3 The System shall be interconnected to the specified utility
grid as allowed by the Transmission Provider and the System shall have achieved
initial synchronization;
8.1.4 The metering system provided by Owner and to be installed
by Contractor pursuant to Schedule 1C shall have been installed and calibrated
and shall be functioning accurately; and
8.1.5 The Contractor shall have provided to Owner a certificate
of final completion from the electrical inspector of Pitt County , North Carolina,
attaching a copy of such certificate, and the engineer of record shall have
provided a commissioning report that certifies that the Equipment has been
installed, tested and is ready and available to be used for its intended purpose.
CONFIDENTIAL 20

8.2 Control; Operations. Upon the System having achieved Commercial
Delivery of Power, the Parties agree that, without limiting in any way Contractor's obligations
under Section 13.2, Owner shall control the System and that the operations of the System shall
be available to commence on a daily or regular basis.
9. Performance Testing,
9.1 Performance Tests. As a condition of Substantial Completion, Contractor
shall start up and commission the System and perform the Performance Tests in conformance
with the applicable requirements of this Agreement. Contractor's technical personnel (or, when
applicable, the installer and/or manufacturer's personnel, with Contractor's supervision) shall
operate the System during the Performance Tests, although Owner (and Owner's personnel,
agents, representatives, consultants and invitees, including the Lenders) shall be entitled to be
present during any Performance Tests. Contractor shall provide Owner with at least five (5)
Business Days' prior written notice of the commencement of any Performance Tests in order to
permit Owner's Representative to coordinate attendance and observation of such Performance
Tests; provided, however, that Contractor shall use commercially reasonable efforts to provide
such notice at an earlier date.
9.2 Performance Guarantee. Contractor agrees that the System shall produce
the aggregate electrical output as evidenced by the Performance Tests (the "Performance
Guarantee").
9.3 Satisfaction of Performance Tests. As soon as practicable following
successful completion of any Performance Tests, Contractor shall submit to Owner's
Representative the raw data and completed results of such Performance Tests. By submitting the
foregoing, Contractor represents to Owner that the raw data and completed results are accurate
and the Performance Tests have been conducted in accordance with the applicable requirements
of this Agreement. Within five (5) Business Days after its receipt thereof, Owner shall notify
Contractor whether or not it agrees that the Performance Guarantee has been satisfied, stating, if
it disagrees, in reasonable detail the reasons therefore. In the event that Owner provides timely
written notice that the Performance Guarantee has not been satisfied, Contractor shall, after
receipt of such notice and reasonably promptly, but in no event later than thirty (30) days
thereafter, adjust or modify any of the Work and take all corrective actions so that the System
may successfully achieve the Performance Guarantee and repeat the Performance Tests in
accordance with this Section, without prejudice, however, to any of Owner's rights and remedies
in accordance with this Agreement. If the System cannot be corrected within thirty (30) days
due to the unavailability of equipment or material necessary for the correction of the System and
the Parties agree to a plan in writing for corrective action proposed by Contractor including a
projected timeline in order to meet the Performance Guarantee, then Contractor shall continue to
be assessed Delay Liquidated Damages and be allowed the time in accordance with the agreed
upon corrective action plan to adjust or modify any of the Work so that the System may
successfully achieve the Performance Guarantee and repeat the Performance Tests in accordance
with this Section; provided, however, that if the Performance Guarantee is not satisfied within
such thirty (30)-day period or other agreed upon time limit, Owner shall have the right, at its sole
discretion, to either (i) require Contractor to continue to use commercially reasonable efforts to
improve the performance of the System to achieve the Performance Guarantee and, if applicable,
CONFIDENTIAL 21

begin or continue to assess Delay Liquidated Damages or (ii) terminate this Agreement upon
written notice to Contractor and pursue all rights and remedies available to Owner hereunder.
For the avoidance of doubt, Owner's exercise of the right referenced in clause (i) above shall not
preclude or otherwise prejudice Owner from subsequently exercising its right set forth in clause
(ii) above so long as the Performance Guarantee has not been achieved by Contractor. If any
Dispute regarding the satisfaction of the Performance Guarantee arises, either Party shall be
entitled to submit the Dispute to dispute resolution pursuant to Article 30 grovided, however,
that, pending resolution of any such Dispute, Contractor shall continue to take such actions as
Owner may require in its notice. Anything in this Section 9.3 to the contrary notwithstanding,
Contractor shall not be deemed in breach of this Section to the extent that the failure to satisfy
the Performance Test is due to Owner Equipment, provided that Contractor shall have complied
with its obligations set forth in the final sentence of Section 5.16.
10. Substantial Completion.
10.1 Substantial Completion. "Substantial Completion" of the System shall be
deemed to have occurred upon the satisfaction of all of the following conditions:
10.1.1 Contractor shall have satisfied the Performance Guarantee;
10.1.2 Contractor shall have paid any Delay Liquidated Damages
in full;
10.1.3 the System (including the SCADA or DAS, as applicable)
shall be (a) mechanically, electrically, and structurally constructed and completed
in accordance with this Agreement, (b) interconnected, in accordance with the
requirements of the Interconnection Agreement, and (c) generating verifiable,
billing quality electricity production data, as evidenced by the SCADA or the
DAS, as applicable;
10.1.4 Contractor shall have provided a certificate to Owner
stating that all Applicable Permits have been obtained and maintained as required
by Applicable Law, and, to the extent applicable to achieve Final Completion, are
in full force and effect;
10.1.5 Contractor shall have provided the training to Owner's
personnel required pursuant to Section 5.6,
10.1.6 Contractor shall have provided to Owner (a) a list of the
System's major equipment, including the make and model number of all
photovoltaic modules, inverters, trackers, step-up transformers, switchgear and
solar irradiation and meteorological monitoring equipment and (b) a final version
of the Spare Parts List required pursuant to Section 5.8;
10.1.7 the Punch List shall have been agreed upon and accepted in
writing by Contractor and Owner, a complete copy of which shall be attached to
the Certificate of Substantial Completion;
CONFIDENTIAL 22

10.1.8 Contractor shall have provided to Owner (a) substantially
complete drafts of an owner's manual and operator's manual for the System, (b)
substantially complete drafts of as -built drawings for the System (including any
mark-ups thereof) and (c) any other Documentation set forth in Schedule 1C that
is required to be delivered at Substantial Completion;
10.1.9 Contractor shall have provided to Owner a certificate
executed by an executive officer stating that, except with respect to the Owner
Equipment or as otherwise authorized by Owner in writing, all Work furnished or
delivered by Contractor and all materials and tools used by Contractor on the Site
contain zero percent (0%) asbestos, refractory ceramic fibers, lead, methylene
chloride or polychlorinated biphenyls;
10.1.10 Contractor shall have provided to Owners cost breakdown
summarizing the components of the Work and breaking down the costs of the
major equipment (excluding the Owner Equipment), materials and labor,
substantially in the form of Schedule 26; and
10.1.11 Contractor shall have submitted to Owner duly executed
conditional lien waivers and releases from Contractor and each Major
Subcontractor, in the form of Exhibit 6.
10.2 Certificate of Substantial Completion. When Contractor believes that it
has achieved Substantial Completion, Contractor shall notify Owner in writing with a Certificate
of Substantial Completion, substantially in the form of Exhibit 4, which certificate shall be
accompanied by Contractor's proposed Punch List and any other information deemed reasonably
necessary by Contractor. Promptly thereafter, Owner shall conduct such investigations and
inspections as it deems necessary or appropriate to determine if Substantial Completion has in
fact been achieved. Within ten (10) Business Days after its receipt of Contractor's notice, Owner
shall notify Contractor either that (a) Substantial Completion has been achieved and countersign
and deliver to Contractor the Certificate of Substantial Completion, or (b) Substantial
Completion has not been achieved, stating in reasonable detail the reasons therefor. In the event
that Owner provides timely written notice that Substantial Completion has not been achieved,
Contractor shall, at its sole cost and expense, insofar as such failure to achieve Substantial
Completion is due to the performance, or lack of performance, of the Work by Contractor,
immediately correct or remedy the defects, deficiencies and other conditions which prevent
Substantial Completion. The foregoing procedures shall be repeated until the date Substantial
Completion has in fact been achieved. Following Substantial Completion, Contractor and Owner
shall from time to time mutually update the Punch List to remove items as and when they are
completed.
10.3 Substantial Completion Date. The effective date of the Certificate of
Substantial Completion shall be the date on which Owner countersigns the Certificate of
Substantial Completion submitted by Contractor to Owner; provided, however, that if within ten
(10) Business Days after its receipt of a Certificate of Substantial Completion, Owner notifies
Contractor that Substantial Completion has been achieved and countersigns such Certificate of
Substantial Completion "as submitted" by Contractor to Owner, with no additional Work having
CONFIDENTIAL 23

been performed by Contractor following the submittal of such Certificate of Substantial
Completion, the effective date of such Certificate of Substantial Completion shall be the date on
which Contractor submitted such Certificate of Substantial Completion to Owner. Any Disputes
between the Parties regarding whether or not Substantial Completion has been achieved shall be
resolved in accordance with Article 30.
10.4 Acceptance. Acceptance by Owner of the Certificate of Substantial
Completion shall not constitute acceptance by Owner of defective or otherwise non -conforming
Work or in any way operate to release Contractor from any obligation under this Agreement
Contract (other than the obligation of Contractor to achieve Substantial Completion).
11. Final Completion.
11.1 Final Completion. "Final Completion" of the System shall be deemed to
have occurred upon the satisfaction of all of the following conditions:
1 1.1.1 Owner shall have countersigned a Certificate of Substantial
Completion;
11.1.2 all items on the Punch List shall have been completed or
otherwise resolved by mutual agreement of the Parties;
11.1.3 Contractor shall have provided Owner with the final
versions, in hard copy and electronic formats, of an owner's manual, operator's
manual and as -built drawings for the System, together with all other
Documentation required to be delivered to Owner by Contractor pursuant to this
Agreement and Schedule 1C and not otherwise delivered in final form to Owner
in connection with the achievement of Substantial Completion, including QA/QC
and other test and inspection certificates and reports applicable to the Work;
11.1.4 Contractor shall have removed all of its construction
equipment, material and support personnel from the Site;
11.1.5 Contractor shall have provided Owner with redacted
invoices or other documentation evidencing Contractor's proof of purchase of the
Equipment and shall have submitted completed warranty cards for the Equipment
to the original equipment manufacturers (for clarity, excluding in each case the
Owner Equipment);
11.1.6 Contractor shall have provided Owner an affidavit that all
invoices which include sales and use taxes have been paid and that Contractor and
all of its Subcontractors have no outstanding claims or expenses relating to such
sales and use taxes;
11.1.7 Contractor shall have assigned to Owner the Assigned
Warranties as contemplated by Section 4.2 and pursuant to documentation
reasonably satisfactory to Owner;
CONFIDENTIAL 24

11.1.8 Contractor shall have provided Owner with duly executed
conditional lien waivers and releases from Contractor and each Major
Subcontractor (and any other Subcontractor who performed Work at the Site, to
the extent obtained by Contractor, after reasonable efforts), in the form of Exhibit
8; and
11.1.9 the Site shall be free of construction debris.
11.2 Certificate of Final Completion. When Contractor believes that it has
achieved Final Completion, Contractor shall notify Owner in writing with a Certificate of Final
Completion, substantially in the form of Exhibit 5 which certificate shall be accompanied by any
information deemed reasonably necessary by Contractor. Promptly thereafter, Owner shall
conduct those investigations and inspections as it deems necessary or appropriate to determine if
Final Completion has in fact been achieved. Within ten (10) Business Days after its receipt of
Contractor's notice, Owner shall notify Contractor that either (a) Final Completion has been
achieved and countersign and deliver to Contractor the Certificate of Final Completion, or (b)
Final Completion has not been achieved, stating in reasonable detail the reasons therefor. In the
event that Owner provides timely written notice that Final Completion hhs not been achieved,
Contractor shall, at its sole cost and expense insofar as such failure to achieve Final Completion
is due to the performance, or lack of performance, of the Work by Contractor, immediately
correct or remedy the defects, deficiencies and other conditions which prevent Final Completion.
The foregoing procedures shall be repeated until Final Completion has in fact been achieved.
11.3 Final Completion Date. The effective date of the Certificate of Final
Completion shall be the date on which Owner countersigns the Certificate of Final Completion
submitted by Contractor to Owner; providedhowever, that, if, within ten (10) Business Days
after receipt of any Certificate of Final Completion, Owner notifies Contractor that Final
Completion has been achieved and countersigns such Certificate of Final Completion "as
submitted" by Contractor to Owner, with no additional Work having been performed by
Contractor following the submittal of such Certificate of Final Completion, the effective date of
such Certificate of Final Completion shall be the date on which Contractor submitted such
Certificate of Final Completion to Owner. Any Disputes between the Parties regarding whether
or not Final Acceptance has been achieved shall be resolved in accordance with Article 30.
11.4 Acceptance. Acceptance by Owner of the Certificate of Final Completion
shall not constitute acceptance by Owner of defective or otherwise non -conforming Work or in
any way operate to release Contractor from any obligation under this Agreement Contract (other
than the obligation of Contractor to achieve Final Completion).
12. Liquidated Damages.
12.1 Commercial Delivery of Power Delay Liquidated Damages. Commercial
Delivery of Power shall occur on or before December 31, 2013. The Parties agree that Owner
would suffer actual damages in the event that Contractor does not achieve Commercial Delivery
of Power by December 31, 2013 and that it would be extremely difficult and impracticable under
presently known and anticipated facts and circumstances to ascertain the actual damages Owner
would incur should Commercial Delivery of Power not occur on or before December 31, 2013.
CONFIDENTIAL 25

Accordingly, if Contractor does not achieve Commercial Delivery of Power by December 31,
2013, and such failure is in no way caused by or attributable to actions or inaction of Owner or
the Transmission Provider, Contractor shall pay to Owner, as Owner's remedy for such delay, as
liquidated damages, and not as a penalty, a lump sum payment determined by multiplying (a)
by (b) the number of MWac that have not achieved Commercial Delivery of Power
by December 31, 2013 ("Delay Liquidated Damages" or " Delay LDs"). The Delay LDs shall be
Owner's sole and exclusive remedy for Contractor's failure to achieve Commercial Delivery of
Power by December 31, 2013; provided, however, that the Delay LDs shall not limit any right
Owner may have to terminate this Agreement as a result of such delay pursuant to Section
16_1.7. If Delay LDs are due and payable in accordance with this Section 12.1, they shall be
payable in accordance with Section 12.4.
12.2 Reserved. .
12.3 Reserved.
12.4 Payment of Delay LDs. Owner shall issue an invoice to Contractor for
any Delay LDs and Contractor shall pay such Delay Liquidated Damages within fifteen (15)
days after receipt of the invoice; provided, however, that, if Contractor fails to pay any such
Delay LDs that are not subject to a good faith dispute, Owner may, without waiving any of its
other rights hereunder, deduct the amount of such Delay LDs that are not in dispute from any
monies due, or that may become due, to Contractor under this Agreement. Late payments of
Delay LDs, including any thereof that were subject to a good faith dispute but which were
subsequently determined to be due and payable in accordance with this Agreement, shall bear
interest from the initial due date until the date actually paid at the Default Rate.
12.5 Delay LDs Cap. The aggregate amount of all Delay LDs shall in no event
exceed $1,000,000.
13. Title: Risk of Loss.
13.1 Title. Except as otherwise provided expressly in this Agreement, good,
exclusive and marketable title, free and clear of all Liens (other than Liens created by the non-
payment by Owner of an invoice amount which is not the subject of a good faith dispute), to all
Equipment and to each constituent part thereof shall pass to Owner upon the earliest of the
following: (i) the date that such Equipment or constituent part thereof is delivered to the Site,
(ii) the date that title to such Equipment or constituent part thereof transfers to Contractor or
Subcontractor from a third party vendor; (iii) the date payment of the amount then due under an
invoice covering such Equipment or constituent part thereof is made by Owner to Contractor,
notwithstanding any disputed amounts withheld or offset by Owner against any payment sought
by Contractor in accordance with the terns of this Agreement; and (iv) upon termination of this
Agreement in accordance with its terns. Contractor shall, however, retain care, custody and
control of all of the Equipment and each constituent part thereof, together with the Owner
Equipment, and exercise due care with respect thereto until the earlier of (x) Substantial
Completion and (y) termination of this Agreement. For the purpose of protecting Owner's
interest in all Equipment with respect to which title has passed to Owner but which remain in the
possession of Contractor or another party, together with the Owner Equipment, Contractor shall
CONFIDENTIAL 26

take or cause to be taken all steps reasonably necessary under Applicable Laws to protect
Owner's title to the Equipment and the Owner Equipment and to protect Owner against claims
by other parties with respect thereto. Any transfer of title shall in no way affect Owner's other
rights as set forth in other provisions of this Agreement or be deemed an acceptance or approval
Of such Equipment (or any Work).
13.2 Contractor Risk of Loss. From the Effective Date until the Substantial
Completion Date, and subject to Section 13.3, Contractor assumes risk of loss and full
responsibility for the cost of replacing, repairing, restoring or rebuilding any loss or damage to
the System and all Equipment (including temporary materials, equipment and supplies) and
Owner Equipment that are purchased by Contractor or Owner for permanent installation in or for
use during construction of the System, regardless of whether Owner has title thereto under this
Agreement; provided, however, that the foregoing shall not apply with respect to any loss or
damage that is caused by the negligent or willful acts of Owner or its agents, employees or
representatives. For the avoidance of doubt, this Section 13.2 shall apply to any loss or damage
caused by a Force Majeure Event prior to the Substantial Completion Date.
13.3 Owner Risk of Loss. Owner shall bear the risk of loss and full
responsibility in respect of the System (a) from and after the Substantial Completion Date;
provided, however, that the foregoing shall not apply with respect to any, and Contractor shall be
fully responsible for, loss or damage to the System that is caused by (i) the negligent or willful
acts of Contractor, its Subcontractors, or its and their agents, employees or representatives or (ii)
any warranty Work performed by Contractor or any of its Subcontractors and (b) to the extent
such loss is caused by the negligent or willful acts of Owner, its agents, employees or
representatives.
13.4 Contractor Tools. Risk of loss or damage to the equipment or tools of
Contractor, all Subcontractors and their respective employees and agents shall at all times remain
with those parties, and Owner shall have no responsibility for such equipment or tools, unless
such loss is due to the negligent or willful acts of Owner, its agents, employees or
representatives.
14. Changes and Extra Work.
14.1 Changes. Without invalidating this Agreement, Owner may initiate a
change in the Work consisting of additions, deletions or other revisions (each, a "Change") by
advising Contractor in writing. For the avoidance of doubt, a "Change" does not include any
minor modifications in or to the Work (a) not involving (i) extra cost, (ii) change in design,
quality or performance or (iii) adverse effects on the safety of equipment and (b) not inconsistent
with the purposes of the Work. Except if any Change is necessary for the protection of life or
property or for the safety of the Work as a result of a condition posing an imminent danger to the
foregoing, in which case Contractor shall immediately notify Owner in writing, any Change shall
be authorized through a Change Order, which shall only be effective when signed and accepted
by Contractor and Owner.
CONFIDENTIAL 27

14.2 Proposal and Change Orders. As soon as practicable after receipt of
notice of a requested Change, Contractor shall, with respect to such Change, prepare and forward
to Owner a proposed Change Order, together with any details of any of Contractor's proposed
adjustments to the Contract Price, Construction Schedule, Guaranteed Substantial Completion
Date or any other terns or conditions of this Agreement. Within ten (10) Business Days after
receipt of a proposed Change Order, Owner shall either (a) return a countersigned copy of the
proposed Change Order to Contractor or (b) provide written notice to Contractor that it does not
accept the proposed Change Order, describing in reasonable detail its objections to the proposed
Change Order. Owner shall, despite providing such notice to Contractor and in the event that the
Parties cannot agree upon price, (i) require Contractor to perform its obligations hereunder as
would be modified by the Change Order, provided that, if the Parties cannot agree upon price,
any extra or changed Work shall be performed on a time and material basis in accordance with
the rates specified in Schedule 1F or (ii) solicit bids from at least three (3) alternate contractors to
perform such proposed extra or changed Work and have an alternate contractor perform the
Work as specified by the applicable Change Order if Contractor fails to match the average of
three (3) alternate contractor prices for such extra or changed Work.
14.3 Performance of Changes. All Changes shall be performed in accordance
with the provisions of this Agreement, except as may be otherwise provided in the Change
Order.
14.4 Contractor Proposed Changes. Contractor (a) may propose Changes to
Owner if those Changes improve the System or are otherwise advisable for the Work but shall
have no right to require a Change which is not contemplated by this Agreement and (b) is
entitled to propose a Change Orders as specified in this Agreement, including under Section 15.1
or 20.3. Any proposed Changes, regardless of whether or not such Change is ultimately accepted
by Owner, shall not affect the obligations of Contractor to perform the Work and to deliver the
System in the form agreed to in this Agreement.
15. Force Maieure.
15.1 Force Majeure. A Party shall promptly notify the other Party in writing of
any delay or anticipated delay in such Party's performance of this Agreement due to a Force
Majeure Event, and the reason for and anticipated length of the delay, as soon as practicable but
in any event within forty-eight (48) hours after such Party learns of the occurrence of the Force
Majeure Event. In the event of any Force Majeure Event, the Party affected by such Force
Majeure Event shall (a) exercise all commercially reasonable efforts to bring the situation caused
by the Force Majeure Event under control and mitigate the extent, duration, and impact of such
Force Majeure Event on the Work and the System and (b) provide periodic reports to the other
Party with respect to its actions and plans for actions in accordance with (a) above and promptly
notify the other Party of the cessation of the event or condition giving rise to the Force Majeure
Event. The Party whose performance is affected by the Force Majeure Event shall be entitled to
a reasonable extension of time for delays due to such Force Majeure Event; provided that any
Force Majeure Event that prevents performance so as to permit termination by the applicable
counterparty of the PPA, the Interconnection Agreement or the Ground Lease (and such Party so
terminates such Project Agreement), or any uncured event of default by the applicable
counterparty under the PPA, the Interconnection Agreement or the Ground Lease that permits
CONFIDENTIAL 28

Owner to terminate such Project Agreement (and Owner so terminates such Project Agreement),
shall, in either case, entitle Owner, in its sole discretion, to terminate this Agreement without
penalty. In addition, if a Force Majeure Event delays Contractor's performance of the Work for
a consecutive period of time greater than one hundred eighty (180) days, then Owner, in its sole
discretion, shall have the right to terminate this Agreement without penalty. Any modification to
the Contract Price or Construction Schedule pursuant to this Article 15 shall be documented by a
written Change Order to this Agreement; provided, however, that any change in the Contract
Price shall only take into account the direct costs, including overhead cost, incurred by
Contractor in connection with the Force Majeure Event and shall not include any profit.
15.2 Project Agreements. Owner shall have the right, in its sole discretion, to
terminate this Agreement, without penalty, by notice of its election thereof in writing to
Contractor, in the event that Owner's right to occupy the Site for the purposes contemplated by
the Ground Lease terminates for any reason other than an event of default by Owner thereunder.
16. Events of Default.
16.1 Contractor Events of Default. Each of the following is a "Contractor
Event of Default":
16.1.1 Contractor effects an assignment or purported assignment
of its rights or duties under this Agreement in violation of Article 44;
16.1.2 Contractor voluntarily commences bankruptcy, insolvency
or similar debtor -relief proceedings, or becomes insolvent or generally does not
pay its debts as they become due, or admits in writing its inability to pay its debts,
or makes an assignment for the benefit of creditors;
16.1.3 Insolvency, receivership, reorganization, bankruptcy or a
similar proceeding is commenced against Contractor and such proceeding is not
dismissed or stayed within a period of ninety (90) days thereafter;
16.1.4 Contractor fails to pay any amount due hereunder to Owner
on the due date and the amount remains unpaid and not disputed in good faith ten
(10) days following receipt of notice thereof from Owner;
16.1.5 Contractor fails to maintain any insurance coverages
required pursuant to Article 24 and Contractor fails to remedy such breach within
five (5) days after the earlier of (a) the date on which Contractor first had actual
knowledge of such breach and (b) the date on which Contractor first receives
notice thereof from Owner;
16.1.6 Any representation or warranty made by Contractor in this
Agreement proves to have been false in any material respect when made (but, if
such breach is capable of being cured, only to the extent such breach continues for
thirty (30) days following receipt of a notice in writing of such breach from
Owner);
CONFIDENTIAL 29

16.1.7 Contractor fails to achieve Substantial Completion within
30 days after the Guaranteed Substantial Completion Date;
16.1.8 Contractor fails to achieve Final Completion within 120
days after the Substantial Completion Date; and
16.1.9 Contractor breaches any of its material obligations under
this Agreement (other than those obligations relating to any of the matters set
forth above in this Section 16.1) and fails to cure such breach within thirty (30)
days following receipt of written notice of such breach from Owner.
16.2 Certain Owner Remedies. In the event of the occurrence of a Contractor
Event of Default, without limiting its other rights and remedies (including, if it so elects in its
sole discretion, to terminate this Agreement), Owner shall have the right to:
16.2.1 take possession of and use the Site and all Work or
Equipment, including tools, appliances, machinery, and equipment thereon, which
shall be provided at cost without payment of any profit or sales commission,
notwithstanding that such may belong to or be rented or leased by Contractor, and
finish the Work by whatever method it may deem expedient (it being understood
that Contractor shall not remove any Work from the Site unless Owner so directs
in writing);
16.2.2 take possession of and keep and take title to any
Equipment, or component thereof, that is to comprise or be incorporated into the
System and is located off Site under Contractor's possession or control and is
unique, specially -designed or manufactured for use or incorporation in the Work
or which is not readily available on the general market without delay; provided,
however, that, to the extent that any such Equipment was not covered by any
invoice previously paid by Owner, the foregoing shall not excuse Owner's
payment obligation with respect to such Equipment;
16.2.3 use any Subcontractor with or without assuming its
Subcontract, and pay it in accordance with the terms of its Subcontract, or in
accordance with such other terms on which Owner and Subcontractor may
mutually agree, and credit payments against the Contract Price or charge
Contractor therefor upon written demand for any sums that are paid directly by
Owner to any Subcontractor for any Work that (a) is not covered by any invoice
that has been previously issued to Owner by Contractor and paid by, Owner
hereunder and (b) if covered by an invoice that has been previously issued to
Owner by Contractor, and paid by, Owner hereunder, is in excess of the invoice
amount allocated to such Work;
16.2.4 suspend all payments due to Contractor; and
16.2.5 require Contractor to assign any or all of the Subcontracts
with a Major Subcontractor to Owner and require Contractor to provide evidence
reasonably satisfactory to Owner that Contractor has assigned such Subcontracts
CONFIDENTIAL 30

to Owner including the assignment of any Assigned Warranties to Owner to the
extent that any such Assigned Warranties have not already been assigned to
Owner.
16.3 Additional Owner Remedies. In the event that Owner elects to terminate
this Agreement as a result of a Contractor Event of Default, and in addition to any rights
otherwise available to Owner hereunder, (a) Contractor shall use commercially reasonable efforts
to reduce or otherwise mitigate any expense or damage to Owner and (b) Owner shall have the
right to complete, or have completed, the Work and seek cover damages for completion of the
Work.
16.4 Cumulative Remedies. The remedies set forth in Section 16.2 and
Section 16.3 are not exclusive but are in addition to any other rights and remedies that may be
available to Owner under this Agreement or Applicable Law.
16.5 Owner Events of Default. Each of the following is an "Owner Event of
Default":
16.5.1 Owner effects an assignment or purported assignment of its
rights or duties under this Agreement in violation of Article 44;
16.5.2 Owner or its guarantor hereunder voluntarily commences
bankruptcy, insolvency or similar debtor -relief proceedings, or becomes insolvent
or generally does not pay its debts as they become due, or admits in writing its
inability to pay its debts, or makes an assignment for the benefit of creditors;
16.5.3 Insolvency, receivership, reorganization, bankruptcy or a
similar proceeding is commenced against Owner or its guarantor hereunder and
such proceeding is not dismissed or stayed within a period of ninety (90) days
thereafter;
16.5.4 any representation or warranty made by Owner in this
Agreement proves to have been false in any material respect when made (but, if
such breach is capable of being cured, only to the extent such breach continues for
thirty (30) days following receipt of a notice in writing of such breach from
Contractor);
16.5.5 Owner fails to pay any amount due hereunder on the due
date and the amount remains unpaid and not disputed in good faith ten (10) days
following receipt of notice thereof from Contractor; and
16.5.6 Owner breaches any of its material obligations under this
Agreement (other than those obligations relating to any of the matters set forth
above in this Section 16.51 and fails to cure such breach within thirty (30) days
following receipt of written notice of such breach from Contractor.
16.6 Contractor Remedies. In the event of any Owner Event of Default,
Contractor shall have all rights and remedies that may be available to Contractor under this
CONFIDENTIAL 31

Agreement or Applicable Law, including, subject to Section 20.21 the right to suspend
performance of the Work or terminate this Agreement.
17. Intellectual Property,
17.1 Ownership of Rights in Documentation. Subject to Section 17.3 and
Article 32, all rights, title and interests in and to the Documentation shall be owned by Owner
and the Documentation shall immediately become the property of Owner when prepared by
Contractor pursuant hereto; provided that nothing in the foregoing shall impair, alter or otherwise
affect Contractor's proprietary rights in its patents, copyright rights, trade secrets, products or
other intellectual property in the Documentation or otherwise prejudice the rights of Contractor
derived from Article 32.
17.2 Ownership of Invention Rights. Subject to Section 17.3, any additional
inventions or intellectual property created by Contractor during the performance of the Work
shall be owned by Contractor.
17.3 License. Contractor agrees to grant and hereby grants to Owner, subject to
Owner's obligations under Section 32 an irrevocable, sublicenseable, non-exclusive, royalty -free
license under all patents, copyrights and other proprietary information of Contractor related to
the Work now or hereafter owned or controlled by Contractor to the extent reasonably necessary
for the operation, maintenance, decommissioning or repair of the System or any subsystem or
component thereof designed, specified, or constructed by Contractor under this Agreement. No
other license in such patents and proprietary information is granted pursuant to this Agreement.
18. Contract Price.
18.1 Amount. Subject to the following sentence, as full compensation for the
Work and all of Contractor's obligations hereunder, Owner shall pay to Contractor as the
contract price for the Work hereunder (the "Contract Price"). The Contract Price
shall be modified in accordance with Change Orders approved in accordance with Article 14.
The Contract Price shall be paid in accordance with Article 19.
18.2 Fixed Price. Except as otherwise set forth herein (including in connection
with Change Orders approved in accordance with Article 14), the Contract Price is firm and
fixed and not subject to any variation or price adjustments (downward or upward) and includes
all costs and expenses to be incurred by Contractor in connection with the performance of the
Work, including all costs and expenses related to design, engineering, Equipment, erection,
commissioning and Performance Tests, travel, lodging and Applicable Permits.
19. Invoicing and Payment.
19.1 Milestones. The milestones set forth in the Schedule of Values attached
hereto as Schedule lE have allocated to them the amount of the Contract Price which Contractor
shall be entitled to receive upon the completion of the particular milestone. The Parties
acknowledge that payment may include materials and Equipment not yet incorporated into the
System that have been delivered to and suitably stored at the Site or, if agreed to in writing, at
designated off -site locations. Owner and Contractor shall negotiate and agree on appropriate
CONFIDENTIAL 32

adjustments of the milestone payments to provide for the effect on the Contract Price arising
from any Change Orders pursuant to the terms of this Agreement.
19.2 Invoices: Lien Waivers and Releases. Upon completion of a particular
milestone set forth in Schedule 1 E, Contractor shall submit (a) an invoice to Owner with respect
to such milestone that Contractor has completed and for which Contractor has not been paid,
together with (b) any other documentation that Owner may reasonably require to substantiate
Contractor's progress or right to payment. In addition, (i) as a condition to each progress
payment hereunder (other than with respect to Final Completion), Contractor shall provide to
Owner duly executed conditional waivers and releases from Contractor and each Major
Subcontractor, in each case in the form attached hereto as Exhibit 6, and (ii) within five (5)
Business Days after its receipt of each progress payment (other than with respect to Final
Completion), Contractor shall provide in respect of itself and each Major Subcontractor duly
executed unconditional waivers and releases, in each case in the form attached hereto as Exhibit
7. As a condition to payment for Final Completion, Contractor shall provide to Owner duly
executed conditional lien waivers and releases from Contractor and each Major Subcontractor
(and any other Subcontractor who performed Work at the Site to the extent obtained by
Contractor, after reasonable efforts), in each case in the form attached hereto as Exhibit 8, and
within five (5) Business Days after its receipt of the milestone payment for Final Completion,
Contractor shall provide to Owner unconditional waivers and lien releases duly executed by
Contractor and each Major Subcontractor (and any other Subcontractor who performed Work at
the Site, to the extent obtained by Contractor after reasonable efforts), in each case in the form
attached hereto as Exhibit 9.
19.3 Payments. Invoices shall be sent by e-mail with confirmation of receipt
(automatic responses not being sufficient for confirmation), and Owner must receive the invoice
and, if applicable, any attached documentation, on the same date. If any invoice is deficient in
any material respect, Contractor shall be required to resubmit that invoice in proper form before
Owner incurs any obligation to pay any portion of it. Except for any portions of any invoices
disputed in good faith, invoices shall be paid by Owner within fifteen (15) days of receipt by
Owner, and Owner shall have the right to withhold payment on any such disputed portions until
such Dispute is resolved in accordance with Article 30. If a payment obligation falls due on a
day other than a Business day, the obligation shall be deemed to be due on the next Business day.
Overdue payment obligations of Owner hereunder, including those payment obligations that
were previously subject to a Dispute and are subsequently found to be due and payable in
accordance with this Agreement, shall bear interest from the initial date due until the date paid at
the Default Rate.
19.4 Final Invoice. Upon Final Completion, Contractor shall submit to Owner
a final invoice which shall set forth all remaining amounts due to it pursuant to this Agreement.
The final invoice shall also include, in addition to the documentation otherwise required by this
Article 19, an affidavit stating that all sales taxes have been paid.
19.5 Set Off. Owner may set off or deduct any undisputed amounts due and
payable by Contractor to Owner hereunder, including any Delay Liquidated Damages, from any
amounts due and payable by Owner to Contractor.
CONFIDENTIAL 33

19.6 No Acceptance by Payment. No partial payment made under this
Agreement shall be construed to be acceptance or approval of any part of the Work or to relieve
Contractor of any of its obligations under this Agreement.
20. Suspension of the Work.
20.1 By Owner. Owner may, in its sole discretion, direct Contractor to suspend
all or any portion of the Work for such period of time as Owner shall specify in the written
notice thereof to Contractor (with such suspension to commence on the date specified therein).
Contractor shall resume any suspended Work in accordance with a further notice from Owner to
such effect.
20.2 By Contractor. Contractor may suspend the Work temporarily if Owner
fails to make any undisputed payment within ten (10) days after receipt of written notice that
such payment is past due; provided, however, that Contractor shall, promptly following receipt
of any such payment by Owner, resume the Work. If a suspension of the Work pursuant to this
Section 20.2 continues for more than sixty (60) days, Contractor shall be entitled to terminate
this Agreement.
20.3 Resumption of Work. After Contractor resumes the performance of the
Work, Contractor shall examine the Work affected by the suspension. Contractor shall make
good any defect, deterioration or loss of the construction or the Work affected that may have
occurred during the suspension period. Costs properly incurred by Contractor (including
mobilization costs, insurance fees and others) shall be added to the Contract Price through a
Change Order in accordance with Article 14, so long as and to the extent the suspension did not
arise due to any act, omission or default on the part of Contractor. In the event of a suspension
pursuant to Section 20.1 or Section 20.2, Contractor shall be entitled to an extension of the
deadlines of this Agreement for the period of the suspension.
21. Taxes.
21.1 Employment Taxes. Neither Owner nor any of its Affiliates nor its or
their officers, employees, agents, consultants or other representatives shall have any liability for
any payroll or employment compensation taxes, for Social Security taxes, or for labor -related
withholding taxes, for Contractor and its Subcontractors (including manufacturers) or any of
their employees; and Contractor agrees to hold Owner and its Affiliates and their respective
consultants and other contractors harmless against any claim or liability therefor.
21.2 Sales and Use Taxes on Contractor Tools. Contractor shall pay all taxes
on Contractor's purchases of goods, tools, equipment, supplies and other consumables which are
not permanently incorporated into the System and which remain the property of Contractor.
Contractor shall also pay all taxes attributable to Contractor's construction equipment, temporary
buildings and other property used by Contractor in its performance of this Agreement.
Allowance for such taxes is included in the Contract Price, and Contractor shall pay those taxes
when assessed, without claim against Owner for reimbursement. Contractor shall impose a
similar obligation on all Subcontractors and shall ensure that no Subcontractor shall have any
claim against Owner for reimbursement of those taxes.
CONFIDENTIAL 34

21.3 Sales and Use Tax on Equipment and Materials. Notwithstanding the
above, the Contract Price includes monies for the payment of any sales, use and privilege taxes
on Equipment incorporated into the System. .Owner is currently authorized under the North
Carolina General Statutes to purchase certain equipment exempt from the sales and use tax, but
subject to the privilege tax at a rate of 1%with a maximum tax of eighty dollars ($80) per article.
Owner will assist Contractor in identifying which items of Equipment will be subject to the
privilege tax. Owner will issue Form E-595E to Contractor to support the exemption from the
sales and use tax on Equipment incorporated into the System. Contractor shall register with the
State of North Carolina for payment of the privilege tax. Contractor will issue Form E-595E to
its Subcontractors to facilitate exempt purchases of items of Equipment subject to the privilege
tax as identified by Contractor. As required by law, Contractor (or Subcontractor(s), if required
by or permitted by law) will accrue the privilege tax on these purchases and remit the appropriate
amount to the State of North Carolina. Sales or use tax should be paid by Contractor and/or a
Subcontractor(s), as applicable, on its purchases of Equipment to be incorporated into the System
and subject to the North Carolina sales or use tax.
21.4 Other Contractor Taxes. Contractor shall be solely responsible for the
reporting, filing and payment of any and all taxes associated with payments received for the
Work, Contractor's income taxes in respect of this Agreement, and all payroll taxes, income tax
withholding, social security contributions and any payroll -related tax, fees or similar charges on
wages or fees paid to its employees and agents for services. Contractor shall be responsible for
complying with all reporting, payment, and other requirements and for obtaining the benefit of
any provision of any law that exempts any portion of the payments received for the Work from
any tax.
21.5 Owner Taxes. Except as otherwise provided in this Agreement, Owner
shall pay all applicable taxes related to the System and the Site (including any applicable
property taxes).
22. Representations and Warranties,• Cooperation.
22.1 Representations and Warranties of Contractor. Contractor represents and
warrants to Owner as of the Effective Date that:
22.1.1 Contractor is a limited liability company duly organized,
validly existing, and in good standing under the laws of the State of North
Carolina, and has full power to engage in the business it presently conducts and
contemplates conducting, and is and will be duly licensed or qualified and in good
standing under the laws of the State of North Carolina and in each other
jurisdiction wherein the nature of the business transacted by it makes such
licensing or qualification necessary and where the failure to be licensed or
qualified would have a material adverse effect on its ability to perform its
obligations hereunder.
22.1.2 Contractor has (either directly or through its
Subcontractors) all the required authority, ability, skills, experience and capacity
necessary to perform the Work in a timely and professional manner, utilizing
CONFIDENTIAL 35

sound engineering principles, project management procedures, construction
procedures and supervisory procedures, all in accordance with Industry Standards.
22.1.3 The execution, delivery and performance by Contractor of
this Agreement have been duly authorized by all requisite action of its governing
bodies;
22.1.4 The execution, delivery and performance by Contractor of
this Agreement will not (a) violate or conflict with any covenant, agreement or
understanding to which it is a party or by which it or any of its properties or assets
is bound or affected, or its organizational documents or (b) subject the System or
any component part thereof to any lien other than as contemplated or permitted by
this Agreement.
22.1.5 The individual executing this Agreement on behalf of
Contractor has been duly authorized to do so and this Agreement constitutes a
legal, valid and binding obligation of Contractor, enforceable against it in
accordance with its terms, subject as to enforceability of remedies to limitations
imposed by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the enforcement of creditors rights generally and
general principles of equity.
22.1.6 There are no actions, suits, proceedings or investigations
pending or, to Contractor's knowledge, threatened against it before any
Governmental Authority that individually or in the aggregate could result in any
materially adverse effect on the business, properties or assets or the condition,
financial or otherwise, of Contractor or in any impairment of its ability to perform
its obligations under this Agreement.
22.1.7 There are no strikes, lockouts or other labor disputes
pending, or, to Contractor's knowledge, threatened or scheduled to occur, with
respect to any of the factories, offices or other facilities of Contractor. To the best
of Contractor's knowledge, there are no strikes, lockouts or other labor disputes
pending, or threatened or scheduled to occur, with respect to any of the factories,
offices or other facilities of any of its Subcontractors.
22.1.8 No Applicable Permit is required on the part of Contractor
in connection with the execution, delivery and performance by Contractor of its
obligations under this Agreement, except those (a) which are listed on Schedule
5.14 and which have already been obtained and are in full force and effect or (b)
which have been applied for and are listed on Schedule 5.14 and which Contractor
anticipates will be timely obtained in the ordinary course of performance of this
Agreement and before being required by Applicable Law and the Construction
Schedule.
22.2 Representations and Warranties of Owner. Owner represents and warrants
to Contractor as of the Effective Date that:
CONFIDENTIAL 36

22.2.1 Owner is a limited liability company duly formed and
validly existing under the laws of the State of Delaware and has full legal capacity
and standing to pursue its limited liability company purpose (including the
capacity to dispose of and encumber all of its assets) and full power to engage in
the business it presently conducts and contemplates conducting, and is and will be
duly licensed or qualified and in good standing under the laws of each jurisdiction
wherein the nature of the business transacted by it makes such licensing or
qualification necessary and where the failure to be licensed or qualified would
have a material adverse effect on its ability to perform its obligations hereunder.
22.2.2 The individual executing this Agreement on behalf of
Owner has been duly authorized to do so and this Agreement constitutes a legal,
valid and binding obligation of Owner, enforceable against it in accordance with
its terms, subject as to enforceability of remedies to limitations imposed by
bankruptcy, insolvency, reorganization, moratorium or other similar laws relating
to or affecting the enforcement of creditors rights generally and general principles
of equity.
22.2.3 The execution, delivery and performance by Owner of this
Agreement have been duly authorized by all requisite action of its governing
bodies. Owner has obtained all consents, approvals, authorizations or orders of
third parties, including Governmental Authorities, if any, necessary for the
authorization, execution and performance of this Agreement by Owner.
22.2.4 The execution, delivery and performance by Owner of this
Agreement will not violate or conflict with any covenant, agreement or
understanding to which it is a party or by which it or any of its properties or assets
is bound or affected, or its organizational documents.
22.2.5 There are no actions, suits, proceedings, or investigations
pending or, to Owner's knowledge, threatened against it before any Governmental
Authority that individually or in the aggregate could impair Owner's ability to
perform its obligations under this Agreement.
22.3 Cooperation. Upon the receipt by a Party of a written request from the
other Party, each Party shall execute such additional documents, estoppels, instruments and
assurances and take such additional actions as are reasonably necessary and desirable to carry out
the terms and intent hereof, all on terms and conditions negotiated by the Parties in good faith.
Neither Party shall unreasonably withhold, condition or delay its compliance with any reasonable
request made pursuant to this Section, but neither Party shall be obligated to execute any
document contemplated hereby if the Parties are unable in good faith, after using commercially
reasonably efforts, to negotiate the terms and conditions of such document.
23. Warranty.
23.1 Contractor System Warrant. Contractor warrants, commencing on the
Substantial Completion Date and for a period of two (2) years thereafter (as may be extended as
CONFIDENTIAL 37

provided below, the "Warranty Period"), tlhat (a) at the time of Substantial Completion, the
System, including all Equipment (but excluding the Owner Equipment), will be new and of good
quality, and (b) the System (excluding the Owner Equipment, but not the Work relating thereto)
will be free from errors and defects in materials, workmanship and design and shall conform to
the requirements and standards set forth in this Agreement, including the Scope of Work and
Equipment manufacturers' requirements. Notwithstanding the foregoing, this warranty shall not
include any deficiencies covered under warranty statements provided by Major Subcontractors as
shown in Schedule 4.2. The Warranty Period for any repaired or replaced part of the System that
is repaired or replaced within the last year of its Warranty Period shall be extended until one (1)
year after the date of the completion of such repair or replacement.
23.2 System Warranty Work. If, at any time after the Substantial Completion
Date and prior to the expiration of the Warranty Period, Owner notifies Contractor of any failure
or breach of the Warranty set forth in Section 23.1, Contractor shall, at Contractor's sole cost and
expense (including the cost of transportation, labor, equipment, parts and all other incidental and
other "in and out" costs associated therewith), promptly correct such failure or breach in a
manner and at such times that reasonably minimize the nature and extent of any interruption of
Owner's operation of the System, whether by repair, retrofit, replacement or otherwise (which
corrective action shall include any necessary removal, disassembly, re -design, reinstallation,
reassembly, reconstruction, re -grading or re -testing and commissioning of any part or portion of
the System connected to, damaged or otherwise affected by such failure, breach or corrective
action) and otherwise cause the System to comply with the foregoing Warranty and this
Agreement. If any such corrective action affects the accuracy of any Documentation, Contractor
shall, at its sole expense, furnish Owner with corrected Documentation. All parts and
components employed in repairs and replacements to the System shall be subject to the foregoing
Warranty and have a level of quality and workmanship equivalent to that required of the Work as
initially installed under this Agreement and shall conform in all material respects to the
requirements of this Agreement, including any particular make or model provided in Schedule
IC or elsewhere in this Agreement. Any corrective work performed by Contractor pursuant
hereto (a) shall be completed within a reasonable period of time, (b) shall address the cause, and
not just the effect, of such failure or breach and (c) shall be subject to such tests and inspections
as Owner may require in its reasonable discretion, and Contractor shall demonstrate to the
reasonable satisfaction of Owner that such failure or breach has been properly corrected. If
Contractor fails to initiate and diligently take steps to promptly correct such failure or breach
within fifteen (15) Business Days after Contractor receives Owner's notice of any such failure or
breach and to pursue that corrective action fully and continuously thereafter, Owner may
undertake or arrange corrective action at Contractor's expense. Any such corrective action by or
on behalf of Owner performed in accordance with this Section, this Agreement (including
Schedule Il and Industry Standards pursuant to the previous sentence shall not limit, impair or
void the Warranty.
23.3 Warranty Exceptions. Contractor shall have no responsibility with respect
to any failure or breach of the Warranty set forth in Section 23.1 to the extent that such failure or
breach is the result of any of the following:
23.3.1 Alterations or repairs made to the System's supporting
structure, or to any part of the System or associated wiring and parts, without
CONFIDENTIAL 38

Contractor's prior written approval, which shall not be unreasonably withheld or
delayed, unless permitted by, and then in accordance with, Section 23.2;
23.3.2 Use of the System beyond the scope contemplated in its
operating manuals or technical specifications; and
23.3.3 Defects caused by Owner's failure to comply with the
operation and maintenance manuals and manufacturers' guidelines applicable to
the System.
23.3.4 Force Majeure Events; and
23.3.5 Deficiencies covered under the Assigned Warranties of the
Major Subcontractors and any warranty for the Owner Equipment.
23.4 Reserved.
23.5 Intellectual Property. Contractor represents and warrants that: (a) no
portion of the Work, System (other than the Owner Equipment) or Documentation, or any use
thereof, will infringe or misappropriate any right of any Person, including any copyright, patent
right, trademark right, trade secret right or confidentiality right of any Person; and (b) there are
no past or present actions, suits or proceedings, nor any actions, suits or proceedings that have
been threatened, that allege that any portion of the Work, System (other than the Owner
Equipment) or Documentation, or any use thereof, infringes upon or misappropriates any such
right of a Person. In the event of a breach of the foregoing, Contractor shall provide the remedy
in Section 25.3.
23.6 Documentation. Contractor warrants that, from the period on which any
final Documentation is provided by Contractor to Owner until the end of the Warranty Period, all
such Documentation, including the written instructions regarding the use of Equipment in
operation and maintenance manuals, shall be complete and accurate as of the time such
Documentation is provided by Contractor to Owner. If Owner notifies Contractor of, or
Contractor otherwise becomes aware of, any failure or breach of the Warranty provided by
Contractor in this Section 23.6 prior to the end of the Warranty Period, Contractor shall, at its
sole expense, furnish Owner with corrected Documentation.
23.7 Title. Contractor warrants that the System (other than the Owner
Equipment) shall be free from encumbrances to title when title thereto purports to transfer to
Owner pursuant to Section 13.1.
23.8 Operation of the System. Contractor acknowledges that the operation of
the System without interruption or disruption is a matter of paramount importance to Owner and
that a breach or failure of any Warranty could jeopardize its continued operation in whole or
part. Accordingly, Contractor shall use its best efforts, in good faith, to correct any such breach
or failure in accordance with this Article 23 so as to minimize revenue loss to Owner and to
avoid disruption of Owner's operations at the Site.
CONFIDENTIAL 39

23.9 Disclaimer. CONTRACTOR'S SOLE WARRANTY HEREUNDER
FOR THE SYSTEM AND THE DOCUMENTATION SHALL BE AS SET FORTH IN THIS
ARTICLE 23 AND, EXCEPT AS SET FORTH IN THIS ARTICLE 23, CONTRACTOR DOES
NOT MAKE (AND HEREBY EXPRESSLY DISCLAIMS) ANY OTHER WARRANTIES IN
RESPECT TO THE SYSTEM OR THE DOCUMENTATION OF ANY KIND
WHATSOEVER, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. CONTRACTOR SHALL NOT BE LIABLE
FOR ANY DEFECT OR DEFICIENCY IN THE WORK TO THE EXTENT THAT THE
SAME RESULTS FROM THE SPECIFIC WRITTEN DIRECTION OF OWNER RELATING
TO THE WORK OR THE SYSTEM; PROVIDED THAT ANY SUCH DEFECT OR
DEFICIENCY IS NOT THE RESULT OF CONTRACTOR'S FAILURE TO PROPERLY
IMPLEMENT THE WORK IN ACCORDANCE WITH THIS AGREEMENT. THE SCOPE OF
SUCH WARRANTY WILL NOT INCLUDE THE ASSIGNED WARRANTIES ASSIGNED
BY CONTRACTOR TO OWNER PURSUANT TO SECTION 4.2.
24. Insurance.
24.1 Coverages. Contractor shall, at its expense, procure or cause to be
procured and maintain or cause to be maintained in full force and effect at all times commencing
on the Effective Date and continuing until Final Completion, the insurance coverages specified
in Schedule 24. Contractor shall require its Subcontractors, at their expense, to procure or cause
to be procured and maintain or cause to be maintained in full force and effect at all times the
insurance coverages specified in Schedule 24 or Contractor may provide such coverage on their
behalf. All such insurance coverage shall be in accordance with the terms of this Article 24 and
Schedule 24. Contractor and its Subcontractors shall not be required to procure, maintain or
cause to be maintained insurance except as specifically set forth in this Article 24 and in
Schedule 24.
24.2 Additional Coverages. Subject to the prior agreement of the Parties,
additional insurance coverages can be included, at Owner's cost and responsibility, under
Contractor's insurance policies puruant to Section 24.1.
24.3 Policy Requirements. The insurance required of Contractor and its
Subcontractors hereunder shall (a) be primary coverage without the right of contribution from
Owner, and (b) include contractual liability in said amount for an insured contract to specifically
cover Contractor's obligations under this Agreement and Subcontractors' obligations, if any, and
(c) name Owner and its Affiliates as additional insureds except for Worker's Compenstation and
Employer's Liability coverage All such insurance policies shall be with financially sound and
reputable insurance companies that have an (i) A.M. Best rating of A- and a financial strength
category of "XII" or higher, (ii) a Standard & Poor's financial strength rating of A- or higher, or
(iii) are otherwise reasonably satisfactory to Owner; and all such policies shall be on terms that
are reasonably satisfactory to Owner. In addition, all such insurance policies shall include a
waiver of subrogation rights against Owner and its Affiliates and its and their respective
directors, officers and employees, and of any right of the insurers under Contractor's
Commercial General Liability policy. To the extent the consent of any insurance carriers or
underwrites under Contractor's insurance policies is required to waive subrogation rights in
CONFIDENTIAL 40

accordance with this Section 24.3. Contractor shall obtain and provide the same to Owner within
five (5) Business Days from the Effective Date.
24.4 Certificates and Notice. Within ten (10) Business Days after the Effective
Date, and upon Owner's request annually thereafter, Contractor shall deliver to Owner
certificates of insurance evidencing the coverage required hereunder as of the Effective Date.
Contractor shall endeavor to provide Owner at least thirty (30) days' prior written notice in the
event of any material modification, cancellation or termination of coverage required to be
maintained by Contractor and its Subcontractors hereunder. If at any time the insurance to be
provided by Contractor hereunder shall be reduced or cease to be maintained, then (without
limiting the rights of the Owner in respect of any default that arises as a result of such failure)
Owner may at its option take out and maintain the insurance required hereby and, in such event,
Owner may withhold the cost of insurance premiums expended for such replacement insurance
from any payments to Contractor.
24.5 No Limitation. The insurance policy limits set forth herein shall in no way
be construed as limits on the Parties' liability under this Agreement. Neither approval nor failure
to disapprove insurance furnished by Contractor or any Subcontractor shall relieve Contractor
from responsibility to provide, or cause to be provided, insurance as required by this Agreement.
25. Indemnity.
25.1 Contractor Indemnity. Contractor shall indemnify, save harmless and
defend Owner and its Affiliates and its and their respective directors, officers, shareholders,
employees, agents, representatives, successors and assigns (each, a "Owner Indemnitee') from
and against, and pay, any and all damages, liabilities, losses, costs and expenses associated
therewith (including attorneys' fees and other professionals' fees) (collectively, "Losses")
incurred by any Owner Indemnitee in connection with or arising from any claim, demand or
cause of action of every kind and character by any third party (including any Governmental
Authority) for (a) physical damage to or physical destruction of third party property, or death of
or bodily injury to any person (including any of Contractor's or any of its Subcontractors'
personnel, employees or agents) to the extent caused by or arising out of or related to
Contractor's breach of this Agreement or the negligence or willful misconduct of Contractor or
any of its Subcontractors and (b) any violation or alleged violation of Applicable Laws (other
than Environmental Laws) by Contractor, any Subcontractor or any of their respective
employees, personnel, agents, invitees or third parties over which either has control, but, in either
case, not to the extent caused by or arising out of or related to (i) the negligence or willful
misconduct of Owner or its employees, personnel, agents, invitees or other third parties not
under the control of Contractor or (ii) a breach by Owner of its obligations hereunder.
25.2 Contractor Environmental Indemnity. Contractor shall indemnify, save
harmless and defend the Owner Indemnitees from and against, and pay, any and all Losses
incurred by any Owner Indemnitee in connection with or arising from any claim, demand or
cause of action of every kind and character for or by reason of:
25.2.1 any presence of Hazardous Materials on, at or under the
Site caused by Contractor, any Subcontractor or any of their respective
CONFIDENTIAL 41

employees, personnel, agents, representatives, invitees or other third parties over
which either has control or for which Applicable Law would otherwise hold
Contractor or any such Subcontractor liable;
25.2.2 any enforcement or compliance proceeding commenced by
or in the name of any Governmental Authority because of an alleged, threatened
or actual violation of any Environmental Law by Contractor, any Subcontractor or
any of their respective employees, personnel, agents, representatives, invitees or
other third parties over which either has control;
25.2.3 any action reasonably necessary to abate, remediate or
prevent a violation or threatened violation of any Environmental Law by
Contractor, any Subcontractor or any of their respective employees, personnel,
agents, representatives, invitees or other third parties over which either has
control; and
25.2.4 any unauthorized asbestos, refractory ceramic fibers, lead,
methylene chloride or polychlorinated biphenyls furnished or delivered to the Site
or installed as part of the System (exclusive of the Owner Equipment) by
Contractor or any Subcontractor.
25.3 Proprietary Rights Indemnity. Contractor shall indemnify, save harmless
and defend the Owner Indemnitees from and against, and pay, any and all Losses incurred by any
Owner Indemnitee in connection with or arising from any third party claim of (a) infringement or
misappropriation by Contractor (or any Subcontractor) of any patent, copyright, trade secret,
invention, proprietary information, other intellectual property right, or other rights of any third
party (collectively "Infrineement Claims") in connection with the System (other than the Owner
Equipment) or any Work, including without limitation, any Documentation, or (b) Contractor's
(or any Subcontractor's) violation of any third -party license to use intellectual property in
connection with the System (other than the Owner Equipment) or any Work, including any
Documentation. Owner agrees that if the operation or use of the System (other than the Owner
Equipment), any Equipment or any Documentation becomes the subject of an Infringement
Claim, Owner will permit Contractor, at Contractor's option and expense for all associated costs,
either (A) to procure the right for such Owner Indemnitees to continue to use the System,
Equipment or Documentation, or part thereof, or (B) to replace or modify the System, Equipment
or Documentation, or any part thereof, with another system, equipment or documentation of
comparable quality and performance capabilities which is non -infringing, provided such
replacement or modification does not cause the System, Equipment, Documentation, or any part
thereof, to fail to comply with any of the non -infringing requirements of this Agreement,
including, but not limited to, all functionality, technical specifications and warranties herein. If
Contractor is obligated, and fails, to perform (A) or (B) of the preceding sentence within sixty
(60) days of the date of the written notice of an Infringement Claim(s) from Owner or any third
party, Owner shall have the right to take such remedial acts it determines to be reasonable to
mitigate any impairment of its use of the System or any Equipment (each a "Remedial Act").
Contractor shall indemnify the Owner Indemnitees for all reasonable amounts paid and
reasonable direct and indirect costs associated with Remedial Acts.
CONFIDENTIAL 42

25.4 Owner Indemnity. Owner shall indemnify, save harmless and defend
Contractor and its Affiliates and its and their respective directors, officers, shareholders,
employees, agents, representatives, successors and assigns (each, a "Contractor Indemnitee")
from and against, and pay, any and all Losses incurred by any Contractor Indemnitee in
connection with or arising from any claim, demand or cause of action of every kind and
character by any third party (including any Governmental Authority) for (a) physical damage to
or physical destruction of third party property, or death of or bodily injury to any person
(including any of Owner's personnel, employees or agents) caused by or arising out of or related
to Owner's performance under this Agreement and (b) any violation or alleged violation of
Applicable Laws (other than Environmental Laws) by Owner or its personnel, employees,
agents, invitees or other third parties over which it has control, but, in either case, not to the
extent caused by (i) the negligence or willful misconduct of Contractor, any Subcontractor or any
of their respective personnel, employees, agents, invitees or other third parties over which either
has control or (ii) a breach by Contractor of its obligations hereunder.
25.5 Owner Environmental Indemnity. Owner shall indemnify, save harmless
and defend the Contractor Owner Indemnitees from and against, and pay, any and all Losses
incurred by any Contractor Indemnitee in connection with or arising from any claim, demand or
cause of action of every kind and character for or by reason of (a) any presence of Hazardous
Materials on, at or under the Site caused by Owner or any of its employees, personnel, agents,
representatives, invitees or other third parties over which it has control or for which Applicable
Law would otherwise hold Contractor or any such Subcontractor liable; or (b) any presence of a
Hazardous Material on, at or under the Site in existence at any time prior to the NTP Date.
25.6 Indemnity Procedures. If any claim is brought against a Party with respect
to which such Party has a right to claim for indemnification under this Article 25 (in such
capacity, the "Indemnified Party'), then the Indemnified Party shall (i) promptly notify the other
party (in such capacity, the "Indemnifying Party") thereof in writing of the existence of such
claim and promptly deliver copies of any and all documents served on or otherwise received by
the Indemnified Party with respect to such claim (rovided, however, that any failure to promptly
notify the Indemnifying Party or deliver such copies will not relieve the Indemnifying Party from
any obligation hereunder except to the extent that the Indemnifying Party is materially
prejudiced by such failure), (ii) allow the Indemnifying Party to assume sole control over the
defense of such claim with counsel reasonably acceptable to the Indemnified Party (unless in the
opinion of counsel for the Indemnified Party there is a conflict of interest between the Parties
with respect to such claim) and (iii) provide, at the Indemnifying Party's cost and expense,
assistance and information reasonably requested from time to time, by the Indemnifying Party.
If the Indemnifying Party does not assume the defense of the Indemnified Party, or if a conflict
precludes the Indemnifying Party from assuming the defense, then the Indemnifying Party shall
reimburse the Indemnified Party on a monthly basis for the Indemnified Party's defense through
separate counsel of the Indemnified Parry's choice, provided such counsel shall be reasonably
acceptable to the Indemnifying Party. Even if the Indemnifying Party assumes the defense of the
Indemnified Party, the Indemnified Party, at its sole option, may monitor the defense, at its own
expense, with counsel of its own choice without relieving the Indemnifying Party of any of its
obligations hereunder. No Party shall settle or agree to settle any claim without the prior written
consent of the other Party (not to be unreasonably withheld, conditioned or delayed).
CONFIDENTIAL 43

26. Limitation of Liability.
26.1 No Consequential Damages. EXCEPT (A) IN CASES OF GROSS
NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT OF A PARTY OR (B) TO THE
EXTENT THE PAYMENT OF ANY DELAY LIQUIDATED DAMAGES BY CONTRACTOR
OR THE PAYMENT OF ANY AMOUNTS BY A PARTY PURSUANT TO SUCH PARTY'S
INDEMNITY OBLIGATION UNDER ARTICLE 25 COULD OTHERWISE BE DEEMED TO
BE SUCH DAMAGES, IN NO EVENT SHALL EITHER PARTY BE LIABLE, WHETHER
BASED ON CONTRACT (INCLUDING BREACH, WARRANTY, INDEMNITY) OR TORT
(INCLUDING FAULT, NEGLIGENCE AND STRICT LIABILITY), UNDER ANY
WARRANTY OR OTHERWISE, RELATING TO OR ARISING OUT OF THE WORK OR
THIS AGREEMENT, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE TERMS OF
THIS AGREEMENT, INCLUDING LOST PROFITS OR REVENUES, COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, INCLUDING
REPLACEMENT POWER, OR BUSINESS INTERRUPTION, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
26.2 Maximum Total Liability. NOTWITHSTANDING ANY OTHER
PROVISION TO THE CONTRARY, WHETHER AN ACTION OR CLAIM IS BASED ON
WARRANTY, CONTRACT (INCLUDING BREACH, WARRANTY, INDEMNITY), TORT
(INCLUDING FAULT, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, UNDER
NO CIRCUMSTANCE SHALL EITHER PARTY'S TOTAL AGGREGATE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE CONTRACT
PRICE (THE "MAXIMUM LIABILITY AMOUNT"); PROVIDED. HOWEVER THAT THE
MAXIMUM LIABILITY AMOUNT SHALL NOT APPLY TO, AND NO CREDIT SHALL BE
ISSUED AGAINST THAT LIMITATION FOR (A) CASES OF GROSS NEGLIGENCE,
FRAUD OR WILLFUL MISCONDUCT OF A PARTY OR (B) A PARTY'S INDEMNITY
OBLIGATIONS HEREUNDER FOR THIRD PARTY CLAIMS. FOR THE PURPOSE OF
DETERMINING WHETHER THE MAXIMUM LIABILITY AMOUNT HAS BEEN MET,
INSURANCE PROCEEDS RECEIVED FROM THE INSURANCE POLICIES REQUIRED
TO BE MAINTAINED UNDER THIS AGREEMENT SHALL NOT BE INCLUDED.
27. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
27.1 Governing Law. The formation, interpretation and performance of this
Agreement shall be governed by and construed in accordance with the laws of the State of North
Carolina, without regard to its conflicts of laws principles.
27.2 Consent to Jurisdiction. For all purposes of any litigation arising out of or
related to this Agreement, and for all purposes of any litigation arising out of or relating to the
transactions contemplated by this Agreement, each Party hereto submits to the exclusive
jurisdiction of the courts of the State of North Carolina and the federal courts of the United
States sitting in the State of North Carolina (or, if such courts do not accept such jurisdiction,
then in any state or federal court in the United States of proper jurisdiction), and hereby
irrevocably and unconditionally agrees that any such litigation may be heard and determined in
such state court or such federal court. Each Party agrees that a final judgment in any such
CONFIDENTIAL. 44

litigation may be enforced in any other jurisdiction by suit on the judgment or in any other
manner provided by law.
27.3 Certain Waivers. Each Party irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so: (a) any objection which it may now or
hereafter have to the laying of venue of any litigation arising out of or relating to this Agreement
or any related matter in any state or federal court located in North Carolina; and (b) the defense
of an inconvenient forum to the maintenance of such Proceeding in any such court.
27.4 Service of Process. Each Party irrevocably consents to service of process
by registered mail, return receipt requested, at its address as provided in Article 31. Nothing in
this Agreement will affect the right of any Party hereto to serve process in any other manner
permitted by law.
27.5 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
LAW, EACH PARTY HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING TO ENFORCE OR INTERPRET THE PROVISIONS OF THIS
AGREEMENT OR THAT OTHERWISE RELATES TO THIS AGREEMENT.
28. Liens.
28.1 Liens. Contractor shall keep the System, the Site, the Equipment and all
other structures and equipment at the Site free from all Liens (other than such Liens arising from
acts or omissions of Owner, including Liens arising due to the non-payment by Owner of an
invoice or claims against or arising through Owner), and shall promptly notify Owner of any
such Liens.
28.2 Discharge or Bond. Without limiting Contractor's obligations under
Article 25, Contractor shall take prompt steps to discharge or bond any Lien (other than such
Liens arising from acts or omissions of Owner, including such Liens arising due to the non-
payment by Owner of an invoice or claims against or arising through Owner). If Contractor fails
to so discharge or promptly bond any such Lien, Owner shall have the right, upon notifying
Contractor in writing and providing Contractor reasonable time to discharge or bond the Lien, to
take any and all reasonable actions and steps to satisfy, defend, settle or otherwise remove the
Lien at Contractor's expense, including reasonable attorneys' fees, costs and expenses. Owner
shall have the right to deduct and offset any expenses so incurred from any payment due, or
which may become due, to Contractor under this Agreement or to recover those expenses from
Contractor. Contractor shall have the right to contest any Lien, provided that it first must
provide to the lien holder, a court or other third Person, as applicable, a bond or other assurances
of payment necessary to remove such Lien in accordance with the Applicable Laws of the State
of North Carolina.
29. Waiver. The failure of either Party to insist upon or enforce, in any instance,
strict performance by the other Party of any of the terms of this Agreement or to exercise any
rights herein conferred shall not be construed as a waiver or relinquishment to any extent of its
right to assert, or rely upon any such terns or rights on any future occasion. No waiver shall be
valid unless stated in writing and executed by the Party so waiving.
CONFIDENTIAL 45

30. Dispute Resolution.
30.1 Good Faith Negotiations. In the event that a bona fide good faith dispute,
arises out of or is in connection with this Agreement, including any dispute regarding the
existence or validity of this Agreement, performance or termination (a "Dispute"), which either
Party has notified to the other, senior management personnel from both Contractor and Owner
shall meet and diligently attempt in good faith to resolve the Dispute for a period not to exceed
thirty (30) days, unless otherwise mutually agreed upon by the Parties, following one Party's
written request to the other Party for such a meeting. If, however, either Party refuses or fails to
so meet, or the Dispute is not resolved by negotiation, the provisions of Section 30.2 shall apply.
30.2 Right to Pursue Other Resolution. If the last sentence of Section 30.1
shall be applicable, either Party may pursue such remedies as are available to it at law or in
equity in accordance with Section 27. Notwithstanding the foregoing, nothing in this Article 30
shall prevent a Party from pursuing immediate injunctive relief to maintain the status quo or
prevent irreparable harm with respect to any Dispute. .
30.3 Continued Performance. Subject to the provision of Sections 16.5 and
20.1 permitting Contractor to suspend performance as described therein, the commencement of
any dispute resolution procedures specified in this Article 30 shall not excuse Contractor or
Owner from continuing to perform its obligations under this Agreement. Contractor and Owner
shall continue to perform their obligations hereunder in good faith during any ongoing dispute
resolution procedure until final resolution of such dispute is achieved; provided that Contractor is
being compensated for the Work pursuant to the terms of this Agreement and provided that the
Parties agree that such duties and obligations can be safely and prudently performed.
31. Notices and Demands. Except as otherwise expressly provided herein (including
with respect to Section 19.3, any notice, request, demand or other communication required or
permitted under this Agreement, shall be deemed to be properly given by the sender and received
by the addressee if made in writing and (a) delivered in person, (b) mailed, postage prepaid,
either by registered or certified mail, return receipt requested, (c) sent by reputable overnight
express courier, or (d) transmitted by e-mail if receipt of such transmission by e-mail is
specifically acknowledged by the recipient (automatic responses not being sufficient for
acknowledgment, addressed in each case to the addresses set forth below, or to any other address
either Party shall designate in a written notice to the other Party:
Owner: Bethel Price Solar, LLC
c/o DEGS Solar, LLC
139 E. 4th Street
Cincinnati, Ohio 45202
Attention: Brian K. Stallman, Vice President
Telephone: [phone]
Email: [e-mail]
with a copy to
Duke Energy Corporation
CONFIDENTIAL 46

139 E.4th Street
Cincinnati, Ohio 45202
Attention: George Dwight, Deputy General Counsel
Telephone: [phone]
Email: george.dwight duke-enere com
Contractor: SunEnergyl, LLC
192 Raceway Drive
Moresville, North Carolina 28117
Attention: Kenny Habul, Chief Executive Officer
Telephone: [phone]
Email: kennvct7isunenergyl com
32. Nondisclosure: Publicity. Each Party (the "Receiving Party") shall not use for
any purpose other than performing the Work under this Agreement or divulge, disclose, produce,
publish, or permit access to, without the prior written consent of the other Party (the "Disclosing
Party"), any confidential information of the Disclosing Party ("Confidential Information").
Confidential Information includes, without limitation, the terms of this Agreement and the
Schedules and Exhibits attached hereto, all information or materials of the Disclosing Party or its
Affiliates prepared in connection with the Work or this Agreement or otherwise owned or held
by the Disclosing Party or any of its Affiliates, including designs, drawings, specifications,
techniques, models, data, documentation, source code, object code, diagrams, flow charts,
research, development, processes, procedures, know-how, manufacturing, development or
marketing techniques and materials, development or marketing timetables, strategies and
development plans, customer, supplier or personnel names and other information related to
customers, suppliers or personnel, pricing policies and financial information, and other
information of a similar nature, whether or not reduced to writing or other tangible form, and any
other trade secrets. Confidential Information does not, however, include (a) information that the
Receiving Party can demonstrate was available to the Receiving Party on a nonconfidential basis
prior to its disclosure by the Disclosing Party, provided that the source of such information was
not known, after reasonable inquiry, by the Receiving Party to be bound by a confidentiality
agreement with or other legal obligation of confidentiality to the Disclosing Party with respect to
such information; (b) information that is or becomes generally available to the public other than
as a result of a disclosure by the Receiving Party in breach of this Agreement; or (c) information
that becomes available to the Receiving Party on a nonconfidential basis from a Person other
than the Disclosing Party, provided that such Person was not known, after reasonable inquiry, by
the Receiving Party to be bound by a confidentiality agreement with or other legal obligation of
confidentiality to the Disclosing Party with respect to such information. The Receiving Party
shall use the higher of the standard of care that the Receiving Party uses to preserve its own
confidential information or a reasonable standard of care to prevent unauthorized use or
disclosure of such confidential information. Notwithstanding anything herein to the contrary, the
Receiving Party has the right to disclose Confidential Information without the prior written
consent of the Disclosing Party: (i) to a counterparty to any of the Project Agreements that is not
a party hereto, if reasonably required by the applicable terms of any Project Agreement, provided
that, as soon as practicable after such disclosure, the Receiving Party shall inform the Disclosing
CONFIDENTIAL 47

Party thereof, (ii) as required by any court or other Governmental Authority, or by any securities
exchange on which the shares of any Party are listed, (iii) as otherwise required by Applicable
Law, (iv) as required in connection with any government or regulatory filings, including without
limitation, filings with any regulating authorities covering the relevant financial markets, (v) to
its attorneys, accountants, financial advisors or other agents, in each case bound by
confidentiality obligations, (vi) to banks, investors and other financing sources and their
advisors, in each case bound by confidentiality obligations; or (vii) in connection with an actual
or prospective merger or acquisition or similar transaction where the party receiving the
Confidential Information is bound by confidentiality obligations. If a Receiving Party believes
that it will be compelled by a court or other Governmental Authority to disclose Confidential
Information of the Disclosing Party, it shall give the Disclosing Party prompt written notice so
that the Disclosing Party may determine whether to take steps to oppose such disclosure at
Disclosing Party's discretion and sole cost.
Subject to the foregoing and in accordance with Article 40, the Parties shall
jointly agree upon the necessity and content of any press release in connection with the matters
contemplated by this Agreement. Any other publication, news release or other public
announcement by a Party relating to this Agreement or to the performance hereunder shall first
be reviewed and consented to in writing by the other Party, such consent not to be unreasonably
withheld.
33. Time of Essence. Time is expressly agreed to be of the essence of this Agreement
and each, every and all of the terms, conditions and provisions herein.
34. Validity. The invalidity, in whole or in part, of any provisions hereof shall not
affect the validity of any other provisions hereof.
35. Survival. Articles 1, 2, 4, 2 16, 17, 18, 19, 21 22.1, 22.2, 23, 25 26, 27, 28, 29,
30 31, 32 35 and 43 and the schedules referenced in such Sections shall survive termination of
this Agreement and shall survive final payment to Contractor following Final Completion.
36. Binding Effect. This Agreement shall be binding on the Parties hereto and on
their respective permitted successors, heirs and assigns.
37. No Oral Modifications. No oral or written amendment or modification of this
Agreement by any officer, director, agent, employee or representative of Contractor or Owner,
either before or after execution of this Agreement, shall be of any force or effect unless such
amendment or modification is in writing and is signed by an authorized officer or representative
of the Party to be bound thereby.
38. Joint Drafting. The Parties have participated jointly in the negotiation and
drafting of this Agreement; accordingly, in the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no
presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any provisions of this Agreement.
39. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which shall constitute one and the same
CONFIDENTIAL 48

instrument. Any counterpart may be delivered by facsimile transmission or by electronic
communication in portable document format (. dp _)f or tagged image format (.t ,, and the Parties
agree that their electronically transmitted signatures shall have the same effect as manually
transmitted signatures.
40. Announcements and Publications. Each Party shall coordinate with the other
Party with respect to, and provide advance copies to such other Party for review of, the text of
any proposed announcement or publication that includes any non-public information concerning
the Work prior to the dissemination thereof to the public or to any Person other than
Subcontractors or advisors of the Party proposing such announcement, in each case, who agree to
keep such information confidential. If such other Party delivers written notice to the Party
proposing such announcement rejecting any such proposed announcement or publication within
five (5) Business days after receiving such advance copies, the Party proposing such
announcement shall not make such public announcement or publication; provided, however that
either Party may disseminate or release such information in response to requirements of
Governmental Authority to the extent required by Applicable Law or the rules of any securities
exchange on which the shares of a Party are traded.
41. Entire Agreement. This Agreement, including any Schedules and Exhibits
attached hereto and incorporated herein by this reference, constitutes the complete and entire
Agreement between the Parties and supersedes any previous communications, representations or
Agreements, whether oral or written, with respect to the subject matter hereof. There are no
additions to, or deletions from, or changes in, any of the provisions hereof, and no
understandings, representations or Agreements concerning any of the same, which are not
expressed herein, unless stated below. THE PARTIES HEREBY AGREE THAT NO TRADE
USAGE, PRIOR COURSE OF DEALING OR COURSE OF PERFORMANCE UNDER THIS
AGREEMENT SHALL BE A PART OF THIS AGREEMENT OR SHALL BE USED IN THE
INTERPRETATION OR CONSTRUCTION OF THIS AGREEMENT.
42. No Agency. This Agreement is not intended, and shall not be construed, to create
any association, joint venture, agency relationship or partnership between the Parties or to
impose any such obligation or liability upon either Party. Neither Party shall have any right,
power or authority to enter into any agreement or undertaking for, or act as or be an agent or
representative of, or otherwise bind, the other Party.
43. Priority of Documents. In the event of conflicting provisions between any of the
Contract Documents, the provisions shall govern in the following priority: first, with respect to
technical matters regarding interconnection requirements, the Interconnection Agreement;
second, duly executed Change Orders and amendments to this Agreement (to the extent not
superseded by a subsequent Change Order or amendment); third, this Agreement and fourth, the
other Contract Documents; provided that in the event of any conflict between the provisions of
the Contract Documents and the Project Agreements, the provisions of the Project Agreements,
in effect on the Effective Date (except for amendments thereto approved in writing by
Contractor) shall control.
44. Assignment.
CONFIDENTIAL 49

44.1 Neither Party shall assign this Agreement or any of its rights hereunder without
the prior written consent of the other Party, which consent shall not be unreasonably withheld,
denied, conditioned or delayed. Notwithstanding the foregoing, Owner may, upon written
notice, without the need for consent from Contractor (and without relieving itself from liability
hereunder), transfer, pledge or assign any of its rights but not its obligations hereunder (a) as
security for any financing or (b) to an affiliated special purpose entity created for the financing or
tax credit purposes related to the System. Notwithstanding the foregoing, either Party may (i)
transfer or assign this Agreement to any person or entity succeeding to all or substantially all of
the assets of such Party; provided, however, that any such assignee shall agree to be bound by
the terms and conditions hereof; or (ii) assign its rights under this Agreement to a successor
entity in a merger or acquisition transaction; provided, however, that any such assignee shall
agree to be bound by the terms and conditions hereof. Any assignment made in contravention of
this clause shall be void and unenforceable.
44.2 With respect to an assignment pursuant to clause (a) in the second sentence of
Section 44.1 above, Contractor acknowledges and agrees that, upon receipt of written direction
by a financing -transaction assignee or secured party of Owner ("Lender'), and notwithstanding
any instructions to the contrary from Owner, Contractor will recognize Lender, or any third party
to whom Lender has reassigned the rights of Owner under this Agreement, as the proper and
lawful owner under this Agreement and fully entitled to receive the rights and benefits of Owner
hereunder so long as Lender (or its assignee) timely performs the obligations of Owner
hereunder and Contractor shall tender performance of any and all other covenants by Contractor
under this Agreement to and for the benefit of Lender and as the Lender may direct in the future.
Contractor shall be protected and shall incur no liability in acting or proceeding in good faith
upon any such foregoing written notice and direction by Lender which Contractor shall in good
faith believe (a) to be genuine and (b) a copy of which to have been delivered to Owner.
Contractor shall be under no duty to make any investigation or inquiry as to any statements
contained or matters referred to in any such foregoing notice and direction, but may accept and
rely upon them as conclusive evidence of the truth and accuracy of such statements.
[Signature page follows]
CONFIDENTIAL SO

IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Engineering, Procurement and Construction Agreement as of the Effective Date.
BETHEL PRICE SOLAR, LLC
Bv:
Name: Tam McNay
Title: Vice President
SUNENERGYI,LLC
By:
Name: Kenny Habul
Title: Chief Executive Officer
Signature Page to Engineering, Procurement and Construction Agreement
CONFIDENTIAL 51

IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Engineering, Procurement and Construction Agreement as of the Effective Date.
BETHEL PRICE SOLAR, LLC
By:
Name: Tom McNay
Title: VicePeesident
SUNENERGYI,LLC
By.
Name: Kenny Habul
Title: Chief Executive Officer
Signature Page to Engineering, Procurement and Construction Agreement
CONFIDENTIAL 51

Attachment 7
EPC Agreement Schedule 5.14 for Bethel Price Solar
Confidential Information

C0410jen4i41
Schedule 5.14
Permits
Permit/Approval
Permitting Authority
Permit q
Approval
Status
Named
Responsibility
Date
Parties
Pill County inspections
Site Plan
department
Approval
1717 W 51h
Ifapplicable
Contractor
Street Greenville, NC
27834-1696
Pitt County inspections
department
Grading Permit
1717W 5th
Ifapphcable
Contractor
Street Greenville, NC
27834-1696
Right -Of -Way
(ROW) Permit
N A
Not necessary
NA
Stone Water
Pollution
Prevention Plan -
NCDENR
Owner
Notice of Intent
Permit (SWPPP
NOI)
Building Pernil
N A
Not necessary for
NA
ground mounted PV
Pitt County inspections
department
Electrical Permit
1717 W 5lh
Interconnect
Street Greenville, NC
Contractor
27834-1696
Pitt County inspections
department
Electrical Perrin
1717 R5dt
PV System
Street Greenville, NC
Contractor
27834-1696
Erosion and
Sedimentation
NCDENR
Owner
Control Plan
Dnvewny Pennn
DOT
Owner

611 Washington St, Washington, NC 27889 to 159D Cooper Hill Rd, Windsor, NC 2798... Page 1 of 2
Go gle Maps to159D CooperHi II da Windsor,NC279839 Drive37.Omit es,4 5 min
611 Washington St
Washington, NC 27889
Take Carolina Ave to US-17 N
t 1. Head northwest
r' 2. Turn right onto Carolina Ave
3. Continue straight onto US-17 BUS S/Carolina Ave
Follow US-17 N and US-13 N to US-13 BUS N/US-17 N in Windsor
& 4. Turn right onto US-17 N
5. Turn right to merge onto US-13 N/US-17 N/US-64 E toward Plymouth
e Continue tofollo wUS- 13 N/US-17N
Take S King St to your destination
r' 6. Turn right onto US-13 BUS N/US-17 N
e Continue tofollo wUS- 17 N
N 7. Turn right onto S King St
r' 8. Turn right onto Cooper Hill Rd
r 9. Turn right
159D Cooper Hill Rd
Windsor, NC 27983
These directions are for planning purposes only. You may find that construction
projects, traffic, weather, or other events may cause conditions to differ from the
map results, and you should plan your route accordingly. You must obey all signs or
notices regarding your route.
3min (0.9mi )
0.1 mi
374ft
0.7 mi
34min (31.9mi )
17.7 mi
14.2 mi
9min (4.2mi )
1 0 mi
1.2 mi
0.6 mi
1.4 mi
https://www.google.com/maps/dir/35.5593482,-77.0591381 /35.963957,-76.910'7558/@35.... 6/14/2017