ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT between HIGH PLAINS RANCH II, LLC, and SUNPOWER CORPORATION, SYSTEMS September 30, 2011

CONFIDENTIAL TREATMENT REQUESTED

CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

between

HIGH PLAINS RANCH II, LLC,

and

SUNPOWER CORPORATION, SYSTEMS

September 30, 2011

TABLE OF CONTENTS

Page

1.	DEFINITIONS AND RULES OF INTERPRETATION		1
	1.1	Definitions	1
	1.2	Exhibits	21
	1.3	Interpretation	21
	1.4	Headings	22
	1.5	Conflicts in Documentation	23
2.	RESPONSIBILITIES OF OWNER		23
	2.1	Owner Representative	23
	2.2	Operating Personnel	23
	2.3	Applicable Permits	23
	2.4	Interconnection Facilities	23
	2.5	Owner-Provided Information	23
	2.6	Owner Performance Security	23
	2.7	Owner's Separate Contractors	24
	2.8	Taxes and Permit Expenses	24
	2.9	Access to Site	24
	2.10	Cooperation	24
3.	RESPONSIBILITIES OF CONTRACTOR		24
	3.1	General	24
	3.2	Performance of Work	25
	3.3	Design and Construction of PV Power Plant	25
	3.4	Contractor's Project Manager	25
	3.5	Utilities and Services	25
	3.6	Inspection	26
	3.7	Organization	26
	3.8	Contractor-Acquired Permits	26
	3.9	Hazardous Materials Disposal System	26
	3.10	Maintenance of Site	27
	3.11	Site Security	27
	3.12	Safety	27
	3.13	Quality Assurance Programs	28
	3.14	Contractor Deliverables	28
	3.15	Training of Operating Personnel	28
	3.16	Commissioning Personnel	28
	3.17	***	29
	3.18	Shipping	29
	3.19	Xxxxx-Xxxxx Act Requirements	29
	3.20	Escrow Agreement	29
	3.21	Subordination Agreement	29
	3.22	Contractor Credit Support	30

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-i-

TABLE OF CONTENTS

(continued)

Page

4.	COVENANTS, WARRANTIES AND REPRESENTATIONS		30
	4.1	Contractor	30
	4.2	Owner	33
5.	COST OF WORK		34
	5.1	Contract Price	34
	5.2	Taxes	34
	5.3	Fiscal Agreement Costs	35
	5.4	Cash Grant Intention and Turnover	35
6.	TERMS OF PAYMENT		35
	6.1	Monthly Invoicing	35
	6.2	Progress Assessment	36
	6.3	Contractor's Invoices	36
	6.4	Owner Review	37
	6.5	Payments	37
	6.6	Retention	38
	6.7	Final Contractor's Invoice	39
	6.8	Disputes Regarding Payments	39
7.	COMMENCEMENT AND SCHEDULING OF THE WORK; DESIGN REVIEW		40
	7.1	Notice to Proceed	40
	7.2	Design Review	40
	7.3	CPM Schedule Submission	40
	7.4	Owner Review of the CPM Schedule	41
	7.5	Progress Reporting, Monthly Updates to CPM Schedule	41
	7.6	Thirty Day Look Ahead Schedule	41
	7.7	Form of Submittals	41
	7.8	Delay Response Plan	41
8.	FORCE MAJEURE; EXCUSABLE EVENT		43
	8.1	Certain Events	43
	8.2	Notice of Force Majeure Event and Excusable Event	43
	8.3	Scope of Suspension; Duty to Mitigate	43
	8.4	Contractor's Remedies	44
	8.5	Termination Due to Force Majeure and Excusable Event	44
9.	SUBCONTRACTORS AND SUPPLIERS		45
	9.1	Subcontracts Generally	45
	9.2	Use of Specified Suppliers and Specified Subcontractors	45

-ii-

TABLE OF CONTENTS

(continued)

Page

	9.3	Assignment	45
	9.4	Supply of Inverter Equipment	46
	9.5	Supply of Photovoltaic Modules	46
	9.6	Separate Owner Purchase of Photovoltaic Modules and Inverter Equipment	46
10.	LABOR RELATIONS		47
	10.1	General Management of Employees	47
	10.2	Project Labor Agreement	47
	10.3	Labor Disputes	47
	10.4	Personnel Documents	47
	10.5	Key Personnel	47
	10.6	Replacement of Employees and Other Persons at Owner's Request	48
11.	INSPECTION		48
	11.1	Inspection	48
12.	SITE CONDITIONS		48
	12.1	Assumed Site Conditions	48
	12.2	Additional Site Condition Information	48
13.	PERFORMANCE GUARANTEE; COMMISSIONING; TESTING		48
	13.1	Performance Guarantee and Other Requirements	48
	13.2	Commissioning Procedures	48
	13.3	Performance Acceptance Test Procedures and PV Power Plant Functional Test Procedures	48
14.	SYSTEMS, PERFORMANCE ACCEPTANCE TESTS, AND COMPLETION		49
	14.1	System Turnover	49
	14.2	Acceptance Tests	51
15.	BLOCK, PHASE AND PV POWER PLANT SUBSTANTIAL COMPLETION		52
	15.1	Block Completion	52
	15.2	Phase Substantial Completion	54
	15.3	PV Power Plant Substantial Completion	54
	15.4	Notice of Substantial Completion	55
	15.5	Final Completion	56
	15.6	Notice of Final Completion	56
	15.7	Contractor's Access After Substantial Completion	56
16.	LIQUIDATED DAMAGES; EARLY COMPLETION BONUS		57

-iii-

TABLE OF CONTENTS

(continued)

Page

	16.1	Delay Liquidated Damages	57
	16.2	Bonus Payment for Early Completion	59
	16.3	Payment of Delay Liquidated Damages and Bonus Payment	59
	16.4	Buy-Down Not Available for Minimum Performance Guarantee	59
	16.5	Liquidated Damages for Failure to Satisfy Performance Guarantee	59
	16.6	Contractor Election	59
	16.7	Extension of Cure Period	61
	16.8	Sole Remedy; Liquidated Damages Not a Penalty	61
	16.9	Enforceability	62
	16.10	Achievement of Performance Guarantee; Reimbursement of Liquidated Damages	62
17.	CHANGES IN THE WORK		63
	17.1	Change In Work	63
	17.2	By Owner	63
	17.3	Adjustment to CPM Schedule Due to Force Majeure Events or Excusable Events	63
	17.4	Preparation of Change In Work Form	64
	17.5	Execution of Change In Work Form	64
	17.6	No Obligation or Payment Without Executed Change In Work Form	64
	17.7	Owner Directives	64
	17.8	Disputed Changes In Work	65
	17.9	Change for Contractor's Convenience	65
18.	WARRANTIES CONCERNING THE WORK		65
	18.1	Defect *** Warranties	65
	18.2	Warranty Periods	66
	18.3	Exclusions	66
	18.4	Enforcement by Owner; Subcontractor Warranties	67
	18.5	Correction of Defects	68
	18.6	Limitations On Warranties	69
19.	TITLE		69
	19.1	Title; No Encumbrances	69
	19.2	Transfer	70
	19.3	Custody During Performance	70
20.	DEFAULTS AND REMEDIES		70
	20.1	Contractor Events of Default	70
	20.2	Owner's Rights and Remedies	71
	20.3	Owner Event of Default	72
	20.4	Contractor's Rights and Remedies	73

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-iv-

TABLE OF CONTENTS

(continued)

Page

	20.5	Termination Payment	74
21.	TERMINATION OR SUSPENSION		74
	21.1	Termination and Damages for Contractor Event of Default	75
	21.2	Owner's Right to Elect to Assume Obligations with Subcontractors	75
	21.3	Contractor Conduct	75
	21.4	Suspension for Cause	75
	21.5	Claims for Payment	77
	21.6	Release of Punch List Holdback upon Termination	77
22.	INSURANCE		77
	22.1	General	77
	22.2	Contractor's Insurance (General Coverages)	78
	22.3	Owner's Insurance (General Coverages)	79
	22.4	Builder's All-Risk Insurance	80
	22.5	Endorsements Applicable to Contractor Insurance	81
	22.6	Subcontractor Insurance	82
	22.7	Contractor's Certificates	82
	22.8	Owner's Certificates	82
	22.9	Descriptions Not Limitations	83
	22.10	Cost of Premiums.	83
	22.11	Other Deductibles	83
	22.12	Both Party's Rights to Provide Insurance	83
	22.13	No Limitation of Liability	84
	22.14	Other Terms and Provisions	84
23.	RISK OF LOSS OR DAMAGE		84
	23.1	Care, Custody and Control	84
	23.2	Risk of Loss	84
24.	INDEMNIFICATION		84
	24.1	Comparative Fault	84
	24.2	By Contractor	84
	24.3	By Owner	86
	24.4	Patent Infringement and Other Indemnification Rights	87
	24.5	Claim Notice	88
	24.6	Survival of Indemnity Obligations	89
	24.7	Treatment of Indemnification Payments	89
	24.8	Contractor Lien Indemnity	90
25.	CONFIDENTIAL INFORMATION		90
	25.1	Confidential Information	90

-v-

TABLE OF CONTENTS

(continued)

Page

	25.2	Use of Confidential Information	91
	25.3	Remedies for Breach of Confidentiality Obligations	92
26.	ASSIGNMENT		93
	26.1	Assignment to Other Persons	93
	26.2	Indemnitees; Successors and Assigns	93
27.	HAZARDOUS MATERIALS		94
	27.1	Use by Contractor	94
	27.2	Remediation by Contractor	94
	27.3	Notice of Hazardous Materials	94
	27.4	Pre-Existing Contamination	95
28.	NON-PAYMENT CLAIMS		95
29.	NOTICES AND COMMUNICATIONS		96
	29.1	Requirements	96
	29.2	Representatives	97
	29.3	Effective Time	97
30.	LIMITATIONS OF LIABILITY AND REMEDIES		97
	30.1	Consequential Damages	97
	30.2	Limitations on Contractor's Liability	98
	30.3	Limitation on Owner's Liability	99
31.	DISPUTES		99
	31.1	Dispute Resolution	99
	31.2	Referral to Contractor's Project Manager and Owner Representative	99
	31.3	Referral to Authorized Officers	99
	31.4	Independent Expert Resolution	100
	31.5	Arbitration Resolution	101
	31.6	Continuation of Work During Dispute	101
32.	INTELLECTUAL PROPERTY		101
	32.1	Ownership	101
	32.2	Irrevocable License	101
	32.3	Transfer and Assignment	102
	32.4	Subcontractor Licenses	102
	32.5	Non-Exclusive License	102
33.	MISCELLANEOUS		102

-vi-

TABLE OF CONTENTS

(continued)

Page

	33.1	Severability	102
	33.2	Governing Law; Venue; Stipulations	102
	33.3	Survival of Termination	103
	33.4	No Oral Modification	103
	33.5	No Waiver	103
	33.6	Review and Approval	103
	33.7	Third Party Beneficiaries	103
	33.8	Further Assurances	103
	33.9	Financing Cooperation	104
	33.10	Record Retention	104
	33.11	Binding on Successors	104
	33.12	Merger of Prior Contracts	104
	33.13	Counterparts	105
	33.14	Attorneys' Fees	105
	33.15	Announcements; Publications	105
	33.16	Independent Contractor	105
	33.17	Audit	105
	33.18	Independent Engineer	106

-vii-

EXHIBITS

Exhibit A Statement of Work

A-1    Contractor's Statement of Work

A-2    Owner-Provided Facilities, Services and Information

A-3 Division of Responsibilities Table

Exhibit B Contractor Deliverables

Exhibit C Permits

C-1 Owner-Acquired Permits

C-2 Contractor-Acquired Permits

C-3 Division of CUP Responsibilities Table

Exhibit D Site Safety Plan

D-1 Contractor Safety Program

Exhibit E Operating Personnel Training Program

Exhibit F Lien Waiver and Releases

F-1 Conditional Waiver and Release Upon Progress Payment

F-2 Unconditional Waiver and Release Upon Progress Payment

F-3 Conditional Waiver and Release Upon Final Payment

F-4 Unconditional Waiver and Release Upon Final Payment

Exhibit G Schedule Milestones

Exhibit H Testing Process

X-0     Xxxxx Xxxxxxxx Xxxx

X-0    Xxxxx and PV Power Plant Capacity Test

X-0    XXX Xxxxx Xxxxxxxx Certification Procedure

H-4    PV Power Plant Functional Test

Exhibit I Progress Payment Schedule

I-1    Progress Payment Schedule

I-2    Cumulative Maximum Payment Amounts

Exhibit J Legal Description of Site

Exhibit K Site Plan

Exhibit L Specified Suppliers and Specified Subcontractors

Exhibit M Commissioning Procedures

Exhibit N Example Calculation of Holdback Release

Exhibit O Example Calculations of Liquidated Damages

Exhibit P ***

Exhibit Q List of Environmental Reports

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

Exhibit R Module Warranty Terms and Conditions

Exhibit S Change In Work Form

Exhibit T Block Descriptions

Exhibit U Form of Contractor's Invoice

Exhibit V Single Line Electrical Drawing

Exhibit W Quality Assurance Program

Exhibit X X-1 Block Substantial Completion Certificate

X-2 Phase Substantial Completion Certificate

X-3 PV Power Plant Substantial Completion Certificate

X-4 Final Completion Certificate

Exhibit Y ***

Exhibit Z Project Labor Agreement

Z-1 Assignment of PLA

Exhibit XX Xxxxx Xxxxx Act Requirements

Exhibit BB Form of Escrow Agreement

Exhibit CC County Fiscal Agreement

Exhibit DD Form of Subordination Agreement

Exhibit EE Form of Material and Equipment Supply Agreement

Exhibit FF Contractor Letter of Credit

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

This ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT is made and entered into as of this 30th day of September, 2011 (the “Effective Date”), between High Plains Ranch II, LLC, a Delaware limited liability company (“HPR II” or “Owner”) and SunPower Corporation, Systems, a Delaware corporation (“Contractor”). Each entity is sometimes individually referred to herein as a “Party” and the entities are sometimes collectively referred to herein as the “Parties.”

RECITALS

WHEREAS, HPR II is developing a 250 MW AC design capacity photovoltaic power plant at the Site (as hereinafter defined) (the “PV Power Plant”);

WHEREAS, Owner has negotiated and agreed upon terms and conditions for the sale of the electrical energy generated by its photovoltaic power project, together with related attributes of the electrical energy and environmental attributes, to Pacific Gas and Electric Company (“PG&E”) pursuant to the Power Purchase Agreements (as hereinafter defined); and

WHEREAS, Owner and Contractor entered into that certain Preliminary Construction Agreement dated August 4, 2011 (the “PCA”), for the purposes of performing certain preliminary work necessary to the construction of the PV Power Plant;

WHEREAS, the Parties intend this Agreement to supersede the PCA, and all of the rights and liabilities of the Parties thereunder;

WHEREAS, Owner desires to engage Contractor to design, engineer, procure certain equipment and materials for, install, construct, test, commission the PV Power Plant, and to perform certain related work, and Contractor desires to provide such materials and services, all in accordance with the terms and conditions set forth in this Agreement;

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

AGREEMENT

1. DEFINITIONS AND RULES OF INTERPRETATION

1.1    Definitions. For the purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, the following terms shall have the following meanings.

“AC” or “ac” means alternating current.

-1-

“Affiliate” means, with respect to a specified Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is under common Control with, or is Controlled by such specified Person.

“After-Tax Basis” shall mean, with respect to any indemnified amount to or for the benefit of a person (the “recipient”) that is required to be paid on such basis, the indemnified amount increased so that, after deduction of the amount of all Taxes (assuming for this purpose that the recipient of such payment is a U.S. corporation whose only taxable income arises in connection with the Project and this Agreement and is subject to taxation at the highest federal rate generally applicable to persons of the same type as the recipient for the year in which such income is taxable and at a marginal rate of state and local tax rate of (***%) required to be paid by the recipient (less any tax savings realized and the present value (determined using a discount rate equal to *** percent (***%)) of any tax savings projected to be realized as a result of the payment of the indemnified amount, in each case using the same tax rate assumptions as set forth in the immediately preceding parenthetical phrase) with respect to the receipt by the recipient of such amounts (as reasonably estimated by the recipient), such increased payment (as so reduced) is equal to the indemnified amount otherwise required to be paid.

“Agreement” means this Engineering, Procurement and Construction Agreement, including all Exhibits hereto, as the same may be modified, amended or supplemented from time to time in accordance with the terms hereof.

“Applicable Law” means and includes any statute, license, law, rule, regulation, code, ordinance, judgment, Permit Requirement, decree, writ, legal requirement or order, of any national, federal, state or local court or other Governmental Authority, and the official, written judicial interpretations thereof, applicable to the Work, the Site, the PV Power Plant or the Parties.

“Applicable Permit” means each national, state, local or other license, consent, appraisal, authorization, ruling, exemption, variance, order, judgment, decree, declaration, regulation, certification, filing, recording, permit (including, where applicable, conditional permits) or other approval with, from or of any Governmental Authority, including each and every environmental, construction, operating or occupancy permit, that is required by Applicable Law for the performance of the Work and the ownership or operation of the PV Power Plant, including those set forth on Exhibits C-1 and C-2.

“Approved Bank” means a bank (i) that has net assets of not less than $100,000,000,000 and the long term senior debt obligations of which are rated of at least “AA” or better by Standard and Poor's Rating Services, Inc. or “Aa2” or better by Xxxxx'x Investor Services, Inc. and (ii) that has an office or branch in United States.

“As-Built Drawings” means a complete set of as-built drawings prepared in accordance with Applicable Laws and which in all material respects accurately depicts and represents the completed PV Power Plant as constructed and installed.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-2-

“Assignment and Assumption Agreement” means that Assignment and Assumption Agreement dated August 17, 2011, by and between Fluor Constructors International, Inc. and the Contractor attached hereto as Exhibit Z-1.

“Authorized Officer” has the meaning set forth in Section 31.3.

“Block” means a grouping of Systems and the portion of the Work required to complete a Block, as specified in Exhibit T, that is treated as a separate portion of the Work under this Agreement for purposes of schedule, sequencing, commissioning, testing and completion. The Parties understand and agree that the Blocks may proceed in overlapping schedules, so that during some periods, various Blocks may be under construction simultaneously.

“Block Substantial Completion” means, with respect to the initial Block, the satisfaction (or waiver by Owner) of the requirements set forth in Section 15.1.1, and with respect to each additional Block thereafter, the satisfaction (or waiver in writing by Owner) of the requirements set forth in Section 15.1.2.

“Block Substantial Completion Certificate” means, for any Block, a certificate signifying that Block Substantial Completion for such Block has occurred, in the form of the attached Exhibit X-1.

“Block Substantial Completion Date” means, for each Block, the date on which the Block Substantial Completion with respect to such Block occurred, determined in accordance with Section 15.5.

“Block Substantial Completion Test” means the Performance Acceptance Tests to be performed for each Block in compliance with the criteria and guidelines set forth in Exhibit H-1.

“Bonus Payment” shall have the meaning set forth in Section 16.2.

“Business Day” means a day, other than a Saturday or Sunday or a public holiday, on which banks are generally open for business in the State of California.

“Cash Grant” shall mean the cash grant in lieu of energy credits under Section 48 of the Internal Revenue Code, from the U.S. Department of the Treasury under Section 1603 of the American Recovery and Reinvestment Act of 2009 in respect of the Project or a Phase.

“Cash Grant Guidance” shall mean the guidance issued on July 9, 2009 (as revised in March 2010 and April 2011), by the U.S. Department of the Treasury for payments for specified energy property in lieu of tax credits under the American Recovery and Reinvestment Act of 2009, the “Frequently Asked Questions” and “Frequently Asked Questions Regarding Commencement of Construction” published by the U.S. Department of Treasury, and any clarification, amendment, addition or supplement thereto, or any other guidance or similar materials, issued by the U.S. Department of Treasury or any other Governmental Authority.

“Change In Law” means the enactment, adoption, promulgation, modification (including a written change in interpretation by a Governmental Authority) or repeal of any Applicable Law after the Effective Date, provided, however, that the final enactment, modification, amendment

-3-

or repeal of an Applicable Law prior to the Effective Date but which takes effect after the Effective Date shall not be a Change In Law pursuant to this Agreement.

“Change In Work” means a change in the Work as defined in Section 17.1.

“Change In Work Form” means the form in respect of a Change In Work attached as Exhibit S hereto.

“Claim Notice” has the meaning set forth in Section 24.5.

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

“Commencement of Construction” means that (x) Contractor has (1) completed all pre-construction engineering and design services, (2) received all Contractor-Acquired Permits that, in each case, are reasonably necessary to begin (or, if previously interrupted or suspended, resume) physical work of a significant nature on the Project and to proceed to completion without foreseeable interruption of a material duration, (3) engaged all subcontractors and ordered all essential equipment and supplies that, in each case, are reasonably necessary to begin (or, if previously interrupted or suspended, resume) physical work of a significant nature on the Project and to proceed to completion of the PV Power Plant without foreseeable interruption of a material duration; and (y) Contractor has begun (or resumed) such physical work.

“Commissioning” is energization and functional testing of a Block or portions thereof, including verifying System completeness as received from Contractor's construction team and readiness for operations and testing.

“Commissioning Hold Items” has the meaning set forth in Section 14.1.4.

“Commissioning Plan” means the commissioning plan for the PV Power Plant to be developed and finalized in compliance with the criteria and guidelines set forth in Exhibit M.

“Commissioning Procedures” means the actions to be followed by Owner or Contractor related to the commissioning of the PV Power Plant as specified with respect to such party in the Commissioning Plan.

“Competitor of NRG” means any Person (or any such Person's Affiliates) engaged as a substantial portion of their business, in the development, construction, and/or operation of utility scale power plants. For purposes of confirming whether a third party constitutes a Competitor of NRG under this Agreement, Contractor shall notify Owner of the identity of such third party and Owner shall respond to Contractor in writing within ten (10) Business Days whether such third party constitutes a Competitor of NRG hereunder, provided that if Owner does not respond within such ten (10) Business Days period, then such third party shall be deemed not to be an Competitor of NRG.

“Competitor of SunPower” means ***, ***, their Affiliates, and any Person (or any such Person's Affiliates) engaged primarily in the business of manufacturing photovoltaic modules, except *** and ***.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-4-

“Completion Certificate” means a Block Substantial Completion Certificate, a Phase Substantial Completion Certificate, the PV Power Plant Substantial Completion Certificate, and the Final Completion Certificate, as applicable.

“Confidential Information” has the meaning set forth in Section 25.1.

“Contract Intellectual Property” has the meaning assigned thereto in Section 32.1.

“Contract Interest Rate” has the meaning set forth in Section 6.5.4.

“Contract Price” has the meaning set forth in Section 5.1, as the same may be adjusted pursuant to the terms hereof.

“Contractor” has the meaning set forth in the preamble and shall include any of its successors and permitted assigns.

“Contractor-Acquired Permits” means the Applicable Permits required by Contractor for the performance of the Work as set forth in Exhibit C-2.

“Contractor Deliverable(s)” means the documentation described in the Contractor Deliverables Table.

“Contractor Deliverables Table” means the table of Contractor Deliverables attached hereto as Exhibit B.

“Contractor Event of Default” has the meaning set forth in Section 20.1.

“Contractor Financing Parties” means any and all lenders providing financing or refinancing to Contractor Parent, Contractor or their Affiliates with an interest in the Contractor's rights and interests under this Agreement and any trustee or agent acting on their behalf.

“Contractor Indemnitee” has the meaning set forth in Section 24.3.

“Contractor Lien” has the meaning set forth in Article 28.

***

***

“Contractor Taxes” means ***

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-5-

“Contractor's Invoice” means an invoice from Contractor to Owner prepared by Contractor and in a form attached as Exhibit U.

“Contractor's Project Manager” means the project manager appointed by Contractor and reasonably approved by Owner pursuant to Section 3.4.

“Contractor's Safety Program” has the meaning set forth in Section 3.12.2.

“Control” means (including with correlative meaning the terms “Controlled”, “Controls” and “Controlled by”), as used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

“Cost Segregation Firm” shall mean any regionally or nationally recognized certified appraisal, valuation, or accounting firm that has expertise in providing reports that determine the cost basis of property in accordance with the general rules for determining the basis of property for federal income tax purposes.

“Cost Segregation Report” means the report prepared by the Cost Segregation Firm that sets forth an allocation of the cost basis of property relating to the applicable Phase of the PV Power Plant in accordance with the general rules for determining the basis of property for federal income tax purposes.  The Cost Segregation Report shall include, without limitation, an allocation of the cost basis of property relating to the Phase without regard to any amounts paid or incurred by Owner other than the Contract Price.

“County Fiscal Agreement” means that agreement attached hereto as Exhibit CC.

“CPM Schedule” has the meaning set forth in Section 7.2.

“Critical Path” means the set of dependent tasks and related periods set forth in the CPM Schedule which are required for Contractor to achieve Substantial Completion by the applicable Substantial Completion Guaranteed Date.

“Cure Period” means, with respect to each Phase or the PV Power Plant, the period beginning on the applicable Phase Substantial Completion Guaranteed Date or the PV Power Plant Substantial Completion Guaranteed Date and ending *** days later, as adjusted pursuant to Section 16.6.

“Xxxxx Xxxxx Act” means the federal law codified at 42 U.S.C 1341 et seq., as amended, and commonly referred to as the Xxxxx Bacon Act.

“DC” or “dc” means direct current.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-6-

“Defect” means any failure of the PV Power Plant (or applicable portions thereof) to conform to the Plant Specifications.

“Defect Warranty” has the meaning set forth in Section 18.1.1.

“Defect Warranty Period” has the meaning set forth in Section 18.2.1.

“Delay Liquidated Damages” has the meaning set forth in Section 16.1.

“Delay Notice” has the meaning set forth in Section 8.2.1.

“Delay Response Plan” has the meaning set forth in Section 7.7.

“Design Review Conference” has the meaning set forth in Section 7.2.

***

***

“Disclosing Party” has the meaning set forth in Section 25.1.

“Discussion Period” has the meaning set forth in Section 31.3.

“Dispute” has the meaning set forth in Section 31.1.

“Dollars,” “dollars” or “$” means United States Dollars.

“Effective Date” has the meaning set forth in the preamble.

“Environmental Law” means any Applicable Law or Applicable Permit relating to the environment, or to handling, storage, transportation, emissions, discharges, releases or threatened emissions, discharges or releases of Hazardous Materials into the environment, including ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment or disposal of any Hazardous Materials, including, but not limited to, the Clean Air Act, the Federal Water Pollution Control Act (including, but not limited to the Clean Water Act and the Oil Pollution Act), the Safe Drinking Water Act, the Federal Solid Waste Disposal Act (including, but not limited to, the Resource Conservation and Recovery Act of 1976), the Comprehensive Environmental Response, Compensation, and Liability Act, the Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, the Emergency Planning and Community Right-to-Know Act, and the Occupational Safety and Health Act (to the extent relating to human exposure to Hazardous Materials) and any other federal, state or local laws, ordinances, rules or regulations now or hereafter existing relating to any of the foregoing.

“Environmental Reports” means the reports listed in Exhibit Q, hereto.

“Event of Default” means either a Contractor Event of Default or an Owner Event of Default, as the context may require

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-7-

“Excusable Event” means an event that wholly or partially prevents or otherwise adversely affects Contractor's performance of the Work, to the extent such event is attributable to (i) an Unknown Pre-Existing Site Condition or (ii) an Owner-Caused Delay.

“Final Completion” means satisfaction by Contractor or waiver by Owner of all of the conditions for Final Completion set forth in Section 15.5.

“Final Completion Certificate” means a certificate with respect to the entire PV Power Plant signifying that Final Completion of the PV Power Plant has been achieved in the form of the attached Exhibit X-4.

“Final Completion Date” has the meaning set forth in Section 15.6.

“Final Completion Guaranteed Date” means the date that is *** days after the PV Power Plant Substantial Completion Date.

“Final Contractor's Invoice” has the meaning set forth in Section 6.7.

“Final EIR” is the Final Environmental Impact Report prepared and certified by the County of San Xxxx Obispo in connection with the issuance of the Conditional Use Permit for the Project.

“Final Payment” has the meaning set forth in Section 6.7.

“Final Performance Acceptance Test” has the meaning set forth in Section 16.10.

“Force Majeure Event” means any act, event, condition, or occurrence that (i) wholly or partially prevents the affected Party from performing its obligations under this Agreement, (ii) is beyond the reasonable control of and not the result of negligence of, the affected Party and (iii) such affected Party has been unable to overcome by the exercise of due diligence, and to the extent that the foregoing requirements are met, “Force Majeure Event” may include ***. Notwithstanding the foregoing, the following events, conditions or occurrences shall not constitute a Force Majeure Event:

(a) the absence of sufficient financial means to perform obligations or the failure to make payments in accordance with this Agreement;

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-8-

(b) any Labor Dispute of Contractor's workers or personnel (including workers or personnel of Contractor's Affiliates) or any Subcontractor or such Subcontractor's workers or personnel or any independent contractor, vendor, fabricator, or manufacturer engaged by Contractor to the extent occurring at the Site or, in the case of the Contractor, Contractor's Affiliates, or Subcontractors, at the Contractor's, Contractor's Affiliates', or Subcontractor's facilities (except for Labor Disputes that are national or regional in scope);

(c) mechanical failures unless caused by a Force Majeure Event;

(d) storms and other climatic or weather conditions (except unusually severe weather conditions and insufficient irradiation for performance testing as described above); and

(e) the unavailability or shortages of equipment and materials unless itself caused solely by an event of Force Majeure.

“Full Notice to Proceed” means a Notice signed by a representative of Owner to Contractor authorizing Contractor to commence and complete all Work under this Agreement, delivered concurrently with the Effective Date.

“Geotechnical Reports” are the reports entitled Geotechnical Exploration, PG&E California Valley Solar Ranch, dated October 3, 2008, PG&E California Valley Solar Ranch Corrosivity Analysis, dated October 7, 2008, and Aggregate Resource Evaluation, May 31, 2009, listed in Exhibit Q.

“Governmental Authority” means applicable national, federal, state, and local governments and all agencies, authorities, departments, instrumentalities, courts, corporations, other authorities lawfully exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, or other subdivisions of any of the foregoing having a regulatory interest in or jurisdiction over the Site, the PV Power Plant, the Work or the Parties.

“Gross Invoiced Amount” means the cumulative invoiced portion of the Contract Price by the Contractor.

“Guaranteed Capacity” has the meaning set forth in Exhibit T.

“Guaranteed Reference Conditions” or “GRC” has the meaning set forth in Exhibit H‑1.

“Hazardous Materials” means any chemical, substance or material regulated or governed by any Applicable Permit, or any substance, emission or material now or hereafter deemed by any Governmental Authority to be a “regulated substance,” “hazardous material,” “hazardous waste,” “hazardous constituent,” “hazardous substance,” “toxic substance,” “radioactive substance” or “pesticide.”

-9-

“HPR II” has the meaning set forth in the preamble and shall include any successors and permitted assigns.

“HPR II PPA” means that certain Power Purchase and Sale Agreement between PG&E and HPR II dated July 23, 2008.

“HPR III” means High Plains Ranch III, LLC, a Delaware limited liability company, that was merged into HPR II with HPR II as the surviving entity pursuant to that Merger Agreement by and between HPR II and HPRIII dated as of September 29, 2011.

“HPR III PPA” means that certain Amended and Restated Power Purchase and Sale Agreement between PG&E and HPR III dated March 5, 2010, as amended by that certain Amendment of the Amended and Restated Power Purchase Agreement, effective as of April 26, 2010, and as [assigned/amended] by that certain Merger Agreement between HPRII and HPRIII dated as of September 29, 2011.

“Hydrology Reports” are the reports entitled Preliminary Hydrologic Investigation for the California Valley Solar Ranch, dated Nov. 1, 2008, Preliminary Hydrologic Investigation for the California Valley Solar Ranch (Addendum), dated Dec. 1, 2009, Hydrogeology in the Vicinity of the Proposed California Valley Solar Ranch, dated Dec. 18, 2009, and Preliminary Hydrology for APN 000-000-000 (Xxxxxx Property) California Valley Solar Ranch, Alternative Layout “T0-Alt #3” dated June 21, 2010, listed in Exhibit Q.

“Indemnitee” means an Owner Indemnitee or a Contractor Indemnitee, as the context may require.

“Independent Accountant” shall mean such “Big 4” accounting firm chosen by Owner to provide the certifications attesting to the accuracy of all costs claimed as part of the basis of the Phases for purposes of the Section 1603 Applications or Section 1603 Commencement of Construction Applications.

“Independent Engineer” means an independent engineer of recognized expertise, selected by the Owner Financing Parties and reasonably acceptable to Owner and Contractor, and such independent engineer's successors and permitted assigns.

“Independent Expert” means any Person agreed to by the Parties for expedited resolution of Minor Change Disputes pursuant to Section 31.4.

“Industry Standards” means those standards of design, construction and workmanship relating to the PV Power Plant Hardware, components, operation, and construction, specified in Part Two, Section 3 of Exhibit A-1.

“Intellectual Property” means all, patents, copyrights, trademarks, service marks, trade secrets, licenses, and proprietary information, whether registered or not, including where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations.

-10-

“Intellectual Property Claim” means a claim or legal action for unauthorized disclosure or use of any trade secret, patent, copyright, trademark or service xxxx arising from Contractor's performance (or that of its Affiliates or Subcontractors) under this Agreement that: (a) concerns any PV Power Plant Hardware or other services provided by Contractor, any of its Affiliates, or any Subcontractor under this Agreement; (b) is based upon or arises out of the performance of the Work by Contractor, any of its Affiliates, or any Subcontractor, including the use of any tools or other implements of construction by Contractor, any of its Affiliates, or any Subcontractor; or (c) is based upon or arises out of the design or construction of any item by Contractor or any of its Affiliates or Subcontractors under this Agreement or the operation of any item according to directions embodied in Contractor's final PV Power Plant design, or any revision thereof, prepared or approved by Contractor.

“Interconnection Facilities” means Transmission Provider's facilities necessary to permit Owner to interconnect and deliver energy at the Interconnection Point in accordance with the LGIA and shall include, but not be limited to, connection, switching, metering, communications, control, safety equipment as well as Network Upgrades.

“Interconnection Point” shall be the 230 kV bus in the Caliente Switching Station, where the gen-tie terminates.

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

“Invoice Payment” has the meaning set forth in Section 6.5.3.

“Key Personnel” means the following Contractor personnel performing Work under this Agreement: Contractor's Project Manager, construction site manager and startup and commissioning manager.

“kV” means kilovolts.

“kW” means a measure of instantaneous power as measured in kilowatts AC.

“kWh” means kilowatt-hours AC.

“Large Generator Interconnection Agreement” or “LGIA” shall have the meaning set forth in the PPAs

“Labor Dispute” means work stoppages, slowdowns, strikes, disputes, disruptions, boycotts, and walkouts.

“Letter of Credit” means an irrevocable standby letter of credit issued by a bank or trust company (i) with a combined capital surplus of at least one billion dollars ($1,000,000,000) and (ii) whose senior unsecured obligations have a credit rating of at least A- from Standard and Poor's or A3 from Xxxxx'x Investor Services Inc.

“License” has the meaning set forth in Section 32.2.

-11-

“Losses” means, subject to Article 30, any and all actions, suits, claims, demands, costs, charges, expenses, liabilities, Taxes, losses or damages.

“Major Subcontractor” means a Person that is selected and enters into a subcontract with Contractor or any Subcontractor for the performance of any part of the Work, and whose subcontract or subcontracts (in the aggregate) with Contractor require payments by Contractor of *** or more.

“Mechanical Completion” means, for each Block, that the Block is mechanically, electrically and structurally constructed in accordance with the Statement of Work, and ready for initial operations, adjustment and testing in accordance with the requirements for Mechanical Completion as set forth in Exhibit M, except for Non-Critical Deficiencies.

“Meteorological Station” or “Met Station” means the meteorological station described in Exhibit A-1.

“Milestone Item” means a discrete portion of the Work as set forth in Exhibit G.

“Minimum Performance Guarantee” for (a) each Phase shall be equal to ***% of the Guaranteed Capacity of such Phase, and (b) the PV Power Plant, shall be equal to ***% of the Guaranteed Capacity of the PV Power Plant, in each case of (a) and (b), during a Successful Run of the applicable Performance Acceptance Test with all applicable PV modules connected and operational.

“Minor Change Disputes” has the meaning set forth in Section 31.4.

“Module Warranty Terms and Conditions” means the terms and conditions set forth in Exhibit R.

“Monthly Progress Report” means a written monthly progress report prepared by Contractor, in a form to be agreed by the Parties, and including information, set forth in Exhibit A-1.

“Monthly Updated CPM Schedule” has the meaning set forth in Section 7.4.

“MW AC” means megawatts of alternating current.

“MW DC” means megawatts of direct current

“Network Upgrade” shall mean all transmission and network upgrades required by CAISO and/or the Transmission Provider to interconnect the Project with the Transmission Provider's transmission system.

“Non-Critical Deficiencies” means each item of Work that Owner or Contractor identifies as requiring completion or containing defects or deficiencies that do not (a) impede the safe operation of the PV Power Plant or any portion thereof, in accordance with Industry Standards; and (b) adversely affect the reliability, operability, or mechanical or electrical integrity of the PV Power Plant or any portion thereof.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-12-

“Notice” or “Notification” means a written communication between authorized representatives of the Parties required or permitted by this Agreement and conforming to the requirements of Article 29.

“Notice of Final Completion” means a Notice from Contractor to Owner provided under Section 15.6.

“Notice of Substantial Completion” means, for each Block, Phase or the PV Power Plant, as applicable, a Notice from Contractor to Owner provided under Section 15.4.

“Notify” means to provide a Notice or Notification.

“Operating Personnel” means the personnel hired by Owner, or by an entity providing operating services for Owner, to operate the PV Power Plant or any applicable portion thereof (including all operators, instrument technicians and supervisors and Owner's contractors (other than Contractor )).

“OSHA” means the United States Department of Labor Occupational Safety and Health Administration.

“Owner” has the meaning set forth in the preamble and shall include any successors and permitted assigns.

“Owner-Caused Delay” means ***.

“Owner Critical Path Dates” means the respective dates identified in Exhibit G for the performance of the Owner Critical Path Items.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-13-

“Owner Critical Path Items” means the items identified in Exhibit G as “Owner Critical Path Items.”

“Owner Directive” has the meaning set forth in Section 17.7.

“Owner Event of Default” has the meaning set forth in Section 20.3.

“Owner Financing Parties” means (a) any and all third party lenders (that is, unaffiliated with Owner or Owner Parent) providing senior or subordinated construction, interim or long-term debt financing or refinancing to Owner; (b) any and all third party equity investors (that is, unaffiliated with Owner or Owner Parent) in Owner providing tax equity investment or leveraged lease-financing or refinancing; or (c) any Person providing credit support to Owner, in each case of (a), (b) and (c) above, in connection with the PV Power Plant, and, in each case, any trustee or agent acting on behalf of such lenders or investors.

“Owner Indemnitee” has the meaning set forth in Section 24.2.

***

***

“Owner-Provided Facilities and Services” has the meaning set forth in Exhibits A-2 and A-3.

“Owner-Provided Information” means the information provided by or on behalf of Owner as set forth in Exhibit A-2.

“Owner Representative” means the representative designated by Owner pursuant to Section 2.1.

“Owner's Engineer” means any engineering firm or firms or other engineer or engineers selected and designated by Owner, provided that it is not a Competitor of SunPower.

“Owner's Separate Contractors” means each contractor or other Person that is in direct or indirect contractual privity with Owner and that performs any work in respect of the Project, but excluding Contractor and each Person engaged by Contractor or any of its Subcontractors in connection with the performance of the Work; provided, however, that where a Person so engaged by Contractor or any of its Subcontractors is also performing work in connection with the Owner-Provided Facilities and Services, as a contractor or a subcontractor of a contractor of Owner, such Person shall be considered one of “Owner's Separate Contractors” with respect to its performance of such work.

“Owner Taxes” means (i) any and all Taxes imposed under Applicable Law in respect of the income or gross income of the Owner, the direct or indirect owners of beneficial interests in the Owner and the Affiliates of the foregoing, (ii) Property Taxes imposed under Applicable Law in respect of the Site or the PV Power Plant Interconnection Facilities, and (iii) any and all other Taxes, not described in clauses (i) or (ii), including Property Taxes, imposed under Applicable Law on Owner, the PV Power Plant (or the operation thereof), or any property incorporated

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-14-

therein pursuant to Section 5.2), in each case, for any period beginning on or after the Substantial Completion of the relevant Block.

“PCA” has the meaning set forth in the recitals.

“Performance Acceptance Tests” means, as the context may require, the Block Substantial Completion Tests, the Phase Substantial Completion Tests, and the PV Power Plant Substantial Completion Tests.

“Performance Acceptance Test Procedures” means the written test procedures, standards, protective settings, and testing programs for the Performance Acceptance Tests established by Contractor and approved by Owner in compliance with the criteria and guidelines set forth in Exhibits X-0, X-0, xxx X-0, as applicable.

“Performance Guarantee” means that the Tested Capacity of a Phase or the PV Power Plant, as applicable, is at least equal to the Guaranteed Capacity during a Successful Run of the applicable Performance Acceptance Test, as set forth in Exhibit H-2.

“Performance Liquidated Damages” means, for each Phase and the PV Power Plant, the amounts (if any) paid or to be paid by Contractor pursuant to Section 16.3 if Contractor fails to satisfy the applicable Performance Guarantee.

“Permit Expenses” means the actual costs payable to a Governmental Authority and all other reasonable third party costs and expenses incurred in connection with the application for and issuance of an Applicable Permit.

“Permit Requirement” means any requirement or condition on or with respect to the issuance, maintenance, renewal, transfer of, or otherwise relating to, any Applicable Permit or any application therefor.

“Person” means any individual, corporation, company, voluntary association, partnership, incorporated organization, trust, limited liability company, or any other entity or organization, including any Governmental Authority.

“PG&E” has the meaning assigned to such term in the recitals.

“Phase” means each of Xxxxx 0, Xxxxx 0, Xxxxx 3 and Phase 4.

“Phase 1” means the first stage of the PV Power Plant, corresponding to “Phase 1” referred to in the HPR II PPA, which stage includes the Work required to complete the initial Block specified for such Phase in Exhibit T.

“Phase 1 Substantial Completion Guaranteed Date” means the Guaranteed Phase Operation Date for Phase 1 under the HPR II PPA, and as such date may be adjusted or extended pursuant to the terms thereof.

-15-

“Phase 2” means the second stage of the PV Power Plant corresponding to “Phase 2” referred to in the HPR II PPA, which stage includes the Work required to complete the Blocks specified for such Phase in Exhibit T.

“Phase 2 Substantial Completion Guaranteed Date” means the Guaranteed Phase Operation Date for Phase 2 under the HPR II PPA, and as such date may be adjusted or extended pursuant to the terms thereof.

“Phase 3” means the third stage of the PV Power Plant, corresponding to “Phase III” referred to in the HPR II PPA, which stage includes the Work required to complete the Blocks specified for such Phase in Exhibit T.

“Phase 3 Substantial Completion Guaranteed Date” means the Guaranteed Phase Operation Date for Phase 3 under the HPR II PPA, and as such date may be adjusted or extended pursuant to the terms thereof.

“Phase 4” means the stage of the PV Power Plant corresponding to the “Project” referred to in the HPR III PPA,, which stage includes the Work required to complete the Blocks specified for such Phase in Exhibit T.

“Phase 4 Substantial Completion Guaranteed Date” means the Guaranteed Phase/Commercial Operation Date for Phase 4 stated in Exhibit G, and as such date may be adjusted or extended pursuant to the terms of the HPR III PPA.

“Phase Substantial Completion” means, with respect to each Phase, the satisfaction (or waiver by Owner) of the requirements set forth in Section 15.2 with respect to such Phase.

“Phase Substantial Completion Certificate” means a certificate with respect to a Phase signifying that Phase Substantial Completion for such Phase has occurred, in the form of the attached Exhibit X-2.

“Phase Substantial Completion Date” means, for any Phase, the date on which the Phase Substantial Completion with respect to such Phase occurred, determined in accordance with Section 15.4.

“Phase Substantial Completion Guaranteed Date” means, as applicable, the Phase 1 Substantial Completion Guaranteed Date, the Phase 2 Substantial Completion Guaranteed Date, the Phase 3 Substantial Completion Guaranteed Date, and the Phase 4 Substantial Completion Guaranteed Date.

“Phase Substantial Completion Tests” means, the Performance Acceptance Tests to be performed for each Phase as described in Exhibits H-2 and H-3.

“Plant Specifications” is the description of the PV Power Plant set forth in Exhibit A-1, Part Two.

“Power Purchase Agreements” or “PPAs” means the HPR II PPA and the HPR III PPA.

-16-

“Pre-Commissioning” shall be the activities necessary to commence Commissioning as set forth in Exhibit M.

“Pre-Existing Contamination” means any Hazardous Materials present at or under the Site, prior to the Effective Date as identified in the Environmental Reports and that was not brought to the Site by Contractor or its Subcontractors.

“Priority A Item” has the meaning set forth in Section 14.1.6(a).

“Priority B Item” has the meaning set forth in Section 14.1.6(b).

“Progress Payment Schedule” means the schedule of monthly progress payments set forth in Exhibit I, as it may be adjusted in accordance with Article 17.

“Project” means (a) the PV Power Plant that is designed, engineered, procured, and constructed in accordance with this Agreement and (b) the PV Power Plant Interconnection Facilities.

“Project Labor Agreement” or “PLA” means that certain Project Labor Agreement for the California Valley Solar Ranch Project, dated October 27, 2010, by and between Fluor Constructors International, Inc. and International Brotherhood of Electrical Workers, Local 639, et al, a copy of which is attached hereto as Exhibit Z.

“Property Tax” means any real or personal property, or any ad valorem Taxes related to the Site, the PV Power Plant, the PV Power Plant Hardware, or any other property that will be incorporated therein.

“Punch List” has the meaning set forth in Section 14.1.6.

“Punch List Amount” has the meaning set forth in Section 14.1.6.

“Punch List Holdback” means an amount equal to *** of the Punch List Amount for each Priority B Item.

“PV” means photovoltaic.

“PV Power Plant” means the photovoltaic energy generating facility to be designed, engineered, procured, constructed, tested and commissioned under this Agreement in Phases as provided herein and as described in the Plant Specifications.

“PV Power Plant Functional Tests” means the functional tests on the PV Power Plant set forth in Exhibit H-4.

“PV Power Plant Functional Test Procedures” means the written test procedures, standards, protective settings, and testing programs for the PV Power Plant Functional Tests established by Contractor and approved by Owner in compliance with the criteria and guidelines set forth in Exhibit H-4.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-17-

“PV Power Plant Hardware” means all materials, supplies, apparatus, devices, equipment, machinery, tools, components, instruments and appliances that are to be incorporated into the PV Power Plant, whether provided by Contractor or any Subcontractor or Supplier.

“PV Power Plant Interconnection Facilities” shall mean the PV Power Plant substation and 230 kV gen-tie structures extending from the substation to one span short of reaching Caliente switching station, as well as conductors and communication cables from the substation to Caliente switching station.

“PV Power Plant Substantial Completion” means the satisfaction (or waiver by Owner) of the requirements set forth in Section 15.3.

“PV Power Plant Substantial Completion Certificate” means a certificate with respect to the entire PV Power Plant signifying that the PV Power Plant Substantial Completion has been achieved, in the form of the attached Exhibit X-3.

“PV Power Plant Substantial Completion Date” means the date on which the PV Power Plant Substantial Completion occurred, determined in accordance with Section 15.5.

“PV Power Plant Substantial Completion Guaranteed Date” means ***, as such date may be adjusted or extended pursuant to the terms hereof.

“PV Power Plant Substantial Completion Tests” means the Performance Acceptance Tests to be performed for the PV Power Plant as described in Exhibits H-2.

“Receiving Party” has the meaning set forth in Section 25.1.

“Release” means the discharging, depositing, injecting, dumping, spilling, leaking, placing, pumping, pouring, emitting, emptying, escaping, leaching, disposing, or discarding of any Hazardous Materials into the environment so that such Hazardous Materials or any constituent thereof may enter the environment, or be emitted into the air or discharged into any waters, including ground waters.

“Remedial Plan” means, for each Phase and the PV Power Plant, a plan prepared by Contractor regarding the actions to be taken and the schedule to remedy failures to meet the applicable Performance Guarantee, as submitted to and approved by Owner pursuant to Section 16.6.2.

“Required Manuals” means the manuals, instructions and training aids, whether created by Contractor, Subcontractor or Supplier, which are set forth in the Contractor Deliverables Table.

“Retention” has the meaning set forth in Section 6.6.1.

“Retention L/C” means one or more irrevocable letters of credit to be provided by Contractor, issued by an Approved Bank on terms reasonably acceptable to Owner in lieu of all or a portion of the Retention.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-18-

“Schedule Milestones” means the Milestone Items associated with the Work, including the Owner Critical Path Items and the related Owner Critical Path Dates, as set forth in Exhibit G.

“SCADA System” is the Supervision, Control, and Data Acquisition System for the PV Power Plant as described in Part One, Section 2.6, of Exhibit A-1.

“Section 1603 Application” means an application submitted to the U.S. Department of the Treasury requesting a Cash Grant in respect of the Project or a Phase.

“Section 1603 Commencement of Construction Application” means an application submitted to the U.S. Department of the Treasury evidencing that the commencement of construction (within the meaning of the requirements of Section 1603 of the American Recovery and Reinvestment Act of 2009 and in accordance with the Cash Grant Guidance) with respect to the Project (or a Phase) has begun.

“Site” means the site for the location of the PV Power Plant, as more particularly described in Exhibit J.

“Site Conditions” means the physical and other conditions at the Site and the surrounding area as a whole, including conditions relating to the environment, transportation, access, waste disposal, handling and storage of materials, the availability and quality of electric power, the availability and quality of water, the availability and quality of roads, climatic conditions and seasons, topography, air and water (including raw water) quality and access conditions, ground surface conditions, surface soil conditions, sound attenuation, subsurface geology, nature and quantity of surface and subsurface materials to be encountered (including Hazardous Materials).

“Site Control Center” or “SCC” has the meaning set forth in Part One, Section 6.10 of Exhibit A-1.

“Site Plan” means the plan set forth in Exhibit K.

“Specified Subcontractor” means a Major Subcontractor set forth on Exhibit L (as amended from time to time in accordance with this Agreement).

“Specified Supplier” means a Supplier of equipment as set forth on Exhibit L (as amended from time to time in accordance with this Agreement).

“Standard Test Conditions” or “STC” means those standard test conditions described in Exhibits H-1, H-2 and H-3, as applicable.

“Statement of Work” means the requirements regarding the Work set forth in Exhibit A‑1.

“Subcontractor” means any Person, including any Supplier, other than Contractor or any of its Affiliates, that performs any portion of the Work for Contractor in furtherance of Contractor's obligations under this Agreement.

-19-

“Substantial Completion” means (a) with respect to a Block, the Block Substantial Completion with respect to such Block, (b) with respect to a Phase, the Phase Substantial Completion with respect to such Phase, and (c) with respect to the PV Power Plant, the PV Power Plant Substantial Completion.

“Substantial Completion Date” has the meaning set forth in Section 15.5.

“Substantial Completion Guaranteed Date” means the Phase 1 Substantial Completion Guaranteed Date, the Phase 2 Substantial Completion Guaranteed Date, the Phase 3 Substantial Completion Guaranteed Date, the Phase 4 Substantial Completion Guaranteed Date, or the PV Power Plant Substantial Completion Guaranteed Date, as applicable.

“Substantial Completion Certificate” means a certificate from Owner certifying that Substantial Completion for a Block or Phase or the PV Power Plant, as applicable, has occurred in the form attached hereto as Exhibits X-1, X-2, & X-3.

“Successfully Run” or “Successful Run” means, for each Phase and for the PV Power Plant (or, to the extent applicable, Block), (x) with respect to a Performance Acceptance Test, that (i) the applicable Performance Acceptance Test was completed in accordance with the applicable Performance Acceptance Test Procedures and (ii) the results from such Performance Acceptance Test demonstrate that such Phase, or the PV Power Plant, has successfully achieved at least the Minimum Performance Guarantee (or, with respect to a Block, the results from such Performance Acceptance Test demonstrate that the Block has successfully achieved at least ***% of its Guaranteed Capacity) and (y) with respect to a PV Power Plant Functional Test, that (i) the PV Power Plant Functional Test was completed in accordance with the applicable PV Power Plant Functional Test Procedure and (ii) the results from such PV Power Plant Functional Test demonstrate that the all major systems comprising the PV Power Plant are running in automatic and with a computed capacity weighted availability that is greater than or equal to ***%.

“Supplier” means a Person that supplies PV Power Plant Hardware directly to Contractor in connection with the performance of the Work.

“Suspension for Cause” has the meaning set forth in Section 21.4.2.

“System Turnover Package” consists of the installation, assembly, and Pre-Commissioning checklists for each System in a Block.

“Systems” has the meaning set forth in Section 14.1.

“Taxes” means any and all taxes, charges, duties, imposts, levies and withholdings imposed by any Governmental Authority, including sales tax, use tax, income tax, withholding taxes, corporation tax, franchise taxes, margin tax, capital gains tax, capital transfer tax, inheritance tax, value added tax, customs duties, capital duty, excise duties, betterment levy, stamp duty, stamp duty reserve tax, national insurance, social security or other similar contributions, and any interest, penalty, fine or other amount due in connection therewith, but not including Permit Expenses.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-20-

“Tested Capacity” has the meaning set forth in Exhibit H-2.

“Transmission Provider” means PG&E, by or through one or more of its Affiliates, or any other Person providing transmission services from time to time for energy generated by the PV Power Plant.

“Third Party Intellectual Property” means Intellectual Property developed, conceived, reduced to practice or created by Subcontractors or other third parties in the performance of any portion of the Work or otherwise delivered to Contractor or Owner as part of the Work.

“30 Day Look-ahead Schedule” has the meaning set forth in Section 7.5.

“United States” means the United States of America.

“Unknown Pre-Existing Site Conditions” means (i) any adverse environmental conditions affecting the Work which are not disclosed in the Environmental Reports (and that were not brought on to the Site by the Contractor or by any Subcontractor), except geological conditions and archaeological artifacts or features, and which were discovered after the Effective Date; and (ii) any adverse Site Conditions that existed or arose prior to the Effective Date of which NRG Solar LLC or its Affiliates had actual knowledge and did not disclose the same to Contractor.

“Waiver and Release Form” shall mean the waivers and releases of liens described in Section 6.3(b) or Section 6.7, as applicable.

“Warranty” means the Defect Warranty ***, as the context requires.

“Warranty Period” means, for each Block, the applicable Defect Warranty Period or the applicable ***, as the context requires.

“Work” means all of Contractor's obligations set forth in Exhibits A-1 and A-3.

1.2    Exhibits. This Agreement includes the Exhibits annexed hereto and any reference in this Agreement to an “Exhibit” by letter designation or title shall mean one of the Exhibits identified in the table of contents and such reference shall indicate such Exhibit herein. Each Exhibit attached hereto is incorporated herein in its entirety by this reference.

1.3    Interpretation.

(a) Terms defined in a given number, tense or form shall have the corresponding meaning when used in this Agreement with initial capitals in another number, tense or form. The meaning assigned to each term defined herein shall be equally applicable to both the singular and the plural forms of such term and vice versa, and words denoting either gender shall include both genders as the context requires. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-21-

(b) The terms such as “hereof,” “herein,” “hereto,” “hereinafter” and other terms of like import are not limited in applicability to the specific provision within which such references are set forth but instead refer to this Agreement taken as a whole.

(c) When a reference is made in this Agreement to an Article, Section, subsection or Exhibit, such reference is to an Article, Section, subsection or Exhibit of this Agreement unless otherwise specified.

(d) The word “include,” “includes,” and “including” when used in this Agreement shall be deemed to be followed by the words “without limitation,” and, unless otherwise specified, shall not be deemed limited by the specific enumeration of items, but shall be deemed without limitation. The term “or” is not exclusive.

(e) Except as otherwise provided herein, a reference to any Party to this Agreement or any other agreement or document shall include such Party's successors and permitted assigns.

(f) Except as otherwise provided herein, reference to any Applicable Law means such Applicable Law as amended, modified, codified, replaced or reenacted, and all rules and regulations promulgated thereunder.

(g) The Parties shall act reasonably and in accordance with the principles of good faith and fair dealing in the performance of this Agreement. Unless expressly provided otherwise in this Agreement, (i) where the Agreement requires the consent, approval, acceptance or similar action by a Party, such consent, approval or acceptance shall not be unreasonably withheld, conditioned or delayed and (ii) wherever the Agreement gives a Party a right to determine, require, specify or take similar action with respect to a matter, such determination, requirement, specification or similar action shall be reasonable.

(h) Except as expressly provided herein or as the context may otherwise require, all references to “months” shall mean calendar months, and all references to “days” shall mean calendar days (i.e., including Business Days and non-Business Days).

(i) Words “shall” and “will” are used interchangeably with the same meaning.

(j) The Parties have participated jointly in the negotiation and drafting of this Agreement. Any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any Party by virtue of the authorship of this Agreement shall not apply to the construction and interpretation hereof.

1.4    Headings. All headings or captions contained in this Agreement are for convenience of reference only, do not form a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement.

1.5    Conflicts in Documentation. This Agreement, including the Exhibits hereto shall be taken as mutually explanatory. If either Party becomes aware of an express conflict

-22-

between the provisions of this Agreement or any Exhibit hereto, such Party shall immediately Notify the other Party of such conflict. In the event of a conflict between any provision within Articles 1 through 33 of this Agreement and an Exhibit, the provisions of Articles 1 through 33 of this Agreement shall take precedence.

2.    RESPONSIBILITIES OF OWNER

Owner shall carry out the responsibilities allocated to Owner under this Article 2 at Owner's cost and expense.

2.1    Owner Representative. Owner shall designate (by a Notice delivered to Contractor) an “Owner Representative,” who shall act as the single point of contact on behalf of Owner with respect to the prosecution and scheduling of the Work and any issues relating to this Agreement. Owner may designate a new Owner Representative from time to time by a Notice delivered to Contractor.

2.2    Operating Personnel. Owner shall provide Operating Personnel with requisite plant operating experience, who shall be licensed where necessary, to provide operating support to Contractor for testing and commissioning of each Block, Phase, and the PV Power Plant as provided in Sections 3.15 and 3.16.

2.3    Applicable Permits. Other than Contractor-Acquired Permits, Owner shall obtain and maintain in full force and effect all Applicable Permits. Owner shall comply with all requirements and perform all tasks identified as Owner's responsibility in the Division of CUP Responsibility Table attached hereto as Exhibit C-3. Owner agrees to provide prompt Notice to Contractor of any changes in its Applicable Permits to be obtained and maintained by it that could reasonably be expected to have a material adverse impact on the performance of the Work. ***.

2.4    Interconnection Facilities. Owner shall provide the Interconnection Facilities and the Owner-Provided Facilities and Services in accordance with the Schedule Milestones and the Owner Critical Path Dates.

2.5    Owner-Provided Information. Owner shall provide the Owner-Provided Information set forth in Exhibit A-2 to Contractor on or prior to the applicable Milestone Item as set forth in Exhibit G.

2.6    Owner Performance Security. Owner has, on or before the Effective Date, caused to be furnished to Contractor the *** and shall cause the same to be maintained in full force and effect until indefeasible payment in full of all such obligations and liabilities. ***.

2.7    Owner's Separate Contractors. Owner shall retain at Owner's sole cost, determination and responsibility, Owner's Separate Contractors. Contractor shall cooperate with all Owner's Separate Contractors who may be working at or near the Site. Contractor shall not allow it, or its Subcontractors, activities on the Site to unreasonably interfere with Owner's Separate Contractors. Owner shall cause Owner's Separate Contractors to comply with Contractor's directions in accordance with Contractor's Safety Program.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-23-

2.8    Taxes and Permit Expenses. Owner shall pay in a timely manner any and all Owner Taxes, or in the event such Owner Taxes are paid by Contractor, or any Subcontractor, Owner shall promptly reimburse Contractor for same. Owner shall also pay in a timely manner any such other Taxes as are Owner's responsibility under Article 5. Owner shall also pay all Permit Expenses to the applicable Governmental Authorities and other third parties in connection with all Applicable Permits, excluding Contractor-Acquired Permits.

2.9    Access to Site. Owner shall provide reasonable access and use of the Site to Contractor and the Subcontractors for the purposes of allowing Contractor to perform its obligations and exercise its rights under this Agreement.

2.10    Cooperation. Owner shall cooperate and cause Owner's Separate Contractors to cooperate with Contractor and the Subcontractors who may be working at or near the Site. Owner shall not allow its, or its Affiliates' or any Owner's Separate Contractor's, operations and activities on the Site to interfere with the performance of the Work by Contractor.

3.    RESPONSIBILITIES OF CONTRACTOR

Contractor shall carry out the responsibilities allocated to Contractor under this Article 3 at Contractor's cost and expense.

3.1    General. Contractor shall perform, furnish and be responsible for all of the Work including all engineering, services, procurement, testing, commissioning, labor, PV Power Plant Hardware and supervision necessary to provide the PV Power Plant in accordance with the provisions of this Agreement. Contractor acknowledges and agrees that this Agreement constitutes a fixed price obligation by Contractor to engineer, design, procure, construct, test and commission the PV Power Plant, subject to the terms of this Agreement. Contractor acknowledges and agrees that, except as otherwise explicitly set forth in this Agreement, Contractor shall have sole control over the engineering, procurement, design and construction means, methods, techniques, sequences, and procedures and for the coordination of all portions of the Work under this Agreement.

3.2    Performance of Work. Contractor shall perform and complete all of the Work, and cause each Subcontractor to perform and complete each such Subcontractor's respective portion of the Work, in accordance with the terms of this Agreement and Industry Standards, and in compliance with Applicable Law and Applicable Permits. The Work shall be subject to the warranty provisions set forth in Article 18.

3.3    Design and Construction of PV Power Plant.

3.3.1    General. Contractor shall design, engineer and construct the PV Power Plant so that it meets the requirements of the Statement of Work and is capable of operation in compliance with this Agreement, all Applicable Laws, Applicable Permits and Industry Standards in effect as of the Effective Date. Contractor shall provide all engineering and design services necessary to set forth in detail the specifications, drawings and requirements for the procurement of PV Power Plant Hardware and for the construction of the entire PV Power Plant in a manner that

-24-

satisfies the requirements of this Agreement. Contractor shall preserve all permanent survey construction monuments and benchmarks during its performance of the Work.

3.3.2    Commencement of Construction. Contractor shall achieve Commencement of Construction on or before September 26, 2011, or such later date as is consistent with the requirements of the Owner Financing Parties, provided, however, that Contractor's failure to timely achieve Commencement of Construction shall not constitute a Contractor Event of Default if such failure is caused by any action or inaction of Owner.

3.4    Contractor's Project Manager. Contractor shall designate a Contractor's Project Manager who shall have full responsibility for the prosecution of the Work and shall act as a single point of contact in all matters on behalf of Contractor. Contractor may designate a new Contractor's Project Manager from time to time by Notice delivered to Owner, subject to Owner's approval, not to be unreasonably withheld or delayed.

3.5    Utilities and Services.

3.5.1    Provision of Services. Contractor shall install, connect and maintain at its own expense during its performance under this Agreement, from the commencement of the Work until the Substantial Completion Date of the PV Power Plant, all utilities, facilities and services, as set forth in Exhibit A-1 (other than Owner-Provided Facilities and Services) required for the performance of the Work.

3.5.2    Payment. Contractor shall pay when due all construction utility usage charges and arrange with local authorities and utility companies having jurisdiction over the Site for the provision of utilities.

3.5.3    Supply of Construction Facilities. Other than Owner-Provided Facilities and Services, Contractor shall provide all construction facilities necessary to complete the PV Power Plant. Contractor shall obtain all supplies, equipment, materials or services required for the performance of the Work.

3.6    Inspection. Contractor shall perform all inspection, quality surveillance and other like services required for performance of the Work, including inspecting all PV Power Plant Hardware that comprise the PV Power Plant or that is to be used in the performance of the Work.

3.7    Organization. Contractor shall provide staff to supervise and coordinate the work of Contractor and Subcontractors on the Site. Contractor shall maintain adequate staff that are dedicated to the timely completion of the Work, and that have the technical and managerial expertise to control and execute the Work in accordance with the requirements of this Agreement. Contractor shall maintain a qualified and competent organization at the Site with adequate capacity and numbers of construction and commissioning personnel, equipment and facilities to execute the Work in accordance with the terms of this Agreement.

3.8    Contractor-Acquired Permits. Contractor shall obtain, at its sole cost, all Contractor-Acquired Permits. As necessary, Contractor shall provide reasonable technical

-25-

support regarding plant design details or proposed construction processes to assist Owner in obtaining other Applicable Permits. Contractor shall comply with all requirements and perform all tasks identified as Contractor's responsibility in the Division of CUP Responsibility Table attached hereto as Exhibit C-3. ***.

3.9    Hazardous Materials Disposal System. Contractor shall prepare and maintain accurate and complete documentation of all Hazardous Materials used by Contractor or Subcontractors at the Site in connection with the Work, and of the disposal of any such Hazardous Materials, including transportation documentation and the identity of all Subcontractors providing Hazardous Materials disposal services to Contractor at the Site. Contractor shall be responsible for disposal of all wastes generated by it or its Subcontractors during the performance of the Work, including waste water, sanitary wastes, demolition debris, construction debris, spoil, Hazardous Materials for which Contractor is responsible hereunder, surplus excavation material, office wastes and waste but excluding wastes generated by the PV Power Plant from and after the Substantial Completion Date of any applicable Block, which will be responsibility of the Owner. All such wastes shall be handled, stored or disposed of in accordance with Applicable Law in a suitable off-site location. All costs and all regulatory obligations under Applicable Law in connection with the handling, storage and disposal of such wastes are the responsibility of Contractor.

3.10    Maintenance of Site. Contractor shall maintain the Site clear of debris, waste material and rubbish. Contractor at its sole cost and expense shall dispose of such debris, waste material and rubbish in accordance with Applicable Law.

3.11    Site Security. During the performance of the Work at the Site, Contractor shall provide all necessary and reasonably appropriate security at the Site and is responsible for the security of the Site and the protection of the Work.

3.12    Safety.

3.12.1    Contractor Responsibility for Safe Performance of Work. During the performance of the Work, Contractor shall be responsible for the safety of the Persons at the Site and for the safe performance of the Work. Contractor shall give notices and comply with Applicable Laws, ordinances, rules, regulations and lawful orders of public authorities bearing on the safety of persons or property or their protection from damage, injury or loss.

3.12.2    Contractor Safety Program.

(a) Obligation to Provide Safety Program. No later than thirty (30) days before the mobilization at the Site, Contractor shall provide a safety program specifically designed for the Work. The safety program shall describe the safety program to be used by Contractor and the Subcontractors in the performance of the Work at the Site (the “Contractor's Safety Program”). Contractor's Safety Program shall be designed to provide a safe environment during the performance of the Work at such location and shall, among other things, seek to minimize the number of safety-related incidents during the performance of the Work. Contractor's Safety Program shall include requirements

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-26-

for the safety pre-qualification of each of the Subcontractors and a drug and alcohol program (which shall include a drug testing policy).

(b) Owner Review of Safety Program. Owner shall have the right to review and comment on Contractor's Safety Program and Contractor shall cooperate with Owner to incorporate reasonably requested changes into the Safety Program addressing such comments, provided, that if such incorporation of Owner's comments would add to the scope of the Work or materially change the Critical Path, Contractor shall be entitled to a Change In Work.

(c) Coordination with Insurance Providers. Contractor shall coordinate with its insurance providers and ensure Contractor's Safety Program conforms with the requirements of Contractor's insurance providers.

3.12.3    Contractor Safety Representative. Contractor shall designate a safety representative with the necessary qualifications and experience to supervise the implementation of and monitoring of all safety precautions and programs related to the Work. The safety representative shall make routine inspections of the Site and shall hold safety meetings with Contractor's personnel, Subcontractors and others, as Contractor reasonably deems appropriate.

3.12.4    Contractor's Duty to Notify regarding Incidents or Accidents. Contractor shall promptly provide to the Owner Representative:

(i) immediate oral notice of any incident or accident related to the Work;

(ii) written reports of any incidents or accidents that occur related to the Work, no later than twenty-four (24) hours after such incident or accident;

(iii) written accident reports of OSHA lost time or recordable accidents that occur related the Work, prepared in accordance with the safety program approved by Owner pursuant to this Section 3.12; and

(iv) copies of all written communications, including notices, with Governmental Authorities and insurance companies with respect to accidents that occur related to the Work, and thereafter provide such written reports relating thereto as Owner may reasonably request.

In the event the Owner Representative or any other representatives of Owner observes unsafe behaviors or practices by any of Contractor's or any Subcontractor's personnel that are not in compliance with Contractor's Safety Program, Owner shall Notify Contractor and Contractor shall act promptly to take reasonable action to correct such unsafe behavior or practice, and shall promptly Notify Owner in writing of actions reasonably taken by Contractor to prevent such unsafe behavior or practice from occurring again. Notwithstanding Owner's review of Contractor's Safety Program for the Work or Owner's exercise of its rights to Notify Contractor of unsafe practices or behavior pursuant to the preceding sentence, Contractor shall be solely responsible for implementing Contractor's Safety Program and shall perform the Work, and shall

-27-

cause the Subcontractors to implement, follow and perform the Work, in accordance with Contractor's Safety Program.

3.13    Quality Assurance Programs. Contractor shall use quality assurance programs throughout the performance of the Work. Contractor's standard quality assurance program is attached hereto as Exhibit W. Within thirty (30) days following the Effective Date, Contractor shall provide to Owner a quality assurance program specifically tailored to the PV Power Plant with which Contractor shall comply throughout the performance of the Work.

3.14    Contractor Deliverables. Contractor shall issue the Contractor Deliverables to Owner and to other parties in accordance with the Contractor Deliverables Table.

3.15    Training of Operating Personnel. Commencing no later than forty-five (45) days prior to the anticipated Phase Substantial Completion Date for Phase 1 and, again, 45 days prior to the anticipated PV Power Plant Substantial Completion, Contractor shall, or where applicable, shall cause the Subcontractors to, train designated Operating Personnel, including Owner's operations supervision employees in accordance with the training program set forth in Exhibit E.

3.16    Commissioning Personnel. Contractor shall provide or cause to be provided appropriate and qualified installation and commissioning personnel, all equipment, tools, construction and temporary material and all other labor necessary for all of the Work to achieve Substantial Completion of each Block, Phase or PV Power Plant, as applicable.

3.17    ***

3.18    Shipping.

3.18.1    General. Contractor shall provide all shipping and handling of PV Power Plant Hardware, construction material, and equipment, including customs clearance and any required storage and claims (except as set forth in any Material and Equipment Supply Agreement executed pursuant to Section 9.6 with respect to certain costs in connection with the equipment sold under that agreement).

3.18.2    Use of United States-flag Vessels. Contractor agrees:

(i) to utilize privately owned United States-flag commercial vessels to ship at least fifty percent (50%) of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to this Agreement, to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels; and

(ii) To furnish within twenty (20) days following the date of loading for shipments originating within the United States or within thirty (30) Business Days following the date of loading for shipments originating outside the United States, a legible copy of a rated, 'on-board' commercial ocean xxxx-of-lading in English for each shipment of cargo described in subparagraph (i) of this Section 3.18.2 to both the contracting officer (through the Contractor in the case of Subcontractor bills-of-lading)

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-28-

and to the Division of National Cargo, Office of Market Development, Maritime Administration, Xxxxxxxxxx, XX 00000

3.19    Xxxxx-Xxxxx Act Requirements. Contractor shall comply with the requirements of the Xxxxx-Xxxxx Act as set forth in Exhibit AA.

3.20    Escrow Agreement. Contractor shall enter into an agreement for the escrow of certain intellectual property rights in the form of the Escrow Agreement attached as Exhibit BB.

3.21    Subordination Agreement. Contractor shall enter into an agreement for the subordination of its claims of mechanics liens in the form of the Subordination Agreement attached as Exhibit DD. Contractor shall require that all Subcontractors with subcontract prices over *** enter into agreements for the subordination of their clams of mechanics liens substantially in the form of the Subordination Agreement attached as Exhibit DD.

3.22    Contractor Credit Support. ***, Contractor shall as of the date of this Agreement issue a Letter of Credit in the amount of *** running in favor of Owner and providing Credit Support to Owner for the payment by Contractor of its obligations and liabilities under this Agreement and attached hereto as Exhibit FF.

4.     COVENANTS, WARRANTIES AND REPRESENTATIONS

4.1    Contractor.

4.1.1    Organization, Standing and Qualification. Contractor warrants and represents that, as of the Effective Date, it is a corporation, duly incorporated, validly existing and in good standing under the laws of the State of Delaware, and has full power and authority to execute, deliver and perform its obligations hereunder and to engage in the business it presently conducts and contemplates conducting under this Agreement, and is and will be duly licensed or qualified to do business in good standing under the laws of the State of California and in each other jurisdiction in which the nature of the business transacted by it makes such licensing or qualification necessary and where the failure to be so licensed or qualified would have a material adverse effect on its ability to perform its obligations hereunder.

4.1.2    Due Authorization; Enforceability. Contractor represents and warrants that, as of the Effective Date, this Agreement has been duly authorized, executed and delivered by or on behalf of Contractor and is, upon execution and delivery, the legal, valid and binding obligation of Contractor, enforceable against Contractor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and general principles of equity.

4.1.3    No Conflict; No Liens. Contractor represents and warrants that, as of the Effective Date, the execution, delivery and performance by Contractor of this Agreement will not conflict with or violate (a) its organizational documents, (b) any indenture, mortgage, chattel mortgage, deed of trust, lease, conditional sales contract, loan or credit arrangement or other agreement or instrument to which Contractor is a

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-29-

Party or by which it or its properties may be bound or affected, or (c) any Applicable Laws. Except as specifically set forth in this Agreement, Contractor will not subject the PV Power Plant, the Project or any component part thereof or the Site or any portion thereof to any lien other than as contemplated or permitted by this Agreement.

4.1.4    Government Approvals. Other than with respect to the Contractor-Acquired Permits, Contractor represents and warrants that, as of the Effective Date, neither the execution nor delivery by Contractor of this Agreement requires the consent or approval of, or the giving of notice to or registration with, or the taking of any other action in respect of, any Governmental Authority.

4.1.5    No Suits, Proceedings. Contractor represents and warrants that, as of the Effective Date, there are no actions, suits, proceedings, patent or license infringements, or investigations pending or, to Contractor's knowledge, threatened against it at law or in equity before any court (United States or otherwise) or before any Governmental Authority (whether or not covered by insurance) that individually or in the aggregate could result in any materially adverse effect on Contractor's ability to perform its obligations under this Agreement. Contractor has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any court or any Governmental Authority that may result in any such materially adverse effect or such impairment.

4.1.6    Business Practices. Contractor represents and warrants that, as of the Effective Date, none of it or its representatives have made any payment or given anything of value, and Contractor covenants that it will not make any payment or give anything of value, in either case to any government official (including any officer or employee of any Governmental Authority) to influence his, her or its decision or to gain any other advantage for Owner or Contractor in connection with the Work to be performed hereunder. Contractor shall follow Contractor's Parent's Code of Business Conduct and Ethics policy with respect to all of the Work. None of Contractor nor any of its employees or agents shall intentionally take any action with respect to this Agreement or any of the Work that in any way violates any Applicable Laws concerning corrupt practices. Contractor shall immediately Notify Owner of any violation of this Section 4.1.6.

4.1.7    Owner-Provided Information. Contractor acknowledges that Owner does not make any representation or warranty with respect to the accuracy or completeness of documents or information (including oral statements) or opinions expressed by Owner, except as provided in the express representations and warranties of Owner in this Agreement and as set forth in the Owner-Provided Information, on which, in each case, Contractor shall be entitled to rely without verification. Except as set forth in the preceding sentence, Contractor acknowledges and agrees that it is not relying on Owner for any information, data, inferences or conclusions, or other information with respect to Site Conditions, including the surface conditions of the Site and the surrounding areas, or the Work.

-30-

4.1.8    Licenses. Contractor covenants that all Persons who will perform any portion of the Work will have all business and professional certifications if and as required by Applicable Law to perform the services under this Agreement.

4.1.9    Cash Grant.

(a) Contractor agrees that, at the request of Owner and subject to the Cost Segregation Firm entering into a non-disclosure agreement reasonably acceptable to Contractor, it shall reasonably cooperate with the Cost Segregation Firm selected by Owner, and will use reasonable commercial efforts to cause all Subcontractors and Suppliers to cooperate with such Cost Segregation Firm, to provide any and all cost segregation information, supporting documentation and records, including without limitation, supporting documentation for the detailed breakdown of all costs includible in the Work, copies of contracts, invoices for expenses and proof of payments, available to Contractor and/or any Subcontractor or Supplier that is reasonably required or reasonably requested by such Cost Segregation Firm in connection with the preparation of a Cost Segregation Report for each Phase. Pursuant to the non-disclosure agreement, the Cost Segregation Firm will be required to agree that it shall not, and that it shall cause its employees, agents and representatives not to, use the Confidential Information of Contractor for any reason other than the completion of the Cost Segregation Report. In addition, all detailed cost information including, but not limited to, cost and profit margins provided to the Cost Segregation Firm by Contractor supporting the Cost Segregation Report will not be disclosed to Owner or other third parties and will be held by the Cost Segregation Firm in confidence. Unless authorized by Contractor in writing prior to disclosure, the Cost Segregation Firm shall not, and shall cause its employees, agents and representatives not to, disclose the Confidential Information of Contractor to any third parties or to Owner's Representatives, except to those employees and representatives of the Cost Segregation Firm who reasonably require such information for the purposes of the Cost Segregation Report.

(b) Notwithstanding anything else to the contrary in this Agreement, Contractor shall disclose and provide to the Owner such Confidential Information, that is not initially provided under any arrangement or action provided under Section 4.1.9(a), to the extent (x) the Independent Accountant is unable to certify and attest to the accuracy of costs for purposes of any application for a Cash Grant in respect of a Phase without that disclosure of Confidential Information, (y) Owner is advised by counsel that it would violate the penalties of perjury clause of a Section 1603 Application or Section 1603 Commencement of Construction Application without that disclosure of Confidential Information, or (z) the U.S. Department of the Treasury determines that it requires disclosure of Confidential Information to issue as great a Cash Grant as possible.

(c) Contractor shall not claim, or cause to be claimed, any tax credit under Section 45 or Section 48 of the Code, or any cost recovery deduction, with respect to the property described in the Section 1603 Applications or Section 1603 Commencement of Construction Applications. Contractor shall not file its own Section 1603 Application or Section 1603 Commencement of Construction Application or make any other claim to a Cash Grant.

-31-

(d) Owner shall provide Contractor five (5) Business Days written notice before Owner submits a Section 1603 Commencement of Construction Application and/or Section 1603 Application. In connection with Owner filing a Section 1603 Commencement of Construction Application or Section 1603 Application, Contractor shall provide a statement, signed under penalties of perjury and otherwise in compliance with the Cash Grant Guidance, describing the Work that both commenced under this Agreement after the Effective Date (but including any Work performed under the PCA) and has been completed prior to the earlier of the date of such certification and December 31, 2011.

4.1.10    Financial Condition. Contractor represents and warrants that Contractor is financially solvent, able to pay its debts as they mature and possesses sufficient working capital to complete its obligations under this Agreement.

4.2    Owner.

4.2.1    Organization, Standing and Qualification. Owner represents and warrants that, as of the Effective Date, Owner is a limited liability company duly formed, validly existing, and in good standing under the laws of the State of Delaware, and has full power and authority to execute, deliver and perform its obligations hereunder and to engage in the business Owner presently conducts and contemplates conducting, and is and will be duly licensed or qualified to do business and in good standing in 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.

4.2.2    Due Authorization; Enforceability. Owner represents and warrants that, as of the Effective Date, this Agreement has been duly authorized, executed and delivered by or on behalf of Owner and is, upon execution and delivery, the legal, valid, and binding obligation of Owner, enforceable against Owner in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally and by general equitable principles.

4.2.3    No Conflict. Owner represents and warrants that, as of the Effective Date, the execution, delivery and performance by Owner of this Agreement will not conflict with or violate: (a) its organizational documents; (b) any indenture, mortgage, chattel mortgage, deed of trust, lease, conditional sales contract, loan or credit arrangement or other agreement or instrument to which Owner is a Party or by which it or its properties may be bound or affected; or (c) any Applicable Laws.

4.2.4    Governmental Approvals. Except for those permits listed in Exhibit C-2, Owner represents and warrants that all Applicable Permits either have been obtained by Owner and are in full force and effect on the Effective Date or will be obtained and will be in full force and effect on or prior to the date on which they are required, under this Agreement and Applicable Law, so as to permit Contractor to

-32-

commence and prosecute the Work to completion in accordance with the CPM Schedule.

4.2.5    No Suits, Proceedings. Owner represents and warrants that, as of the Effective Date, there are no actions, suits, proceedings or investigations pending or, to Owner's knowledge, threatened against it at law or in equity before any court (United States or otherwise) or before any Governmental Authority (whether or not covered by insurance) that individually or in the aggregate could result in any materially adverse effect on Owner's ability to perform its obligations under this Agreement. Owner has no knowledge of any violation or default with respect to any order, writ, injunction or any decree of any court or any Governmental Authority that may result in any such materially adverse effect or such impairment.

4.2.6    Land. Owner represents and warrants that it holds good and defensible leasehold title in respect of the Site which is sufficient for the execution of the Work and will provide Contractor with all unrestricted access necessary to the Site to perform the Work.

4.2.7    Site Conditions. Owner represents and warrants that the Owner Provided Information contained in Exhibit A-2 is accurate and includes material information relating to the actual Site Conditions.

4.2.8    Financial Condition. Owner represents and warrants that Owner is financially solvent, able to pay its debts as they mature and possesses sufficient working capital to complete its obligations under this Agreement.

5.    COST OF WORK

5.1    Contract Price. In consideration of Contractor's performance of the Work, Owner shall pay to Contractor a contract price of *** (the “Contract Price”). The Contract Price shall be payable in accordance with the Progress Payment Schedule and Article 6 of this Agreement. The Contract Price shall not be changed nor shall Contractor be entitled to any other compensation, reimbursement of expenses or additional payment of any kind without prior written authorization of Owner or as otherwise specifically set forth in this Agreement (including Section 5.2, Article 8 and Article 17). Payments shall be made at the times and in the manner provided in Article 6. For the avoidance of doubt, the Contract Price is inclusive of Contractor Taxes, but is exclusive of all Owner Taxes and builder's all risk insurance, which shall be payable by Owner in accordance with Section 22.4.

5.2    Taxes.

5.2.1    Taxes Included and Excluded in Contract Price. The Contract Price excludes any and all Owner Taxes, which shall be the sole responsibility of Owner, and Owner shall fully indemnify Contractor against any and all such Owner Taxes. The Contract Price includes any and all Contractor Taxes, which shall be the sole responsibility of Contractor, and Contractor shall fully indemnify Owner against any and all such Contractor Taxes.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-33-

5.2.2    Payment of Taxes. Contractor shall timely pay all Contractor Taxes assessed against it under Applicable Law in connection with Work under this Agreement and shall make any and all payroll deductions required by Applicable Law. Owner shall timely pay all Owner Taxes due for which it is responsible under Applicable Law. In the event Contractor or its Subcontractors are required under Applicable Law to pay any Owner Taxes, Contractor or its Subcontractors shall timely pay such amounts, and Owner shall reimburse Contractor within thirty (30) days of delivery of Contractor's invoice for such amounts in accordance with Article 6. In the event Contractor is required under Applicable Law to withhold or impose any Owner Taxes from Owner on any payment under Article 6, Owner shall pay to Contractor such Taxes and Contractor shall timely remit such Taxes to the applicable Governmental Authority under Applicable Law. In the event Owner is required under Applicable Law to withhold or impose any Contractor Taxes from Contractor on any payment under Article 6, Owner shall timely remit such Taxes to the applicable Governmental Authority under Applicable Law. In the event Owner is required under Applicable Law to pay any Contractor Taxes that cannot be fully applied toward payments to be made under Article 6, Owner shall timely pay such amounts, with Contractor to promptly reimburse Owner for the same within ten (10) Business Days, following receipt by Contractor of an invoice for such amounts.

5.3    Fiscal Agreement Costs. *** shall have full financial responsibility and pay any and all costs associated with those obligations set forth in the County Fiscal Agreement attached hereto as Exhibit CC including all costs related to guaranteed tax true-up payments, impact payments and ongoing costs related to the decommissioning security but specifically excluding the ultimate obligation to pay for the decommissioning of the Project. To the extent any credit support or enhancement is required under the County Fiscal Agreement, *** shall be exclusively responsible for the cost of providing such credit support or enhancement but, except where any draw on such credit support or enhancement is due to *** breach of the provisions of the County Fiscal Agreement regarding such credit enhancement, *** shall be exclusively responsible for the cost of any draws made against such credit support or enhancement and any obligation to refresh such credit support or enhancement after such draw. Other than with respect to the cost of decommissioning the Project and the costs described to be *** costs in the immediately preceding sentence, *** shall have no obligation to stand behind, repay or otherwise indemnify *** for any costs under the County Fiscal Agreement.

5.4    Cash Grant Intention and Turnover. It is the intention of the Parties that Owner is the owner of the PV Power Plant and entitled to any Cash Grant payable in respect thereof. Consequently, in the event Contractor receives the Cash Grant in circumstances where Contractor has not reacquired the PV Power Plant or a Phase thereof pursuant to this Agreement or any other agreement between Owner, NRG or an affiliate of NRG on the one hand and Contractor or an Affiliate of Contractor on the other hand, Contractor shall segregate and hold in trust for Owner any such amounts received, and remit any such amounts received to Owner promptly, but in no event more than five (5) days after receipt thereof.

6.    TERMS OF PAYMENT

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-34-

Concurrently with the execution and delivery of this Agreement, Owner is making an initial payment to Contractor as specified on the attached Exhibit I-1. In addition, Owner shall make payments to Contractor as follows:

6.1    Monthly Invoicing. Subject to the terms of this Agreement, Owner shall make progress payments to Contractor on a monthly basis in accordance with the Progress Payment Schedule attached hereto as Exhibit I-1, provided, however, that the cumulative payments of the Contract Price shall not exceed the Cumulative Maximum Amounts as set forth in Exhibit I-2. In connection with a Change in Work for which schedule relief is provided, the CPM Schedule and the Progress Payment Schedule shall be equitably adjusted to account therefor in a Change in Work Form pursuant to Article 17. Subject to the provisions of this Article 6, Contractor shall submit a monthly Contractor's Invoice to Owner in accordance with Section 6.3. Payments due Contractor under this Agreement shall be electronically transferred by wire transfer to the bank account and in accordance with the bank instructions identified in Contractor's most recent invoice in immediately available funds no later than the payment due date. Invoice number and project name shall be referenced in the bank wire reference fields. All payments shall be made in U.S. Dollars.

6.2    Progress Assessment. In order to verify the progress made by Contractor in connection with any Contractor's Invoice submitted by Contractor, Owner shall have the right to inspect the Work or any part thereof that Owner reasonably requests, provided, however, that, subject to Section 6.8, such inspections shall not delay payment by Owner to Contractor of any undisputed amount set forth on Contractor's Invoice.

6.3    Contractor's Invoices. On or about the fifth (5th) Business Day of each month after commencement of the Work, Contractor shall electronically deliver to Owner a Contractor's Invoice for the Work completed in relation to the applicable activities set forth in the Progress Payment Schedule in the immediately preceding month (or portion thereof with respect to the first month after commencement of the Work). Contractor shall not request in any Contractor's Invoice the payment of any sum attributable to Work for which Contractor has already been paid. Each Contractor's Invoice, with the exception of the Final Contractor's Invoice, shall:

(a) (i) identify which applicable activities described on the Progress Payment Schedule for the Work have been completed; (ii) identify the related progress payments set forth on the Progress Payment Schedule for the Work that are then due; and (iii) identify any other known amounts then payable by Owner to Contractor under any provision hereof (without limiting Owner's right to dispute any amounts requested for payment pursuant to Section 6.8); (iv) identify any Owner Taxes that are either required to be withheld by or reimbursed to, Contractor; and (v) provide a summation of the previous amounts invoiced by Contractor and the payments made by Owner; and

(b) be accompanied by: (i) with respect to Work for which payment is requested pursuant to such invoice, (A) conditional waiver and releases upon progress payment (to the extent not previously submitted) substantially in the form of Exhibit F-1 and otherwise complying with the requirements of California

-35-

Civil Code Section 3262(d)(1) (or any successor statute) from Contractor and (B) copies of conditional waiver and releases upon progress payment (to the extent not previously submitted) substantially in the form of Exhibit F-1, and otherwise complying with the requirements of California Civil Code Section 3262(d)(1) (or any successor statute) from each Major Subcontractor with respect to Work performed and invoiced by each Major Subcontractor, in each case sufficient to release all liens and lien rights under Applicable Law upon receipt of such payment with respect to such Work; and (ii) with respect to Work for which payments had previously been made to Contractor, (A) unconditional waiver and releases upon progress payment (to the extent not previously submitted) substantially in the form of Exhibit F-2, and otherwise complying with the requirements of California Civil Code Section 3262(d)(2) (or any successor statute) from Contractor and (B) copies of unconditional waiver and releases upon progress payment (to the extent not previously submitted) substantially in the form of Exhibit F-2, and otherwise complying with the requirements of California Civil Code Section 3262(d)(2) (or any successor statute) from each Major Subcontractor with respect to amounts (if any) due to such Major Subcontractor which are not being contested in good faith by Contractor, in each case sufficient to release all liens and lien rights under Applicable Law with respect to such Work.

Contractor understands and agrees that any Contractor's Invoice that is inaccurate shall not, only to the extent of such deficiency, constitute a valid request for payment.

6.4    Owner Review. Within *** days after Owner receives a Contractor's Invoice and all accompanying documentation required by Section 6.3, Owner shall Notify Contractor concerning any dispute over the accuracy of, or entitlement to, any amount of the submitted Contractor's Invoice and the basis for such dispute. If Owner has not Notified Contractor within such *** day period of any good faith objection thereto, Owner shall be deemed to have approved such Contractor's Invoice.

6.5    Payments.

6.5.1    Payments. Subject to Section 6.8, Owner shall make payment to Contractor for the full undisputed amount specified in each invoice, except as set forth in Section 6.5.2 and Section 6.6, no later than *** days following the date of Owner's receipt of Contractor's Invoice and supporting documentation in the manner and detail and at the time required pursuant to Section 6.3. To the extent payment of a monthly invoiced amount would cause cumulative payments of the Contract Price to exceed the Cumulative Maximum Amounts set forth in Exhibit I-2, Owner may defer payment of such excess to the first monthly period whereby payment of such excess would not result in cumulative payments in excess of the Cumulative Maximum Amount for such period.

6.5.2    Offsets. Without limiting its rights under Section 6.6, Owner may offset against such payment any undisputed amount then due from Contractor

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-36-

pursuant to any provision of this Agreement; provided, however, that disputed amounts shall be handled in accordance with Section 6.8.

6.5.3    Form of Payment. All payments to be made to either Party under this Agreement shall be paid in Dollars and shall be paid electronically (by means of ACH or wire) in immediately available funds. All payments shall be due within *** days of the paying Party's receipt of the other Party's invoice (each, an “Invoice Payment”) or, if such date is not a Business Day, on the immediately succeeding Business Day, to such account as may be designated by each Party from time to time by Notice to the other Party in accordance with Article 29, provided, however, that banking transfer instructions have been provided by the invoicing Party to the paying Party at least five (5) Business Days before the first payment of the paying Party is due and payable.

6.5.4    Late Payments. Any undisputed payment due hereunder that is delinquent by more than *** Business Days, shall, beginning on the next calendar day, bear interest at the prime rate as published in “The Money Rates” Section of The Wall Street Journal (U.S. Edition) on the date that payment was due, plus *** per annum, until paid, but in any event not to exceed the maximum rate permitted by Applicable Law (the “Contract Interest Rate”). The payment of interest unaccompanied by payment of the delinquent payment shall not excuse or cure any Event of Default or delay in such payment. Contractor shall be responsible for paying all Subcontractors in connection with the Work completed by such Subcontractor.

6.6    Retention.

6.6.1    Amount of Retention. Owner shall retain and withhold payment of ***, without duplication, of all Invoice Payments made to Contractor (the “Retention”) such that, at all times and subject to Section 6.6.2, the Retention shall equal *** of the Gross Invoiced Amount, provided, that, Contractor, at its sole cost and at any time, may provide a Retention L/C and the amount of such Retention L/C shall reduce, dollar-for-dollar, the amount of the payments previously or thereafter withheld for Retention under this Section 6.6.1 and Owner shall pay to Contractor any such portion of the Retention for which the Retention L/C is substituted within five (5) days following Owner's receipt of such Retention L/C that is in accordance with this Section 6.6.1.

6.6.2    Release of Retention. Upon Substantial Completion of each Block, Owner shall release the Retention applicable to all amounts invoiced relating to such Block (or if any invoice relates to more than one Block, to the extent relating to such Block) (or, as applicable, the Retention L/C shall be reduced accordingly), except that Owner shall be entitled to deduct from the Retention released to Contractor the Punch List Holdback applicable to such Block; provided, (i) that on the PV Power Plant Substantial Completion Date, Owner shall release all remaining Retention with the exception of the Punch List Holdback associated with all Priority B Items still outstanding as of the PV Power Plant Substantial Completion Date, and (ii) that in the event of an Owner Caused Delay which results in deferral of a Block Substantial

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-37-

Completion Date for a period exceeding *** days, then Owner shall release the Retention for the subject Block less any applicable Punchlist Holdback. In the event a Block Substantial Completion is so deferred, Contractor shall continue with all other Work under this Agreement, and shall, upon completion of the Interconnection Facilities and any Network Upgrades, proceed, consistent with the maintenance of scheduling efficiency in the Work and adherence to the CPM Schedule, to perform any Work necessary to achieve Substantial Completion of the applicable Block.

6.6.3    Release of Punch List Holdback. On a monthly basis, Contractor shall invoice Owner for items on each Punch List which have been completed and accepted by Owner in accordance with Agreement in the preceding month and Owner shall release to Contractor the portion of the Punch List Holdback for such completed items.

6.7    Final Contractor's Invoice. On or after the date on which Contractor delivers to Owner a Notice of Final Completion in accordance with Section 15.7, Contractor shall submit a final Contractor's Invoice (a “Final Contractor's Invoice”) which shall set forth all amounts due to Contractor that remain unpaid in connection with the Work (including (i) any remaining Punch List Holdback that has not been released to Contractor in accordance with Section 6.6.3, (ii) any amount of Performance Liquidated Damages to be refunded by Owner to Contractor pursuant to Section 16.8, and (iii) any Owner Taxes paid by Contractor or any Subcontractor for which Owner has not reimbursed Contractor pursuant to Section 6.5). Unless Owner validly rejects Contractor's Notice of Final Completion in accordance with Section 15.6, Owner shall pay to Contractor the amount due under such Final Contractor's Invoice (the “Final Payment”) in accordance with Section 6.5 and issue to Contractor the Final Completion Certificate in accordance with Section 15.6. Contractor's Final Contractor's Invoice shall include (i) with respect to Work for which the Final Payment is requested, (A) conditional waiver and releases upon final payment substantially in the form of Exhibit F-3, and otherwise complying with the requirements of California Civil Code Section 3262(d)(3) (or any successor statute) from Contractor and (B) copies of conditional waiver and releases upon final payment substantially in the form of Exhibit F-3, and otherwise complying with the requirements of California Civil Code Section 3262(d)(3) (or any successor statute) from each Major Subcontractor with respect to work performed and invoiced by each Major Subcontractor, in each case sufficient to release all liens and lien rights under Applicable Law upon receipt of such Final Payment; and (ii) with respect to Work for which payments had previously been made to Contractor, unconditional waiver and releases upon final payment (to the extent not previously submitted) substantially in the form of Exhibit F-4, and otherwise complying with the requirements of California Civil Code Section 3262(d)(4) (or any successor statute) from Contractor and (B) copies of unconditional waiver and releases upon final payment (to the extent not previously submitted) substantially in the form of Exhibit F-4, and otherwise complying with the requirements of California Civil Code Section 3262(d)(4) (or any successor statute) from each Major Subcontractor with respect to amounts (if any) due to such Major Subcontractor which are not being contested in good faith by Contractor, in each case sufficient to release all liens and lien rights under Applicable Law with respect to such Work, provided that, if Contractor is unable to obtain all such waivers from any such Major Subcontractor, Contractor may, in lieu thereof, furnish to Owner a bond or other security acceptable to Owner to protect Owner, the PV Power Plant and the Site from any liens of such Major Subcontractor or any claims made on account of such liens.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-38-

6.8    Disputes Regarding Payments. Subject to Contractor's rights and remedies under Article 20, failure by Owner to pay any invoiced amount disputed in good faith until resolution of such dispute in accordance with Article 31 hereof shall not alleviate, diminish, modify nor excuse the performance of Contractor or relieve Contractor's obligations to perform hereunder, subject to the provisions of such Article 31. Contractor's acceptance of any payment (including Final Payment), and Owner's payment of any invoiced amount, shall not be deemed to constitute a waiver of amounts that are then in dispute. Contractor and Owner shall use reasonable efforts to resolve all disputed amounts reasonably expeditiously and in any case in accordance with the provisions of Article 31. No payment made hereunder shall be construed to be acceptance or approval of that part of the Work to which such payment relates or to relieve Contractor of any of its obligations hereunder. If a Contractor's Invoice was properly submitted in accordance with all of the provisions of this Agreement and amounts disputed by Owner with respect to such invoice are later resolved in favor of Contractor, Owner shall pay interest on such disputed amounts due to Contractor, at the Contract Interest Rate, from the date on which the interest on such payment was originally due under Section 6.5.4 until the date such payment is actually received by Contractor. If Owner has paid any amounts pursuant to a Contractor's Invoice, which amounts are later disputed by Owner and such dispute is thereafter resolved in favor of Owner, Contractor shall refund any such payment and pay interest on such amount, at the Contract Interest Rate, from the date on which the payment was originally made by Owner until such refunded amount is received by Owner.

7.    COMMENCEMENT AND SCHEDULING OF THE WORK; DESIGN REVIEW

7.1    Notice to Proceed. Concurrently with the execution and delivery of this Agreement Owner is issuing to Contractor a Full Notice to Proceed instructing Contractor to commence performance of Work in accordance with the terms hereof.

7.2    Design Review. As of the date hereof, Owner and Contractor are continuing review the design and selection of equipment for Phase I. In order to afford Owner the opportunity to review Contractor's design and selection of equipment for each subsequent Phase, Contractor shall, on not less than fifteen (15) days prior notice to Owner and at a mutually agreed location, schedule a design review conference (“Design Review Conference”) with respect to the design and selection of equipment for each Phase. Each Design Review Conference shall take place not less than ten (10) days before Contractor submits each design submittal to the County of San Louis Obispo. Contractor shall bear the expenses of the conference facility and meals during the conference. Each of Owner and Contractor shall pay for the travel, lodging and other expenses of its own participants in the Design Review Conference.

7.3    CPM Schedule Submission. Within seven (7) Days after the Effective Date, Contractor shall prepare and submit to Owner for its review a level 2 critical path method schedule for the Work using Primavera Project Planner 6.0 (“Primavera”) based upon the Schedule Milestones set forth in Exhibit G. The CPM Schedule shall represent Contractor's best judgment as to how it shall complete the Work in compliance with the Schedule Milestones including the Phase Substantial Completion Guaranteed Dates, the PV Power Plant Substantial Completion Guaranteed Date, and the Final Completion Guaranteed Date. Within *** Days after the Effective Date, Contractor shall provide to Owner for Owner's review a level 3 schedule for the Work using Primavera (“CPM Schedule”) based upon the Schedule Milestones

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-39-

set forth in Exhibit G. The CPM Schedule shall represent Contractor's best judgment as to how it shall complete the Work in compliance with the Schedule Milestones including the Phase Substantial Completion Guaranteed Dates, the PV Power Plant Substantial Completion Guaranteed Date, and the Final Completion Guaranteed Date. The CPM Schedule shall, at a minimum, include the following activities for the Work: engineering, procurement, equipment fabrication, shipping, construction, commissioning, and testing. Without limiting the foregoing, the CPM Schedule shall: (i) show the duration, early start dates, early finish dates and available float for each activity, show activity number, activity description and responsible Party or Subcontractor, reflect logical relationships between activities with a reasonable duration for each activity, show an uninterrupted critical path from the Full Notice to Proceed through Substantial Completion and Final Completion; and (ii) include a general description of the Work being performed. With each update of the CPM Schedule, Contractor shall provide a material resource-loaded family of curves that supports the CPM Schedule and reflects Contractor's Progress Payment Schedule. Contractor shall use the CPM Schedule in planning, organizing, directing, coordinating, performing and executing the Work, and the CPM Schedule shall be the basis for evaluating progress of the Work.

7.4    Owner Review of the CPM Schedule. Owner may review the CPM Schedule for general conformance with this Agreement, including the Schedule Milestones. If Owner reasonably determines that the CPM Schedule does not conform with this Agreement or the Schedule Milestones in any respect, Contractor shall promptly revise and resubmit the CPM Schedule to Owner. Upon Owner's review of the CPM Schedule and Contractor's revision of the CPM Schedule to correct any deficiencies in the CPM Schedule noted by Owner, the CPM Schedule so reviewed and corrected shall be the baseline CPM Schedule for the Work. Owner's review of the CPM Schedule shall not relieve Contractor of any obligations for the performance of the Work, change the Phase Substantial Completion Guaranteed Dates, the PV Power Plant Substantial Completion Guaranteed Dates, or the Final Completion Guaranteed Dates.

7.5    Progress Reporting, Monthly Updates to CPM Schedule. Contractor shall prepare a Monthly Progress Report and submit it to Owner within five (5) days of the end of each month. As part of the Monthly Progress Report, Contractor shall update the CPM Schedule monthly to reflect the actual progress to date (“Monthly Updated CPM Schedule”); provided, however, Contractor may not modify the Phase Substantial Completion Guaranteed Dates or the PV Power Plant Substantial Completion Guaranteed Date without a Change In Work Form being executed pursuant to this Agreement, nor shall Contractor change any dates that relate to Owner's obligations without obtaining Owner's written consent. If any schedule changes affect a critical path for completion of any Scheduled Milestone, Contractor shall provide Owner with a written explanation of such change along with the Monthly Updated CPM Schedule. The Monthly Updated CPM Schedule shall be in the same detail and form as required by the CPM Schedule.

7.6    Thirty Day Look Ahead Schedule. As part of the Monthly Progress Report, Contractor shall submit to Owner a thirty Day look-ahead schedule (“30 Day Look-ahead Schedule”), which shall be based on the CPM Schedule showing in detail the activities to be performed during the next thirty (30) Days, including target, forecast, and actual dates for each activity, shall be detailed (at a minimum) at level 3 (within the meaning of Primavera), and shall meet all other requirements of a Monthly Updated CPM Schedule.

-40-

7.7    Form of Submittals. All submittals by Contractor to Owner of the CPM Schedule and any Monthly Updated CPM Schedule shall be in accordance with Exhibit B.

7.8    Delay Response Plan. If, at any time during the prosecution of the Work, (i) should the Monthly Updated CPM Schedule show that any activity on the Critical Path of the CPM Schedule is delayed such that Phase Substantial Completion or PV Power Plant Substantial Completion will occur later than the applicable Phase Substantial Completion Guaranteed Date or PV Power Plant Substantial Completion Guaranteed Date, and (ii) Contractor or any of its Subcontractors are in Owner's reasonable judgment responsible for such delay, Owner may, in addition to any other remedies that it may have under this Agreement, require that Contractor prepare a plan to explain and display how it intends recover such delay (“Delay Response Plan”). Contractor shall do the following after the determination by Owner of the requirement for a Delay Response Plan:

7.8.1    Within *** days of such determination, Contractor shall prepare the Delay Response Plan and submit it to Owner for its review. Contractor shall prepare the Delay Response Plan even if Contractor disputes Owner's determination of the need for a Delay Response Plan. The Delay Response Plan shall represent Contractor's best judgment as to how it shall regain compliance with the CPM Schedule and demonstrate the ability to achieve the Schedule Milestones in accordance with this Agreement.

7.8.2    Within *** days of receipt of the Delay Response Plan, Contractor shall participate in a conference with Owner, and with any other Person, including Subcontractors, whom Owner designates to participate, to review and evaluate the Delay Response Plan. Any revisions necessary as a result of this review shall be resubmitted for review by Owner within three (3) days of the conference. The revised Delay Response Plan shall then be the schedule which Contractor shall use in planning, organizing, directing, coordinating, performing, and executing the Work and for regaining compliance with and to achieve the Schedule Milestones in accordance with this Agreement.

7.8.3    As applicable, Contractor shall perform the Work in accordance with the Delay Response Plan.

7.8.4    Until such time as Owner is satisfied that the Delay Response Plan will result in the achievement of the Schedule Milestones in accordance with this Agreement, Contractor shall meet with Owner at the Site on a weekly basis to determine the effectiveness of the Delay Response Plan and to determine whether Contractor will achieve the Schedule Milestones in accordance with this Agreement. If, in the opinion of Owner, Contractor is still behind schedule, Contractor shall be required to prepare another Delay Response Plan to take effect immediately upon written approval by Owner. Contractor shall prepare such Delay Response Plan even if Contractor disputes Owner's opinion.

7.8.5    In preparing and executing the Delay Response Plan, Contractor shall take all reasonable steps to regain compliance with the CPM Schedule.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-41-

7.8.6    The cost of preparing the Delay Response Plan shall be for Contractor's account.

7.8.7    Owner's requirement, review and approval of any Delay Response Plan shall not relieve Contractor of any obligations for the performance of the Work, change the Phase Substantial Completion Guaranteed Dates, the PV Power Plant Substantial Completion Guaranteed Date or the Schedule Milestones.

8.    FORCE MAJEURE; EXCUSABLE EVENT

8.1    Certain Events. No failure or omission to carry out or observe any of the terms, provisions or conditions of this Agreement shall give rise to any claim by either Party against the other Party hereto, or be deemed to be a breach of, or default under, this Agreement if such failure or omission shall be caused by or arise out of a Force Majeure Event or an Excusable Event. No payment obligations of either Party that was due prior to the occurrence of a Force Majeure Event or Excusable Event causing the suspension of performance shall be excused as a result of such occurrence.

8.2    Notice of Force Majeure Event and Excusable Event. If either Party's ability to perform its obligations under this Agreement is affected by a Force Majeure Event or, in the case of Contractor, an Excusable Event, the Party claiming such event shall, promptly after it becomes aware of the occurrence of the event, and in any event no more than *** days after the claiming Party becomes aware of such occurrence, give Notice to the other Party (a “Delay Notice”) of the occurrence of such event, including what date the claiming Party became aware of the occurrence of such event and an estimate of the event's anticipated duration and effect upon the performance of its obligations (to the extent such information is available) and any action being taken to avoid or mitigate its effect. The claiming Party shall have a continuing obligation to deliver to the other Party regular updated reports and any additional documentation and analysis supporting its claim regarding such event promptly after such information is available to the claiming Party. Within *** days after a Force Majeure Event or Excusable Event has ended, the Party that was affected by such Force Majeure Event or Excusable Event shall give Notice to the other Party of: (i) the length of time such Force Majeure Event or Excusable Event was in effect; (ii) the effect such Party claims such Force Majeure Event or Excusable Event had on any Substantial Completion Guaranteed Date, on the dates for achievement of Phase Substantial Completions set forth in Sections 16.1(i), (ii), (iii), and (iv) (but specifically excluding the date specified with respect to Section 16.1(i)(b)), or the Final Completion Guaranteed Date, as applicable and (iii) in the case of a Force Majeure Event or Excusable Event affecting Contractor's performance of its obligations hereunder, any additional costs incurred (which shall be determined in accordance with Article 17) by reason of such Force Majeure Event or Excusable Event.

8.3    Scope of Suspension; Duty to Mitigate. The suspension of, or impact on, performance due to a Force Majeure Event or an Excusable Event shall be of no greater scope and no longer duration than is required by the effect of such Force Majeure Event or Excusable Event. The Party entitled to claim such event shall use its commercially reasonable efforts:

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-42-

(a) to mitigate the duration of, and costs arising from, any suspension or delay in, or other impact on, the performance of its obligations under this Agreement; and

(b) to continue to perform its obligations hereunder not affected by such event.

When the claiming Party is able to resume performance of its obligations under this Agreement, such Party shall give Notice to the other Party to that effect.

8.4    Contractor's Remedies.

8.4.1    Force Majeure Events and Excusable Events. As Contractor's remedy for the occurrence of a Force Majeure Event or an Excusable Event and provided that Contractor has otherwise materially complied with the applicable provisions of Section 8.2, if a Force Majeure Event or an Excusable Event occurs: (a) the CPM Schedule, the applicable Work, the dates for achievement of Phase Substantial Completions set forth in Sections 16.1(i), (ii), (iii), and (iv) (but specifically excluding the date specified with respect to Section 16.1(i)(b)), and any applicable Substantial Completion Guaranteed Date(s) affected by such Force Majeure Event or Excusable Event shall be equitably adjusted to account for the impact of such Force Majeure Event or Excusable Event on Contractor's performance of the Work and (b) if the delay due to a Force Majeure Event or Excusable Event exceeds ***, or if Contractor's costs increase by an amount exceeding *** despite Contractor's efforts to mitigate any such increase pursuant to Section 8.3(a), the Contract Price shall be increased by the sum of the actual and reasonably substantiated costs incurred by Contractor attributable to such Force Majeure Event or Excusable Event.

8.4.2    Changes In Work. Upon the occurrence of a Force Majeure Event or an Excusable Event for which Contractor is entitled to a change in the Contract Price, the CPM Schedule and the applicable Work (and any other key dates, including the dates for achievement of Phase Substantial Completions set forth in Sections 16.1(i), (ii), (iii), and (iv) (but specifically excluding the date specified with respect to Section 16.1(i)(b)), and any applicable Substantial Completion Guaranteed Date(s)) affected by such Force Majeure Event or Excusable Event, Contractor and Owner shall prepare a Change In Work Form in accordance with Article 17. Contractor's sole remedy for the effects of a Force Majeure Event or Excusable Event on Contractor's performance hereunder shall be the changes to this Agreement as set forth in Section 8.4.1.

8.5    Termination Due to Force Majeure and Excusable Event.

8.5.1    Termination Due to Prolonged Force Majeure Event. If a Force Majeure Event has occurred and Contractor is prevented from performing the Work for more than *** consecutive days as a result thereof, either Party may terminate this Agreement by Notice to the other Party.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-43-

8.5.2    Termination Due to Prolonged Excusable Event. If any Excusable Event has occurred and continues for more than *** consecutive days: (i) Contractor may terminate this Agreement by Notice to Owner and (ii) except if such Excusable Event is the result of an Owner-Caused Delay, Owner may terminate this Agreement by Notice to Contractor.

8.5.3    Contractor Right to Payment. Upon any termination pursuant to Section 8.5.1 or Section 8.5.2, Contractor ***.

9.    SUBCONTRACTORS AND SUPPLIERS

9.1    Subcontracts Generally.

9.1.1    Subject to Section 9.2, Contractor may have portions of the Work performed by Subcontractors or Suppliers, including its Affiliates or their employees, provided, that in such event, Contractor shall remain responsible for such Work and Owner will look solely to Contractor as if the Work were performed by Contractor, and Contractor shall cause such Subcontractors and Suppliers to comply with the obligations of Contractor hereunder to the extent applicable to the Work they perform. The total aggregate value of all agreements between Contractor and all Subcontractors that are not required to provide the lien waivers described in Section 6.3 and 6.7 shall not exceed ***.

9.1.2    Not less than ten (10) Business Days prior to entering into any agreement with a Subcontractor in respect of a contract that has an estimated value less than *** for any portion of the Work, Contractor shall Notify Owner of the proposed agreement. Within five (5) Business Days of such Notice, Owner shall Notify Contractor of any election to apply Section 1.A.(2) or Section or 1.A.(3) of Exhibit CC to such agreement. In the event Owner fails to timely provide such Notice, it shall be deemed that Section 1.A.(3) of Exhibit CC shall apply to such agreement.

9.2    Use of Specified Suppliers and Specified Subcontractors. Set forth in Exhibit L is a schedule of Specified Suppliers and Specified Subcontractors who, notwithstanding anything to the contrary herein, Contractor shall be entitled to engage in furtherance of Contractor's obligations under this Agreement without the consent of Owner. Contractor shall Notify Owner of any additional suppliers or subcontractors that Contractor anticipates engaging that, if engaged, would be deemed a Specified Supplier or Specified Subcontractor. Owner shall have the right to review and approve such engagement, such approval not to be unreasonably withheld, delayed or conditioned, and, following such Owner approval, Exhibit L shall be deemed to be amended to reflect such additional approved Specified Supplier or Specified Subcontractor (which thereafter shall be deemed a Specified Supplier or Specified Subcontractor, as applicable). ***. Contractor shall update and amend Exhibit L by Notice to Owner from time to time as necessary to reflect additions or changes thereto in accordance with this Section 9.2. Contractor acknowledges and

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-44-

agrees that it shall remain fully responsible and liable for performance of any obligations of its Suppliers and Subcontractors.

9.3    Assignment. No subcontract or purchase order shall bind or purport to bind Owner, but each subcontract and purchase order with a Major Subcontractor shall provide for the assignment of such subcontract or purchase order to Owner, or at Owner's request, to the Owner Financing Parties (if any), upon the termination of this Agreement pursuant to Section 20.1, provided that each assignee (except for collateral assigns) shall have sufficient creditworthiness, established to Contractor's or the applicable Major Subcontractor's satisfaction, to meet its payment obligations to such Major Subcontractor.

9.4    Supply of Inverter Equipment. Contractor agrees that, unless otherwise consented to in writing by Owner, the PV Power Plant shall be built with inverter equipment supplied by a Specified Supplier set forth in Exhibit L, provided such inverter equipment meets the requirements of this Agreement and all Applicable Laws and Applicable Permits.

9.5    Supply of Photovoltaic Modules. Contractor shall build the PV Power Plant with photovoltaic modules manufactured by SunPower Corporation or its Affiliates. Such modules shall meet the requirements of this Agreement and all Applicable Laws and Applicable Permits.

9.6    Separate Owner Purchase of Photovoltaic Modules and Inverter Equipment. Notwithstanding anything else to the contrary within this Agreement, including (without limitation) Sections 9.4, 9.5 19.2, 23.1 and 23.2 hereof:

9.6.1    Upon delivery of written notice from Owner to Contractor no later than November 1, 2011, Contractor and Owner shall execute and deliver to each other one or more Materials and Equipment Supply Agreements, each of which shall be in the form substantially set forth in Exhibit EE hereto. Owner shall in such notice identify for which Phase the inverter equipment and/or PV modules to be separately sold to Owner under that Materials and Equipment Supply Agreement shall be used.

9.6.2    Contractor shall use and incorporate the PV modules and/or inverter equipment sold to Purchaser under any Materials and Supply Agreement into the Phase set forth in each of such Materials and Equipment Supply Agreement and such notice delivered under Section 9.6.1 in respect of such Materials and Equipment Supply Agreement and otherwise in accordance with this Agreement.

9.6.3    Contractor represents and warrants that the prices charged by Contractor to Owner for PV modules and/or inverter equipment sold to Purchaser under each Materials and Equipment Supply Agreement represent the reasonable fair market value of such PV modules and inverter equipment. Owner reserves the right to audit, through the use of a mutually agreed third Party, Contractor's records to validate compliance with this provision.

9.6.4    Owner shall notify Contractor of any material communications between Owner or Owner Parent, on the one hand, and the U.S. Department of the Treasury, on the other hand, within five (5) Business Days after such material

-45-

communication has been sent or received by Owner or Owner Parent, regarding any Cash Grant with respect to any Phase or the Project or any application for such a Cash Grant. Owner shall provide Contractor with the opportunity to meaningfully participate in meetings and any proceedings involving such applications or Cash Grant (at Contractor's own cost and expense). ***.

10.    LABOR RELATIONS

10.1    General Management of Employees. Notwithstanding the provisions of Section 10.3, and subject to Section 10.5, Contractor shall preserve its rights to exercise and shall exercise its management rights in performing the Work. Such management rights shall include the rights to hire, discharge, promote and transfer employees; to select and remove persons or supervision; to establish and enforce reasonable standards of production; to introduce labor saving PV Power Plant Hardware; to determine the number of craftsmen necessary to perform a task, job or project; and to establish, maintain and enforce rules and regulations conducive to efficient and productive operations.

10.2    Project Labor Agreement. Contract has caused Fluor Constructors International, Inc. (“Fluor”) to assign to Contractor the PLA, and Contractor has assumed all obligations of Fluor thereunder. The Assignment and Assumption Agreement is attached hereto as Exhibit Z-1.

10.3    Labor Disputes. Contractor shall use reasonable efforts to adopt policies and practices designed to avoid Labor Disputes and to minimize the risk of labor-related delays or disruption of the progress of the Work. 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 by any of its Subcontractors. Notwithstanding the foregoing, the settlement of Labor Disputes shall be at the discretion of the Party having the difficulty.

10.4    Personnel Documents. Contractor shall ensure that at the time of hiring, all its personnel and personnel of any Subcontractors performing the Work on the Site are in possession of all such documents as may be required by any and all Applicable Laws.

10.5    Key Personnel. Contractor shall provide staff to supervise and coordinate the Work of Contractor and its Subcontractors on the Site. Subject to Contractor's right to terminate the employment of such personnel pursuant to Section 10.1, Contractor shall ensure that the Key Personnel shall at all times hold and perform the duties of their respective positions (other than

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-46-

with respect to Key Personnel who terminate their employment with Contractor). Any replacement of the Key Personnel shall be subject to the prior written consent of Owner, which shall not be unreasonably withheld or delayed. If Owner fails to respond to a request for consent within five (5) business days after Contractor's request, Owner shall be deemed to have consented to including the proposed individual among the Key Personnel.

10.6    Replacement of Employees and Other Persons at Owner's Request. Notwithstanding anything in this Article 10 to the contrary, within forty-eight (48) hours after receiving a written request by Owner, which request shall include reasonable substantiating details, Contractor shall remove from the PV Power Plant, the Site, and from any performance of the Work, and cause any Subcontractor to remove from the PV Power Plant, the Site and from any performance of the Work, as soon as reasonably practicable, any Person performing the Work (including any of the Key Personnel) whom Owner reasonably believes to be creating a material safety hazard or who engages in misconduct, is incompetent or negligent or whose off-Site conduct Owner reasonably believes is harming or having a negative effect on the perception of the Project or Owner's relationship with the surrounding community. In the event Contractor disagrees that any such Person should be removed pursuant to this Section 10.6, Owner and Contractor shall submit such disagreements to their senior management pursuant to Section 31.3.

11.    INSPECTION

11.1    Inspection. Owner and Owner Representatives, including Owner's Engineer, shall have the right to observe and inspect the Work. Such observations and inspections (i) shall not unduly interfere with performance of the Work, (ii) shall be arranged at reasonable times and with reasonable advance Notice to Contractor and (iii) shall comply with Applicable Law and this Agreement, including Contractor's Safety Program.

12.    SITE CONDITIONS

12.1    Assumed Site Conditions. ***

12.2    Additional Site Condition Information. Owner shall promptly provide to Contractor any additional information relating to Site Conditions that Owner or its Affiliates discover or that comes into Owner's or its Affiliates' possession from time to time.

13.    PERFORMANCE GUARANTEE; COMMISSIONING; TESTING

13.1    Performance Guarantee and Other Requirements. Contractor shall perform the Work so that each Phase and the PV Power Plant satisfies the applicable Performance Guarantee and other requirements set forth in Exhibit X-0, Xxxxxxx X-0, and Exhibit H-4, respectively.

13.2    Commissioning Procedures. Contractor shall provide a Commissioning Plan for each Block and each Phase, as applicable, in accordance with the Commissioning Procedures.

13.3    Performance Acceptance Test Procedures and PV Power Plant Functional Test Procedures. Contractor shall perform the Performance Acceptance Tests for each Block,

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-47-

each Phase and the PV Power Plant in accordance with the Performance Acceptance Test Procedures and, as it relates to the PV Power Plant, the PV Power Plant Functional Test Procedures, all as set forth in the applicable Exhibit H.

14.    SYSTEMS, PERFORMANCE ACCEPTANCE TESTS, AND COMPLETION

14.1    System Turnover.

14.1.1    Designation of Systems. Within *** following the date Owner issues the Notice to Proceed, Contractor shall designate the functional boundaries of discrete parts, components and/or areas of the Facility (each a “System”) that will be utilized by Contractor to facilitate Pre-Commissioning and Commissioning and the orderly turnover of each System of the Facility to Owner and shall submit such designations to Owner for Owner's written approval.

14.1.2    Preparation of System Turnover Package. For each System designated in accordance with Section 14.1.1, Contractor shall develop a System turnover package in accordance with Exhibit B (the “System Turnover Package”).

14.1.3    Preparation of Facility Commissioning Plan. Not less than *** prior to the scheduled date for commencement of Commissioning of the first Block, Contractor shall submit to Owner, for its review and approval, the proposed Commissioning Plan developed in accordance with the requirements set forth in Exhibit M. Owner will review and respond to Contractor's proposed Commissioning Plan within thirty (30) Days following submission to Owner, and the Parties and Owner's Representative shall meet to finalize the Commissioning Plan within five (5) Days of Owner's Representative's response. Thereafter, Contractor shall incorporate any necessary edits to the proposed Commissioning Plan and submit the final version of the Commissioning Plan to Owner within thirty (30) Days of such meeting. Owner's review and approval of the Commissioning Plan shall in no way relieve Contractor of its responsibility for performing the Work in compliance with this Agreement.

14.1.4    Acceptance of a System for Commissioning. As soon as Contractor has completed all Pre-Commissioning activities associated with a System, Contractor shall submit to Owner the initial System Turnover Package for such System. Upon receipt, Owner shall review the System Turnover Package and within ten (10) Days of receipt advise Contractor whether it accepts such System Turnover Package. Upon verification by Owner that a System Turnover Package is complete Owner shall accept the System Turnover Package and shall evidence such acceptance by written notification thereof to Contractor.

14.1.5    Commissioning of a System. Upon Owner's acceptance of a System Turnover Package, Contractor shall proceed with the Commissioning activities associated with such System and conduct all functional testing of the System, as set forth in the Commissioning Plan developed in accordance with Section 14.1.3.

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-48-

14.1.6    Classification of Punch List Items. With each System Turnover Package submitted to Owner, Contractor shall include a punch list for each individual System to compile and update, on a continuing basis, a master list of all outstanding items requiring completion or rectification to achieve, as applicable, Substantial Completion and Final Completion including (i) all outstanding punch list items for each System, and (ii) any other Work remaining to be completed to achieve, as applicable, Substantial Completion and Final Completion (the “Punch List”). The Punch List shall contain:

(a) Those items, the lack of which or the failure to rectify or complete prior to the applicable Substantial Completion which when considered individually or in the aggregate of all Punch List items for the PV Power Plant, would preclude the achievement of the applicable Substantial Completion, including any defect in the design, construction, installation, operation or performance of the System or incomplete Work, that (i) adversely affects the ability of the System or any part of the PV Power Plant to be operated safely and in compliance with Applicable Law or the manufacturer's or vendor's operations and maintenance expectations and recommendations, (ii) prevents, interrupts, disrupts or interferes with or may prevent, interrupt, disrupt or interfere with the normal and continuous operation of such System or any part of the PV Power Plant in accordance with the Plant Specifications (“Priority A Items”); and.

(b) Those items, the lack of which or the failure to rectify or complete which would not preclude the achievement of an applicable Substantial Completion but would preclude the achievement of Final Completion (“Priority B Items”). Priority B Items do not and cannot include Priority A Items.

Included with each Punch List submitted by Contractor under this Section 14.1.6, Contractor shall include, for Owner's approval, its cost estimate for rectifying or completing each Priority B Item (the “Punch List Amount”). Within five (5) Business Days of receipt of each Punch List, Owner shall inform Contractor whether it disagrees with Contractor's estimated Punch List Amounts. If Owner does not notify Contractor of its disagreement with Contractor's estimated Punch List Amounts within such five (5) Business Day Period, the Punch List Amounts shall be deemed approved by Owner. Any disagreement as to Punch List Amounts shall be resolved pursuant to Article 31.

14.1.7    Owner's Right to Identify Punch List Items. Notwithstanding anything herein to the contrary, Owner may, at any time prior to Final Completion, notify Contractor in writing of any deficiency in or incomplete portion of the Work to be added to the Punch List for correction or completion by Contractor in accordance with this Agreement, provided, however, that any such deficiency which constitutes a Priority A Item and which is discovered by or reported to Contractor prior to Substantial Completion shall, at the election of Owner (i) be remedied by Contractor prior to the achievement of Substantial Completion, or (ii) be added to the Punch List as a Priority B Item for remediation prior to Final Completion.

14.1.8    Completion of Punch List Items.

-49-

14.1.8.1    Prior to the applicable Substantial Completion Contractor shall rectify or complete in accordance with the standards set forth in this Agreement, including the Plant Specifications and the Scope of Work, all Priority A Items which have been identified and placed on the Punch List prior to Substantial Completion.

14.1.8.2    Prior to Final Completion, Contractor shall rectify or complete in accordance with the standards set forth in this Agreement, including the Specifications and the Scope of Work, all Priority B Items which have not been satisfactorily rectified or completed prior to Substantial Completion.

14.1.8.3    In the event that Contractor fails to commence in a reasonable period of time after the applicable Substantial Completion or to diligently proceed thereafter with the rectification or completion of Priority B Items remaining at or after the applicable Substantial Completion so as to rectify or complete such Priority B Items by the Final Completion Guaranteed Date, Owner may rectify or complete such Priority B Items itself or through its designee at the expense of Contractor. In the event Owner elects to rectify or complete such Priority B Items, either itself or through a designee, Contractor shall immediately pay Owner (directly, or through forfeiture of the applicable Punch List Holdback amount) all costs and expenses incurred in rectifying or completing such Priority B Items.

14.1.8.4    Following Substantial Completion, Contractor shall complete any outstanding Priority B Items so as not to interrupt, disrupt or interfere with the normal and continuous operation of any portion of the PV Power Plant; provided, however, should an unforeseen circumstance arise such that the completion of any such Priority B Items may cause interruption, disruption or interference with the normal and continuous operation of any portion of the PV Power Plant, Contractor shall complete such Priority B Items during scheduled or unscheduled facility downtime or as otherwise directed by Owner so as not to cause any interruption in Owner's commercial activities at the Site. All Priority B Items shall be completed by the Final Completion Guaranteed Date. In no event shall this Section be interpreted to modify the definition of Priority B Items, as such items are not to be of the character that could interrupt, disrupt or interfere with the normal and continuous operation of any portion of the PV Power Plant.

14.2    Acceptance Tests. Contractor shall perform the Performance Acceptance Tests and the PV Power Plant Functional Tests in accordance with the Performance Acceptance Test Procedures and PV Power Plant Functional Test Procedures. Contractor shall give advance Notice (which Notice may be by email) to Owner of the performance of any Performance Acceptance Test or PV Power Plant Functional Tests at least *** weeks prior to commencing such tests. Contractor shall keep Owner continuously apprised of the schedule for Performance Acceptance Tests and the PV Power Plant Functional Tests including any changes in the schedule, the commencement and performance of such tests, and shall give Owner Representative at least *** advance Notice (which Notice may be by email) of the re-performance of any such tests.

14.2.1    Test Reports. Contractor shall submit a test report for each Performance Acceptance Test and PV Power Plant Functional Tests performed by Contractor within *** days after the completion of such Performance Acceptance

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-50-

Test, which report shall provide the such test results, together with a comparison to, and showing of compliance with, the applicable criteria and other testing requirements and criteria set forth in Exhibit X-0, X-0, X-0, xxx X-0, as applicable. Contractor shall cause all reports to contain the test data and calculations to allow Owner to verify the conclusions of such report.

14.2.2    Owner's Right to Observe Testing. Representatives of Owner, including Owner's Engineer, shall have the right to be present during any tests performed by Contractor under this Article 14.

14.2.3    Failure to Pass Acceptance Tests and PV Power Plant Functional Tests; Non-Conforming Work. Subject to Sections 16.4 through 16.7, if any Block, Phase, or the PV Power Plant as a whole, shall not pass the applicable Performance Acceptance Test or PV Power Plant Functional Tests, Contractor shall, at Contractor's sole cost and expense (subject to Article 8), in accordance with the Performance Acceptance Test Procedures or the PV Power Plant Functional Test Procedures, take such corrective actions as to such Block, the Phase or the PV Power Plant as a whole, as the case may be, to address such failure to pass the Performance Acceptance Test or the PV Power Plant Functional Test Procedures; provided that all such corrective action shall otherwise be in compliance with the requirements for the Work hereunder. If at any time during and promptly after completion of the Performance Acceptance Test or the PV Power Plant Functional Tests (or any re‑performance of any such tests or pursuant to any Remedial Plan, and regardless of achievement of the Performance Guarantee or Minimum Performance Guarantee), Owner advises Contractor in writing of any Defect that was discovered during a Performance Acceptance Test or PV Power Plant Functional Tests, Contractor shall, at Contractor's sole cost and expense (subject to Article 8), correct any Defect (except if such Defect is a Priority B Item, in which case it shall be included on the Punch List with respect to the applicable Block or Phase, as the case may be), and within five (5) Days after correcting such Defect provide Notice to Owner that such corrective measures have been completed. Any dispute regarding the existence or correction of any such Defect shall be resolved pursuant to Article 31.

15.    BLOCK, PHASE AND PV POWER PLANT SUBSTANTIAL COMPLETION

15.1    Block Completion.

15.1.1    Initial Block to Achieve Block Completion The following are the conditions precedent for the initial Block to achieve Block Substantial Completion:

(a) such Block has achieved Mechanical Completion;

(b) all Systems supporting the initial Block have been completed and accepted by Owner in accordance with Section 14.1;

(c) the Interconnection Facilities and the PV Power Plant Interconnection Facilities have been completed to such a point so as to permit the Block Substantial Completion Tests for such Block to be conducted;

-51-

(d) the Block Substantial Completion Tests for such Block have been Successfully Run;

(e) Owner has received all Contractor Deliverables required to be delivered in connection with the first Block Substantial Completion;

(f) the Punch List for such Block has been prepared in accordance with Section 14.1.6;

(g) Contractor shall have delivered the applicable Waiver and Release Forms required to be delivered pursuant to Section 6.3(b) with respect to such Block; and

(i) Contractor has obtained, and Owner has received copies of, all Contractor Acquired Permits necessary for the commencement and ongoing operation of such Block in accordance with Applicable Law.

15.1.2    Each Successive Block to Achieve Block Completion. The following are the conditions precedent for each successive Block (after the initial Block) to achieve Block Completion:

(a) such Block has achieved Mechanical Completion;

(b) all Systems supporting such Block have been completed and accepted by Owner in accordance with Section 14.1;

(c) the Interconnection Facilities and PV Power Plant Interconnection Facilities have been completed to such a point so as to permit the Block Substantial Completion Tests for such Block to be conducted and such Block to be operated in conjunction with all other Blocks that previously achieved Block Substantial Completion;

(d) the Block Substantial Completion Tests for such Block have been Successfully Run;

(e) Owner has received all Contractor Deliverables required to be delivered in connection with such Block Substantial Completion;

(f) the Punch List for such Block has been prepared in accordance with Section 14.1.6;

(g) Contractor has obtained, and Owner has received copies of, all Contractor Acquired Permits necessary for the commencement and ongoing operation of such Block in accordance with Applicable Law; and

(h) Contractor shall have delivered all applicable Waiver and Release Forms required to be delivered pursuant to Section 6.3(b) with respect to such Block.

15.1.3    Block Substantial Completion Notice and Certificate. Contractor shall deliver to Owner a Notice of Substantial Completion with respect to

-52-

each Block as provided in Section 15.4, and the provisions of such Section 15.4 shall apply with respect to the issuance of a Block Substantial Completion Certificate with respect to a Block and the occurrence of the Substantial Completion Date for such Block.

15.2    Phase Substantial Completion.

15.2.1    Phase Substantial Completion. The following are the conditions precedent for each Phase to achieve “Phase Substantial Completion”:

(a) with respect to Phase 1, all of the conditions set forth in Section 15.1.1 have been satisfied (or have been waived by Owner), and, with respect to all Phases other than Phase 1, all of the conditions set forth in Section 15.1.2 have been satisfied (or have been waived by Owner) with respect to each of the Blocks comprising such Phase (including that all of the Blocks comprising such Phase have achieved Substantial Completion);

(b) the Phase Substantial Completion Tests for such Phase have been Successfully Run and Minimum Performance Guarantee for such Phase has been achieved;

(c) except with respect to Phase 1, Owner has received all Contractor Deliverables (if any) required to be delivered in connection with such Phase Substantial Completion Date;

(d) all undisputed Delay Liquidated Damages with respect to such Phase then due and payable, if any, pursuant to Article 15 have been paid;

(e) all undisputed Performance Liquidated Damages with respect to such Phase then due and payable, if any, pursuant to Article 15 have been paid; and

(f) training of Operating Personnel in accordance with Section 3.15 of this Agreement in respect of Phase 1 is complete.

15.2.2    Phase Substantial Completion Notice and Certificate. Contractor shall deliver to Owner a Notice of Substantial Completion with respect to each Phase as provided in Section 15.4, and the provisions of such Section 15.4 shall apply with respect to the issuance of a Phase Substantial Completion Certificate with respect to a Phase and the occurrence of the Substantial Completion Date for such Phase.

15.3    PV Power Plant Substantial Completion.

15.3.1    Conditions to PV Power Plant Substantial Completion. The following are the conditions precedent for the PV Power Plant Substantial Completion:

(a) each Phase has achieved Phase Substantial Completion;

-53-

(b) substation completion has been achieved and all of the Work comprising electrical works required to provide an integrated electrical system from the point of interconnection to each individual Block with the requirements of this Agreement, and Contractor has delivered to Owner copies of all test reports and electrical schematics relating thereto required under this Agreement;

(c) all civil works constituting a part of the Work are complete and meet the requirements of this Agreement;

(d) the PV Power Plant Substantial Completion Tests for the PV Power Plant Substantial Completion have been Successfully Run and the PV Power Plant has achieved the Minimum Performance Guarantee;

(e) Owner has received all Contractor Deliverables (if any) required to be delivered in connection with the PV Power Plant Substantial Completion Date;

(f) Contractor shall have delivered all applicable Waiver and Release Forms required to be delivered pursuant to Section 6.3(b) with respect to the PV Power Plant and all Work;

(g) Contractor has obtained, and Owner has received copies of, all Contractor Acquired Permits necessary for the commencement and ongoing operation of the PV Power Plant in accordance with Applicable Law and otherwise required to be obtained by Contractor hereunder as of such time, such Contractor Acquired Permits are in full force and effect, and Contractor shall have completed all requirements under each such Contractor Acquired Permit required to be completed as of such time, subject to any final Punch List items; and

(h) all training of Operating Personnel in accordance with Section 3.15 of this Agreement is complete.

15.3.2    PV Power Plant Substantial Completion Certificate. Contractor shall deliver to Owner a Notice of Substantial Completion with respect to the PV Power Plant as provided in Section 15.4, and the provisions of such Section 15.4 shall apply with respect to the issuance of the PV Power Plant Substantial Completion Certificate and the occurrence of the PV Power Plant Substantial Completion Date.

15.4    Notice of Substantial Completion. When Contractor believes that it has satisfied the provisions of Section 15.1, 15.2 or 15.3, as applicable, Contractor shall deliver to Owner a Notice of Substantial Completion with respect to the applicable Block or Phase or with respect to the PV Power Plant, as applicable. Owner shall, within ten (10) days after receipt of such Notice, issue the Substantial Completion Certificate with respect to such Block or Phase or with respect to the PV Power Plant, as applicable, or if Owner rejects such Contractor's Notice, respond in writing giving its reasons for such rejection and Contractor shall take the appropriate corrective action to achieve Substantial Completion for such Block, Phase or PV Power Plant, as applicable ***

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-54-

*** Upon completion of any corrective action, Contractor shall provide to Owner a new Notice of Substantial Completion for approval. This process shall be repeated on an iterative basis until Owner accepts (or is deemed to have accepted) such Notice of Substantial Completion, and issues the Substantial Completion Certificate with respect to such Block or Phase or with respect to the PV Power Plant, as applicable. The “Substantial Completion Date” for any applicable Block, Phase or PV Power Plant shall be the day after the date on which the last of the conditions of Section 15.1, 15.2 or 15.3, as applicable, was satisfied or, in the discretion of Owner, waived.

15.5    Final Completion . Final Completion of the PV Power Plant shall be deemed to have occurred only if the following conditions have been satisfied (or waived by Owner):

(a) Substantial Completion for each Phase comprising the PV Power Plant shall have been achieved;

(b) the PV Power Plant Functional Tests have been Successfully Run;

(c) Contractor shall have completed all items on each Punch List (except such items that remain the subject of a Dispute) related to the Blocks and Phases, as applicable, comprising the PV Power Plant;

(d) all Contractor's and Subcontractors' personnel (except any personnel that is to perform operational services pursuant to a separate operation and maintenance contract, if any) shall have left the Site, and all surplus materials, waste materials, rubbish and construction facilities other than those to which Owner holds title shall have been removed from the Site, and any permanent facilities used by Contractor and the Site shall have been restored to the same condition that such permanent facilities and the Site were in on the date Work commenced hereunder, ordinary wear and tear excepted;

(e) Upon Final Payment, Contractor shall have delivered the applicable Waiver and Release Forms contemplated by Section 6.7; and

(f) Owner shall have received all Contractor Deliverables in relation to the PV Power Plant as set forth on the Contractor Deliverables Table.

15.6    Notice of Final Completion. Contractor shall deliver to Owner a Notice of Final Completion stating that Contractor believes it has satisfied the provisions of Section 15.6. Within fifteen (15) days after receipt of the Notice of Final Completion, Owner shall issue the Final Completion Certificate, or if Owner rejects Contractor's Notice of Final Completion, respond in writing giving Owner's reasons for such rejection and Contractor shall promptly take appropriate corrective action to achieve Final Completion. *** Upon completion of such corrective action, Contractor shall provide a new Notice of Final Completion to Owner for approval. This process shall be repeated on an iterative basis until Owner accepts (or is deemed to have accepted) the Notice of Final Completion and issues the Final Completion Certificate. The “Final Completion Date” for the

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-55-

PV Power Plant shall be the day after the date on which the last of the conditions of Section 15.6 was satisfied or, in the discretion of Owner, waived.

15.7    Contractor's Access After Substantial Completion. Notwithstanding anything to the contrary in this Agreement, following Block Substantial Completion of a Block, Contractor shall have the right to access such Block and the Site of such Block, including the right to shut down and/or remove such Block from service, to the extent necessary to perform Work with respect to another portion of the applicable Phase or another Phase, including with respect to performing any applicable testing, as well as to the extent necessary to complete the Punch List items with respect to such Block. Contractor will use reasonable commercial efforts to accomplish the same in a manner that would minimize interference with commercial operation of the applicable Block and minimize the loss of electricity generation by such Block or any other portion of the PV Power Plant. Notwithstanding the foregoing, (x) should a shut-down or a reduction in the operation of a Block, a Phase or any other portion of the PV Power Plant be required to complete or correct any Punch List items, then such reduction or shut‑down shall be scheduled at the reasonable discretion of Owner, and Contractor shall complete such Work during such Owner scheduled period, provided, that any unreasonable delay by Owner in scheduling such reduction or shut-down shall be an Owner-Caused Delay, which shall entitle Contractor to a Change In Work pursuant to Section 8.4, and (y) Contractor acknowledges that Owner may schedule such reduction or shut-down at any time including off -peak hours, nights, weekends and holidays as may be necessary for Contractor to perform the Work. To the extent Contractor accesses a Block or the Site of such Block after Block Substantial Completion to perform Work as permitted under this Agreement, Contractor shall use due care in performing such Work and shall be responsible for any damage to such Block or Site of the Block resulting from Contractor, or any of its Subcontractor's, failure to use due care in performing the Work.

16.    LIQUIDATED DAMAGES; EARLY COMPLETION BONUS

16.1    Delay Liquidated Damages. Contractor agrees that if Phase Substantial Completion for any Phase is not achieved by the applicable date identified in this Section 16.1, then Contractor shall pay liquidated damages (“Delay Liquidated Damages”) to Owner:

(i) with respect to failure (a) to achieve Phase 1 Substantial Completion by the Phase 1 Substantial Completion Guaranteed Date, ***;

(ii) with respect to failure (a) to achieve Phase 2 Substantial Completion by the Phase 2 Substantial Completion Guaranteed Date, ***;

(iii) with respect to failure (a) to achieve Phase 3 Substantial Completion by the Phase 3 Substantial Completion Guaranteed Date, ***;

(iv) with respect to failure (a) to achieve Phase 4 Substantial Completion by the Phase 4 Substantial Completion Guaranteed Date, ***

(v) ***;

provided, however, (a) that any amount Contractor is obligated to pay to Owner under this Section 16.1 shall be subject to the limitations set forth in Article 30, (b) that any amount

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-56-

Contractor is obligated to pay Owner under parts (a)(x) and (a)(y) of Subsections 16.1(i), 16.1(ii), and 16.1(iii), shall be subject to a maximum aggregate liability of $***, (c) that any amount Contractor is obligated to pay Owner under parts (a)(x) and (a)(y) of Subsection 16.1(iv) shall be subject to a maximum aggregate liability of $***, and (d) that any amount Contractor is obligated to pay Owner under Subsection 16.1(v) shall be subject to a maximum liability of $***.

16.2    Bonus Payment for Early Completion. Owner agrees that if Contractor achieves Phase Substantial Completion for a Phase prior to with respect to Xxxxx 0, ***, with respect to Phase 2 or Phase 4, ***, with respect to Xxxxx 0, ***, or achieves the PV Power Plant Substantial Completion prior to the PV Power Plant Substantial Completion Guaranteed Date, Contractor shall be entitled to a bonus payment (“Bonus Payment”) from Owner in the amount of $***.

16.3    Payment of Delay Liquidated Damages and Bonus Payment. The Parties agree that payment of Delay Liquidated Damages, as set forth in Section 16.1, and payment of a Bonus Payment as set forth in Section 16.2, shall be made, as applicable, at the time of Phase Substantial Completion for the applicable Phase.

16.4    Buy-Down Not Available for Minimum Performance Guarantee. If Contractor fails to achieve the Minimum Performance Guarantee for any Phase, Contractor shall continue seeking to achieve at least the Minimum Performance Guarantee for such Phase, and Contractor must continue to perform the Work until Contractor achieves Phase Substantial Completion for such Phase (it being understood that achievement of the Minimum Performance Guarantee is an express condition of Phase Substantial Completion).

16.5    Liquidated Damages for Failure to Satisfy Performance Guarantee. Contractor agrees that if, based on the results of the most recent Performance Acceptance Test that has been Successfully Run with respect to a Phase prior to its Phase Substantial Completion, such Phase (or the PV Power Plant) has satisfied the Minimum Performance Guarantee, but has not satisfied the Performance Guarantee, as calculated in accordance with Exhibit H-2, then, subject to Section 16.6, Contractor shall pay Performance Liquidated Damages to Owner, which shall be calculated as ***. Any amount Contractor is obligated to pay to Owner under this Section 16.5 shall be subject to the limitations set forth in Article 30, and shall be due and payable on or after the applicable Phase Substantial Completion Date (or, as applicable, PV Power Plant Substantial Completion) but in any event within 30 days after Owner's invoice therefor. An example calculation of Performance Liquidated Damages is set forth in Section 1 of Exhibit O.

16.6    Contractor Election. Actions During Cure Period if Minimum Performance Guarantee is Satisfied, but not Performance Guarantee.

16.6.1    Payment of Performance Liquidated Damages; Cure Period; Buy-Down. If, based on the results of the most recent Performance Acceptance Test that has been Successfully Run with respect to a Phase prior to its Phase Substantial Completion, such Phase (or in the case of the last Phase, the PV Power Plant) has

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-57-

satisfied the Minimum Performance Guarantee, but has not satisfied the Performance Guarantee, Contractor, at its option, shall elect to either:

(a) pay any applicable Performance Liquidated Damages as may be due and payable with respect to such Phase (or the PV Power Plant) and have no further obligation to try to achieve the applicable Performance Guarantee; or

(b) continue to attempt to satisfy the applicable Performance Guarantee until the expiration of the applicable Cure Period.

Contractor shall exercise either option provided in this Section 16.6.1 by delivery of Notice to Owner not later than ten (10) days after the Phase Substantial Completion Date or PV Power Plant Substantial Completion Date, as applicable. Notwithstanding Contractor's election of option (b) of this Section 16.6.1, upon the expiration of the applicable Cure Period, if the applicable Performance Guarantee has not been achieved, Contractor shall be deemed to have elected to have no further obligation to try to achieve the applicable Performance Guarantee.

16.6.2    Remedial Plans. If Contractor elects to attempt to satisfy the applicable Performance Guarantee as provided in Section 16.6.1(b) after the Phase Substantial Completion Date or PV Power Plant Substantial Completion Date, as applicable, Contractor shall submit a Remedial Plan to Owner, which shall specify the corrective actions Contractor will take and the commencement date of such corrective action, for Owner's approval, which shall not be unreasonably withheld. The corrective actions described in each Remedial Plan that Contractor proposes to undertake with respect to the Work shall be designed and intended to cause such Phase or the PV Power Plant, as applicable, to satisfy the applicable Performance Guarantee with a reasonable probability of success and may not involve a material risk of damaging or diminishing the performance of any of the Work. The projected completion date for such corrective action must fall within the applicable Cure Period.

16.6.3    Prosecution of Remedial Plan. If Contractor elects to attempt to achieve the applicable Performance Guarantee and proceeds with a Remedial Plan, Contractor shall promptly and diligently pursue completion of such Remedial Plan.

16.6.4    Additional Remedial Plans. If Contractor is unable to satisfy the Performance Guarantee after completing the initial Remedial Plan, Contractor may (i) elect to deliver a new Remedial Plan to Owner within ten (10) days after completion of such initial Remedial Plan or (ii) elect to have no further obligation to try to achieve the Performance Guarantee pursuant to Section 16.6.1(a), provided, however, that such new Remedial Plan shall be deemed null and void if the applicable Cure Period has already expired or will otherwise expire during the period covered thereby.

16.6.5    Access During Cure Period. Notwithstanding anything to the contrary in Article 19 or Article 23, during the Cure Period and upon approval of a Remedial Plan, Owner shall provide Contractor with reasonable access to applicable portions of the PV Power Plant at which point Contractor shall assume the care,

-58-

custody, and control of those parts of the PV Power Plant affected by Contractor's Work pursuant to the applicable Remedial Plan. Contractor shall be granted such access, subject to Section 15.7, for purposes of achieving the Performance Guarantee and for the period as set forth in the applicable Remedial Plan, to:

(a) perform corrective actions pursuant to the applicable Remedial Plan; and

(b) perform the applicable Performance Acceptance Tests, as provided in such Remedial Plan.

16.6.6    Operations During Cure Period. During the Cure Period, Owner shall have the right to operate the applicable Phase and/or the PV Power Plant, including the right to maximize the economic benefits of the Project. Any failure by Owner to provide Contractor with access to the applicable portion of the PV Power Plant as set forth in this Section 16.6.6 shall not be considered a breach of any covenant, condition, representation or warranty of Owner, and shall not be construed as an Owner Event of Default. Contractor's only remedy for a failure by Owner to provide Contractor with access to the applicable Phase and/or the PV Power Plant as set forth in this Section 16.6.6 shall be an equitable extension of the Cure Period until such reasonable access is provided. Notwithstanding the foregoing, Contractor shall be entitled to reasonable access to the applicable Phase and/or the PV Power Plant between sunset and sunrise.

16.7    Extension of Cure Period. Notwithstanding anything to the contrary herein, if Contractor has been unable to cause the applicable Phase or the PV Power Plant to meet the Performance Guarantee on or prior to the expiration of the initial Cure Period, Contractor may submit to Owner for approval a request for extension of such Cure Period and a revised Remedial Plan setting forth in specificity and detail the corrective actions which Contractor proposes to undertake to enable such Phase to achieve the Performance Guarantee during an extended Cure Period pursuant to this Section 16.7. Upon Owner's approval of such revised Remedial Plan, such Cure Period shall be extended for the period of time set forth in the Remedial Plan.

16.8    Sole Remedy; Liquidated Damages Not a Penalty. Without limiting Owner's remedies hereunder with respect to Contractor's unexcused failure to achieve Substantial Completion of a Phase or the PV Power Plant or failure to achieve any Performance Guarantee, the amounts payable under Section 16.1, Section 16.4, or Section 16.5 in each case as limited by Article 30, and the other remedies provided for in this Article 16, shall be the sole and exclusive remedies of Owner for delays in achieving Substantial Completion by the applicable Substantial Completion Guaranteed Date, or for failure to achieve the Performance Guarantee with respect to any Phase or the PV Power Plant as a whole. The Parties agree that Owner's actual damages in the event of such delays or failures would be extremely difficult or impracticable to determine. After negotiation, the Parties have agreed that the Delay Liquidated Damages, PV Plant Substantial Completion Delay Liquidated Damages, and the Performance Liquidated Damages are in the nature of liquidated damages and are a reasonable and appropriate measure of the damages that Owner would incur as a result of such delays or failures, and do not represent a penalty.

-59-

16.9    Enforceability. The Parties explicitly agree and intend that the provisions of this Article 16 shall be fully enforceable by any court exercising jurisdiction over any dispute between the Parties arising under this Agreement. Each Party hereby irrevocably waives any defenses available under law or equity relating to the enforceability of the liquidated damages provisions set forth in this Article 16 on the grounds that such liquidated damages provisions should not be enforced as constituting a penalty or a forfeiture.

16.10    Achievement of Performance Guarantee; Reimbursement of Liquidated Damages.

16.10.1Reimbursement of Performance Liquidated Damages. Upon completion of any Performance Acceptance Test with respect to a Phase or with respect to the PV Power Plant in accordance with this Agreement, the Parties shall meet and review the results of such Performance Acceptance Test. Based on the results of such Performance Acceptance Test that has been Successfully Run prior to the expiration of the Cure Period (the “Final Performance Acceptance Test”), the Parties shall apply the following:

(a) Performance Guarantee Satisfied. If such Final Performance Acceptance Test indicates that the Performance Guarantee with respect to all of Phases of the Project through and including such Phase, or with respect to the PV Power Plant as a whole, as applicable, has been achieved, then within ten (10) Business Days thereafter, Owner shall refund to Contractor:

(i) the amount of any Performance Liquidated Damages previously paid by Contractor pursuant to Section 16.5 or offset by Owner, minus

(ii) as the sole compensation to Owner for its lost revenue during the Cure Period) an amount equal to the following: ***. For purposes of this Section 16.10(a), the “Cure Period Deficiency” is calculated as the Guaranteed Capacity less the Tested Capacity demonstrated by the Performance Acceptance Test used to achieve, as applicable, Phase Substantial Completion or PV Plant Substantial Completion, expressed in kW. An example calculation of the foregoing is set forth in Section 2.1 of Exhibit O.

(b) Performance Guarantee Not Satisfied. If such Final Performance Acceptance Test indicates that the Performance Guarantee with respect to all of Phases of the Project through and including such Phase, or with respect to the PV Power Plant as a whole, as applicable, has not been satisfied, but the amount paid by Contractor (or offset by Owner) as Performance Liquidated Damages pursuant to Section 16.5 exceeds the amount that Contractor would have paid based on the results of such Final Performance Acceptance Test, then within ten (10) Business Days after an invoice is delivered to Owner, Owner shall refund to Contractor the amount of any such excess Performance Liquidated Damages paid by Contractor pursuant to Section 16.5 or offset by Owner (i.e., the difference between the amount of Performance Liquidated Damages paid under Section 16.5 and those that would have been payable if the results of such Final Performance Acceptance Test had been used to achieve the applicable Phase Substantial

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-60-

Completion for prior Phase(s) or PV Power Plant Substantial Completion, as applicable) minus (as the sole compensation to Owner for its lost revenue during the Cure Period) an amount equal to the following: ***. An example calculation of the foregoing is set forth in Section 2.2 of Exhibit O.

17.    CHANGES IN THE WORK

17.1    Change In Work. A Change In Work shall result from one of the following:

(a) the addition to, modification of, or deletion from the Work (performed or yet to be performed) during the performance of the Work mutually agreed to by the Parties in accordance with Sections 17.2, 17.4, 17.5 and 17.6;

(b) the occurrence of a Force Majeure Event or an Excusable Event (as and only to the extent permitted by Section 8.4);

(c) an Owner Directive in accordance with Section 17.7;

(d) a failure by Owner to provide access as provided in Section 15.8; or

(e) any other event or circumstance specifically identified in this Agreement as necessitating a Change In Work or entitling either Party to seek a Change In Work.

17.2    By Owner. Subject to Section 17.4, Owner shall have the right to make changes in the Work, within the general scope thereof and consistent with this Agreement, whether such changes are modifications, accelerations, alterations, additions or deletions. All such changes shall be made in accordance with this Article 17, shall be documented in accordance with Sections 17.4 through 17.8 and shall be considered, for all purposes of this Agreement, as part of the Work.

17.3    Adjustment to CPM Schedule Due to Force Majeure Events or Excusable Events. If a Force Majeure Event or an Excusable Event occurs, the CPM Schedule, the Guaranteed Substantial Completion Dates, the dates for achievement of Phase Substantial Completions set forth in Sections 16.1(i), (ii), (iii), and (iv) (but specifically excluding the date specified with respect to Section 16.1(i)(b)), any other applicable Milestones and the Contract Price shall be modified as and to the extent provided in Section 8.4, as the case may be, and as set forth in the Change In Work Form accepted by Owner.

17.4    Preparation of Change In Work Form.

17.4.1    Due to Owner Initiated Change In Work. If Owner provides Notice to Contractor that Owner is proposing a Change in accordance with Section 17.2, Contractor shall, as soon as practicable, prepare a Change in Work Form (as set forth in Exhibit S), subject to the remaining provisions of this Section 17.4.1, which shall include a detailed proposal for such Change In Work, together with a detailed explanation and basis thereof, and any increase or decrease in the cost required to complete the Work (priced in accordance with Exhibit S-4).

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-61-

17.4.2    Due to Excusable Event or a Force Majeure Event. If a Force Majeure Event or an Excusable Event occurs for which Contractor is entitled to an adjustment to the CPM Schedule and/or the Contract Price pursuant to Section 8.4.1, then Contractor shall, as soon as practicable, prepare and submit to Owner in accordance with Section 8.4.2 a proposed Change In Work Form, which shall include (a) any projected change in the Contract Price occasioned by such Change In Work and (b) the effect such Change In Work could be expected to have on the CPM Schedule or any other schedule events or dates for performance by Contractor hereunder, in each case all as and to the extent provided in Section 8.4.1 with respect to such Force Majeure Event or Excusable Event and as set forth in the Change In Work Form.

17.5    Execution of Change In Work Form. If Contractor and Owner reach agreement on all matters that constitute the Change In Work, then the Parties shall execute a Change In Work Form as set forth in Exhibit S-1 (at no cost to Owner for preparation of the form) and Contractor shall perform the Work, as set forth in such Change In Work Form. If the Parties agree that a Change In Work has occurred pursuant to Section 17.1 but cannot agree on the appropriate adjustment to the Contract Price, Contractor shall, unless otherwise agreed, proceed with such Change in Work and be reimbursed on a time and materials basis at Contractor's then applicable personnel and labor rates as described in Exhibit S (or at the rates of the applicable Subcontractors). If the Parties dispute that a Change in Work has occurred, or dispute the appropriate adjustment to the CPM Schedule associated with such Change in Work, those disputes shall be resolved per Article 31.

17.6    No Obligation or Payment Without Executed Change In Work Form. Contractor shall not be obligated to undertake a Change In Work until the Parties have executed a Change In Work Form, except as set forth in Sections 17.5 and 17.7, or if immediate action is reasonably required to address an emergency which endangers human health or property. In the absence of an executed Change In Work Form, except as set forth in Section 17.7 or in the event of such emergency, if Contractor undertakes any changes in the Work such changes shall be made at Contractor's risk and expense and Contractor shall not be entitled to any schedule modification or payment hereunder for undertaking such changes (subject to Contractor's right to a Change In Work in the circumstances specified in Sections 8.4.1 and 8.4.2).

17.7    Owner Directives. If Contractor and Owner are unable to agree on whether a Change In Work has occurred or on the matters described in a Change In Work Form issued as set forth in Exhibit S-2 or S-3, as applicable (other than the appropriate adjustment to the Contract Price which shall be addressed as set forth in Section 17.5), regardless of whether such Change In Work Form was initiated by Contractor or by Owner, Contractor shall perform the Work as Owner so directs in writing (an “Owner Directive”), provided that such Owner Directive would not adversely and materially affect Contractor's ability to meet the Performance Guarantees or its Warranty obligations hereunder or otherwise to perform the Work in accordance with this Agreement, and Contractor shall be reimbursed for such Change In Work pursuant to an Owner Directive on a time and materials basis at Contractor's then applicable personnel and labor rates as described in Exhibit S (or at the rates of the applicable Subcontractors). If an Owner Directive causes Contractor to depart from the CPM Schedule,

-62-

then the Parties shall execute a Change of Work Form to record the change in the CPM Schedule and any affected Schedule Milestones.

17.8    Disputed Changes In Work. Subject to Section 17.5, any disputes regarding a Change In Work Form or whether a Change In Work has occurred or that are otherwise related to a Change In Work shall be subject to the dispute resolution provisions of Article 31.

17.9    Change for Contractor's Convenience. Contractor shall have the right, at its own cost and expense, to take any action that is generally consistent with this Agreement and that Contractor, in good faith, determines to be reasonably necessary to meet the requirements of this Agreement. No Change In Work shall be deemed to have occurred in connection with any such change or action subject to the following sentence. If such action involves: (a) substitution of material PV Power Plant Hardware, (b) the substitution or replacement of a Major Subcontractor (other than if such substitute or replacement Subcontractor is a Specified Subcontractor or Specified Supplier identified on Exhibit L), or (c) a material deletion from, or material modification of, the Work, as described in this Agreement, Contractor shall obtain Owner's written approval prior to undertaking such action.

18.    WARRANTIES CONCERNING THE WORK

18.1    Defect *** Warranties. With respect to each Block of the PV Power Plant, Contractor warrants to Owner:

18.1.1    Defect Warranty. That those Systems that comprise a Block, shall, upon Block Substantial Completion: (a) be free from Defects in materials, construction, fabrication and workmanship; (b) be new and unused; and (c) be of good quality and in good condition (collectively, the “Defect Warranty”).

18.1.2    ***.

18.1.3    PV Module Warranty. Contractor shall issue (or shall cause an Affiliate thereof to issue) warranties for the PV modules in accordance with the Module Warranty Terms and Conditions attached as Exhibit R. Notwithstanding anything in Exhibit R to the contrary, the warranties for the PV modules shall be deemed to commence ***.

18.2    Warranty Periods.

18.2.1    Defect Warranty Period. Contractor shall have no liability under the Defect Warranty for a particular Block from and after the end of the *** period commencing on the applicable Block Substantial Completion Date (such period, the “Defect Warranty Period”), provided, however, that:

(a) the warranty period for any item or part required to be re-performed, repaired, corrected or replaced following discovery of a Defect during the applicable Defect Warranty Period shall continue until the end of the later of (a) the expiration of such Defect Warranty Period and (b) *** from the date of completion of such repair or replacement; and

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-63-

(b) ***

18.2.2    ***.

18.2.3    Warranty Claims. With respect to warranty claims under Section 18.2.1 or Section 18.2.2, as applicable, Contractor shall be liable to Owner in connection with such Defects prior to the end of the applicable Warranty Period so long as Owner complies with its Notice obligations under this Article 18.

18.3    Exclusions.

18.3.1    Defect Warranty ***. The Defect Warranty *** shall not apply to:

(a) ***

(b) ***

18.3.2    Operating Personnel. Notwithstanding the provisions of Section 18.3.1(b), prior to the training of the Operating Personnel by Contractor pursuant to Section 3.15, any adverse stress or damage to the PV Power Plant caused by Operating Personnel while under the direction of Contractor shall be the responsibility of Contractor, except to the extent such Operating Personnel's acts or omissions constitute negligence, gross negligence, willful misconduct or a failure to comply with Contractor's instructions.

18.4    Enforcement by Owner; Subcontractor Warranties.

18.4.1    Supplier Warranties. Contractor shall obtain standard defect warranties from Subcontractors of the PV Power Plant Hardware, including the PV modules, supplied under this Agreement to the extent such warranties are available on commercially reasonable terms.

18.4.2    ***

18.4.3    Assignment of Warranties by Contractor. If this Agreement has been terminated in accordance with Article 20, or otherwise at Final Completion, Contractor shall assign all Subcontractor warranties to Owner, subject to the terms and conditions of such warranties; provided, however, that, notwithstanding such assignment, Contractor shall be entitled to enforce each such warranty through the end of the applicable Warranty Period. Contractor shall cause Owner to be an express third-party beneficiary of all such representations, warranties, guarantees and obligations of the Suppliers of all PV modules and other PV Power Plant Hardware.

18.5    Correction of Defects.

18.5.1    Notice of Warranty Claim. ***

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-64-

18.5.2    Upon Contractor's Request. ***

18.5.3    Failure of Contractor to Perform Warranty Work. ***

18.6    Limitations On Warranties. ***

19.    TITLE

19.1    Title; No Encumbrances. Except as otherwise provided in any Material and Equipment Supply Agreement executed pursuant to Section 9.6, to the extent Owner's payments to Contractor are fully made in accordance with this Agreement, subject to Section 19.2, Contractor warrants that Owner shall have good title, free and clear of all liens, claims, charges, security interests and encumbrances whatsoever (other than those created by or attributable to Owner, any third-party or that result from Owner's failure to pay Owner Taxes hereunder) to all Work, PV Power Plant Hardware and other items furnished by Contractor or any of its Subcontractors that become part of the PV Power Plant or that are to be used for the operation, maintenance or repair thereof in accordance with this Agreement.

19.2    Transfer. Except as otherwise provided in any Material and Equipment Supply Agreement executed pursuant to Section 9.6, title to each Block shall transfer to Owner upon the Block Substantial Completion for such Block, subject to Section 19.1. Upon such transfer of title Owner shall assume and take care, custody and control of such Block in accordance with Section 23.1; provided that nothing in this Section 19.2, in Section 23.1 or elsewhere in this Agreement shall reduce, limit or otherwise affect Contractor's rights or Owner's obligations under Sections 15.7 or 16.6.5.

19.3    Custody During Performance. The transfer of title to a Block shall in no way affect Owner's rights or obligations as set forth in any other provision of this Agreement. Subject to Section 23.1, Contractor shall have care, custody, and control and risk of loss of all PV Power Plant Hardware and other items with respect to a Block and exercise due care with respect thereto until the earlier of the Block Substantial Completion Date of such Block or the date of termination of this Agreement.

20.    DEFAULTS AND REMEDIES

20.1    Contractor Events of Default. Contractor shall be in default of its obligations pursuant to this Agreement upon the occurrence of any one or more events of default set forth below (each, a “Contractor Event of Default”):

(a) Contractor *** becomes insolvent, generally does not pay its debts as they become due, admits in writing its inability to pay its debts, makes a general assignment for the benefit of creditors, or Contractor *** commences any case, proceeding or other action seeking reorganization or receivership, or adopts an arrangement with creditors, under any bankruptcy, insolvency, reorganization or similar law of the United States or any state thereof for the relief of creditors or affecting the rights or remedies of creditors generally;

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-65-

(b) insolvency, receivership, reorganization, or bankruptcy or similar proceedings are commenced against Contractor *** and such proceeding shall remain undismissed or unstayed for a period of sixty (60) days;

(c) any material representation or warranty made by Contractor herein was materially false or misleading when made and if capable of remedy, Contractor fails to remedy such materially false or misleading representation or warranty within thirty (30) days after Contractor receives a Notice from Owner with respect thereto, except such thirty (30) day limit shall be extended if: (i) curing such failure reasonably requires more than thirty (30) days; and (ii) Contractor commences such cure within such thirty (30) day period and diligently prosecutes such cure, in each case after the date on which Contractor receives a Notice from Owner with respect thereto;

(d) Contractor assigns or transfers this Agreement or any right or interest herein except in accordance with Article 26;

(e) Contractor fails to maintain any insurance coverages required of it in accordance with Article 22 and Contractor fails to remedy such breach within ten (10) days after the earlier of the date on which Contractor first becomes aware of or receives a Notice from Owner with respect thereto, except such ten (10) day limit shall be extended if: (i) curing such failure reasonably requires more than ten (10) days; and (ii) Contractor commences such cure within such ten (10) day period and diligently prosecutes such cure;

(f) Contractor fails to perform any provision of this Agreement providing for the payment of money to Owner, except for any disputed amounts, and such failure continues for twenty (20) days after Contractor has received a Notice from Owner, or Contractor fails to perform any material provision of this Agreement not otherwise addressed in this Section 20.1, and such failure continues for thirty (30) days, except such thirty (30) day limit shall be extended if: (i) curing such failure reasonably requires more than thirty (30) days; and (ii) Contractor commences such cure within such thirty (30) day period and diligently prosecutes such cure, in each case after the date on which Contractor first receives a Notice from Owner with respect thereto;

(g) the Substantial Completion Date for any Phase or the PV Power Plant has not occurred by the *** day after the applicable Phase Substantial Completion Guaranteed Date or the PV Power Plant Substantial Completion Guaranteed Date, as such date may be extended pursuant to the provisions of this Agreement; or

(h) ***

20.2    Owner's Rights and Remedies. If a Contractor Event of Default occurs, subject to Article 30, Owner shall have the following rights and remedies and may elect to pursue any or all of them, in addition to any other rights and remedies that may be available to Owner hereunder, and Contractor shall have the following obligations:

(a) Owner may terminate this Agreement by giving Notice of such termination to Contractor;

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-66-

(b) Owner may proceed against the *** or any security provided by Contractor to Owner in support of Contractor's performance of its obligations under this Agreement;

(c) if Owner terminates this Agreement in accordance with the provisions hereof, Contractor shall withdraw from the Site, shall assign (to the extent such subcontract may be assigned) to Owner (without recourse to Contractor) such of Contractor's subcontracts as Owner may request, and shall license, in the manner provided herein, to Owner all Contract Intellectual Property of Contractor related to the Work reasonably necessary to permit Owner to complete or cause the completion of the Work, and in connection therewith Contractor authorizes Owner and its respective agents to use such information in completing the Work, shall remove such materials, equipment, tools and instruments used by and any debris or waste materials generated by Contractor in the performance of the Work as Owner may direct, and Owner may take possession of any or all Contractor Deliverables necessary for completion of the Work (whether or not such Contractor Deliverables are complete);

(d) Owner may seek equitable relief to preserve the rights of Owner during the pendency of any dispute or to enforce its rights under this Agreement;

(e) Owner may pursue the dispute resolution procedures set forth in Article 31 to enforce the provisions of this Agreement;

(f) Owner may make such payments or perform such obligations as are reasonably required to cure any Contractor Event of Default and either offset the cost of such payment or performance against payments otherwise due to Contractor under this Agreement or Contractor shall be otherwise liable to pay and reimburse such amounts to Owner;

(g) if Owner terminates this Agreement, Owner may seek damages as provided in Section 21.1; and

(h) Owner may suspend the Work by giving Notice of such suspension to Contractor pursuant to Section 21.4.2.

20.3    Owner Event of Default. Owner shall be in default of its obligations pursuant to this Agreement upon the occurrence of any one or more events of default set forth below (each, an “Owner Event of Default”):

(a) Owner *** becomes insolvent, generally does not pay its debts as they become due, admits in writing its inability to pay its debts, makes a general assignment for the benefit of creditors, or Owner *** commences any case, proceeding or other action seeking reorganization or receivership, or adopts an arrangement with creditors, under any bankruptcy, insolvency, reorganization or similar law of the United States or any state thereof for the relief of creditors or affecting the rights or remedies of creditors generally;

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-67-

(b) insolvency, receivership, reorganization, or bankruptcy or similar proceedings are commenced against Owner *** and such proceeding shall remain undismissed or unstayed for a period of sixty (60) days;

(c) any material representation or warranty made by Owner herein was false or misleading when made and if capable of remedy, Owner fails to remedy such false or misleading representation or warranty within thirty (30) days after Owner receives a Notice from Contractor with respect thereto, except such thirty (30) day limit shall be extended if: (i) curing such failure reasonably requires more than thirty (30) days; and (ii) Owner commences such cure within such thirty (30) day period and diligently prosecutes such cure, in each case after the date on which Owner receives a Notice from Contractor with respect thereto;

(d) Owner assigns or transfers this Agreement or any right or interest herein, except in accordance with Article 26;

(e) Owner fails to perform any provision of this Agreement requiring Owner to pay undisputed sums to Contractor and such failure continues for ten (10) days after Owner has received a Notice from Contractor with respect thereto;

(f) Owner fails to perform any material provision of this Agreement not otherwise addressed in this Section 20.3, and such failure continues for (30) days, except such thirty (30) day limit shall be extended if: (i) curing such failure reasonably requires more than thirty (30) days; and (ii) Owner commences such cure within such thirty (30) day period and diligently prosecutes such cure, in each case after the date on which Owner first receives a Notice from Contractor with respect thereto;

(g) ***; or

(h) Owner fails to maintain any insurance coverages required of it in accordance with Article 22 and Owner fails to remedy such breach within thirty (30) days after the date on which Owner first receives a Notice from Contractor with respect thereto, except such thirty (30) day limit shall be extended if: (i) curing such failure reasonably requires more than thirty (30) days; and (ii) Contractor commences such cure within such thirty (30) day period and diligently prosecutes such cure.

20.4    Contractor's Rights and Remedies. If an Owner Event of Default occurs, subject to Article 30, Contractor shall have the following rights and remedies and may elect to pursue any or all of them, in addition to any other rights and remedies that may be available to Contractor hereunder:

(a) to terminate this Agreement upon providing Notice of such termination to Owner (in which event Contractor shall be compensated in the manner described in Section 20.5);

(b) to proceed against the *** or any other security provided by Owner to Contractor in support Owner's performance of its obligations under this Agreement;

*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.

-68-

(c) to seek equitable relief to preserve the rights of Contractor during the pendency of any dispute or to enforce its rights under this Agreement;

(d) to pursue the dispute resolution procedures set forth in Article 31 to enforce the provisions of this Agreement;

(e) Contractor may proceed against *** or any security provided by Owner to Contractor in support Owner's performance of its obligations under this Agreement; and

(f) subject (in the case of an Owner Default that is reasonably Disputed by Owner) to Section 31.6, Contractor may suspend the Work by giving Notice of such suspension to Owner; provided that such Notice of suspension may be given by Contractor either concurrently or at any time after the Notice described in Section 20.3(e).

20.5    Termination Payment. In addition to the remedies provided in Section 20.3, if Contractor terminates this Agreement due to an Owner Event of Default, then as compensation through the effective date of such termination:

(a) Owner shall pay to Contractor an amount ***; and

(b) Owner shall pay to Contractor ***;

The amounts payable above shall be grossed up to the extent the Owner is required to make any withholdings under Applicable Law in respect of any of such amounts, such that the amount received by Contractor shall be no less than Contractor would receive in accordance with the foregoing if no such withholding were required. Contractor shall provide reasonable evidence for the costs associated with this Section 20.4 and take reasonable steps to mitigate such costs, l