ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT (Antelope Valley Solar Project 308.97 MW at the Delivery Point)

EXHIBIT 10.96

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

(Antelope Valley Solar Project 308.97 MW at the Delivery Point)

Dated as of December 28, 2012

By and between

SOLAR STAR CALIFORNIA XIX, LLC

And

SUNPOWER CORPORATION, SYSTEMS

Contractor's License No. 890895

TABLE OF CONTENTS



			Page
ARTICLE 1. CONTRACT INTERPRETATION AND EFFECTIVENESS			2
	1.1	Rules of interpretation	2
	1.2	Defined terms	3
	1.3	Order of precedence	22
	1.4	Entire agreement	22
	1.5	No agency	22
	1.6	Invalidity	22
	1.7	Binding effect	23
	1.8	Counterparts	23
	1.9	Effective date	23
	1.10	Time is of the Essence	23
	1.11	Notice to Proceed	23
ARTICLE 2. REPRESENTATIONS AND WARRANTIES			25
	2.1	Representations and Warranties of Contractor	25
	2.2	Representations and Warranties of Owner	27
ARTICLE 3. CONTRACTOR'S OBLIGATIONS			28
	3.1	Performance of Work	28
	3.2	Scope of Work	29
	3.3	Properly Licensed; Sufficient Qualified Personnel	29
	3.4	Utilities	29
	3.5	Contract Documents	29
	3.6	Record-Keeping	30
	3.7	Materials and Equipment	30
	3.8	Compliance and Cooperation With EITC Requirements, Applicable Laws, Applicable Permits Applicable Codes and Industry Standards	30
	3.9	Contractor Acquired Permits; Other Approvals	30
	3.10	Spare Parts	30
	3.11	Construction Schedule; Progress Reports; Meetings	30
	3.12	Transportation	32
	3.13	Security	32
	3.14	Safety; Quality Assurance	32
	3.15	Clean-up	33
	3.16	Suppliers and Subcontractors	33
	3.17	Insurance	34
	3.18	Contractor's Personnel	34
	3.19	Hazardous Materials	34
	3.20	Contractor Performance Security	34
	3.21	Business Practices	34
	3.22	Delay Response Plan	34
	3.23	Project Labor Agreement; Employees	34
	3.24	Notification	35



	3.25	Site Conditions	36
	3.26	Other Reports and Quality Control Documents	36
	3.27	Construction Methods	36
	3.28	Cooperation; Access	36
	3.29	Business Ethics	37
	3.30	Real Property Rights	37
	3.31	***	37
	3.32	***	37
	3.33	***	37
	3.34	Quitclaim.	38
ARTICLE 4. OWNER'S OBLIGATIONS			38
	4.1	Access	38
	4.2	Compliance with Laws and Permits	39
	4.3	Full Notice to Proceed	39
	4.4	Owner Exclusive Obligations	39
	4.5	Owner's Representative	40
	4.6	Insurance	40
	4.7	Owner Payment Security	40
	4.8	Cooperation	41
	4.9	Extensions to Commercial Operation Deadline***	41
	4.10	Enforcement and Termination of Leases	41
	4.11	***	41
ARTICLE 5. REPRESENTATIVES; KEY PERSONNEL			41
	5.1	Owner's Representative	41
	5.2	Contractor's Key Personnel	42
	5.3	Power to Bind	42
	5.4	Notices	42
ARTICLE 6. INSPECTION			42
	6.1	Inspection	42
	6.2	***	42
ARTICLE 7. CONTRACT PRICE			42
	7.1	Contract Price	42
ARTICLE 8. PAYMENT PROCESS & PERFORMANCE SECURITY			43
	8.1	Payments	43
	8.2	Milestone Assessment	43
	8.3	Application for Payment	44
	8.4	Lien Releases	44
	8.5	Release of Liability	45
	8.6	Overdue Payments	45
	8.7	Disputed Payments	45
	8.8	Performance Security	45

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



	8.9	Payment Security	45
	8.10	Additional Withholding	45
ARTICLE 9. TAXES			46
	9.1	Taxes	46
ARTICLE 10. CHANGES AND EXTRA WORK			46
	10.1	Owner Requested Change Order	46
	10.2	Contractor Requested Change Order	47
	10.3	Mandatory Change Order	47
	10.4	Limitation on Change Orders	47
	10.5	Determining Change Order	47
	10.6	Change Order Must Be in Writing	48
ARTICLE 11. FORCE MAJEURE EVENT; EXCUSABLE EVENT; CHANGE IN LAW			48
	11.1	Certain Events	48
	11.2	Notice of Force Majeure Event and Excusable Event	48
	11.3	Force Majeure Event and Excusable Event Conditions	48
	11.4	Contractor's Remedies	49
ARTICLE 12. HAZARDOUS MATERIALS			50
	12.1	Use by Contractor	50
	12.2	Remediation by Contractor	50
	12.3	Hazardous Materials File	50
	12.4	Notice of Hazardous Materials	50
	12.5	Hazardous Materials Disposal System	51
	12.6	Scope of Contractor Environmental Indemnification	51
	12.7	Scope of Owner Environmental Indemnification	52
ARTICLE 13. TITLE AND RISK OF LOSS			52
	13.1	Equipment - Risk of Loss Before Block Substantial Completion	52
	13.2	Equipment - Risk of Loss After Block Substantial Completion	53
	13.3	Owner Caused Damage	53
	13.4	Title.	53
ARTICLE 14. INTELLECTUAL PROPERTY			54
	14.1	Drawings, Designs, and Specifications	54
	14.2	License	54
	14.3	Limitations	54
	14.4	Disclaimer	56
ARTICLE 15. START-UP, COMMISSIONING & TESTING			56
	15.1	Start-up and Commissioning	56
	15.2	Functional Test and Capacity Tests	56
	15.3	Capacity Test Notice	57

iii



	15.4	Capacity Test Acceptance	57
	15.5	Capacity Test Rejection	57
	15.6	Right to Use Temporary Equipment	57
	15.7	***	58
ARTICLE 16. BLOCK SUBSTANTIAL COMPLETION; FACILITY SUBSTANTIAL COMPLETION			58
	16.1	Generally	58
	16.2	Block Substantial Completion Defined	58
	16.3	Notice and Certificate of Block Substantial Completion	59
	16.4	Facility Substantial Completion Defined	59
	16.5	Notice and Certificate of Facility Substantial Completion	60
	16.6	Punch List	61
ARTICLE 17. STAGES OF COMPLETION; DELAY AND CAPACITY LIQUIDATED DAMAGES; EITC AND DEPRECIATION LOSS			63
	17.1	Block Delay Liquidated Damages	63
	17.2	Guaranteed Facility Substantial Completion Delay Liquidated Damages	63
	17.3	Block Capacity Liquidated Damages	63
	17.4	Netting	64
	17.5	Final Capacity Liquidated Damages	64
	17.6	Liquidated Damages Reasonable	65
	17.7	Energy and Revenues of the Project	65
	17.8	EITC and Depreciation Loss	65
	17.9	Enforceability	66
ARTICLE 18. FINAL COMPLETION			67
	18.1	Generally	67
	18.2	Certificate of Final Completion	67
	18.3	Failure to Achieve Final Completion	68
ARTICLE 19. SUSPENSION OF THE WORK			68
	19.1	Suspension for Non-Payment	68
	19.2	Contractor Suspension	68
	19.3	Extended Owner Suspension	68
	19.4	Resumption of Work After Suspension	69
	19.5	Costs and Schedule Relief for Contractor-Caused Suspension	69
ARTICLE 20. DEFAULTS AND REMEDIES			69
	20.1	Contractor Events of Default	69
	20.2	Owner Rights and Remedies	71
	20.3	Owner Event of Default	72
	20.4	Contractor Rights and Remedies	73
	20.5	Termination Payment	73
	20.6	Termination Right Not Exclusive	74
	20.7	Termination Events for Extended Force Majeure.	74

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



	20.8	***	74
	20.9	***	75
	20.10	Contractor Conduct	75
ARTICLE 21. WARRANTIES			75
	21.1	Sole Warranty	75
	21.2	No Liens or Encumbrances	75
	21.3	Defect Warranty	75
	21.4	Warranty Period	76
	21.5	Exclusions	76
	21.6	Correction of Defects	77
	21.7	Module Warranty and Performance Guaranty Agreement	79
	21.8	Limitations On Warranties	79
ARTICLE 22. PUBLICITY			80
	22.1	Signage	80
	22.2	Press Releases	80
	22.3	Contractor's Continued Access to Information and the Site.	80
ARTICLE 23. INSURANCE			81
	23.1	Contractor's Insurance	81
	23.2	Owner's Insurance	81
	23.3	Ratings	81
	23.4	Policy Requirements	81
	23.5	No Limitation and Release	81
	23.6	Reduction or Ceasing to be Maintained	81
	23.7	Expiration	82
ARTICLE 24. INDEMNITY			82
	24.1	Contractor Indemnity	82
	24.2	Owner Indemnity	84
	24.3	Patent Infringement and Other Indemnification Rights	85
	24.4	Environmental Indemnification	86
	24.5	Right to Defend	86
	24.6	Defense to Indemnification Obligations	87
	24.7	Comparative Fault	87
	24.8	Survival of Indemnity Obligations	87
ARTICLE 25. CONFIDENTIALITY			88
	25.1	Dissemination of Confidential Information	88
	25.2	DAS System Information	89
	25.3	Return of Confidential Information	89
ARTICLE 26. ASSIGNMENT			90
	26.1	Prohibition on Assignment	90
	26.2	Exceptions	90

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



	26.3	Indemnitees; Successors and Assigns	91
ARTICLE 27. NOTICES			91
	27.1	Notices	91
	27.2	Effective Time	92
ARTICLE 28. DISPUTE RESOLUTION; GOVERNING LAW			92
	28.1	Good faith negotiations	92
	28.2	Optional Arbitration	92
	28.3	Governing Law/Litigation/Choice of Forum/Waiver of Jury Trial	93
	28.4	Work to Continue	94
ARTICLE 29. LIMITATION OF LIABILITY			94
	29.1	Consequential Damages	94
	29.2	Overall Limitation of Liability	94
ARTICLE 30. SURVIVAL			95
	30.1	Survival	95
ARTICLE 31. MISCELLANEOUS			95
	31.1	Severability	95
	31.2	Third Party Beneficiaries	95
	31.3	Further Assurances	95
	31.4	No Waiver	95
	31.5	Amendments in Writing	96
	31.6	Books and Record; Retention	96
	31.7	Attorneys' Fees	96
	31.8	Inspection, Review and Approval	96
	31.9	Independent Engineer	96
	31.10	Financing Matters	97
	31.11	Set-Off	97
	31.12	Fees and Expenses	98
	31.13	Related Contracts	98
	31.14	Audit Rights	98



EXHIBITS
Exhibit 1	-	Scope of Work
Exhibit 2	-	Site Description
Exhibit 3	-	Technical Specifications
Exhibit 4A	-	Milestone Schedule
Exhibit 4B	-	Guaranteed Block On-line Schedule
Exhibit 4C	-	Module Delivery Schedule
Exhibit 5	-	Key Personnel
Exhibit 6A	-	Contractor Acquired Permits



Exhibit 6B	-	Owner Acquired Permits
Exhibit 7	-	Contractor Submittals
Exhibit 8A	-	Form of Monthly Progress Report (attached separately)
Exhibit 8B	-	Form of Weekly Progress Report
Exhibit 9	-	Payment Schedule
Exhibit 10	-	Form of Application for Payment
Exhibit 11	-	Form of Contractor Performance Security
Exhibit 12	-	Form of Equity Contribution Agreement
Exhibit 13A	-	Form of Conditional Waiver and Release on Progress Payment
Exhibit 13A-1	-	***
Exhibit 13B	-	Form of Conditional Waiver and Release on Final Payment
Exhibit 14	-	Module Warranty
Exhibit 15	-	Insurance Requirements
Exhibit 16A	-	Capacity and Availability Test
Exhibit 16B	-	Performance Guarantee
Exhibit 16C	-	Installed DC Rating Survey
Exhibit 16D	-	Facility Demonstration Test
Exhibit 17	-	Form of Capacity Test Completion Certificate
Exhibit 18	-	Disputed Change Order Methodology
Exhibit 19	-	Form of Certificate of Block Substantial Completion
Exhibit 20	-	Form of Certificate of Facility Substantial Completion
Exhibit 21	-	Form of Certificate of Final Completion
Exhibit 22	-	Form of Safety Plan
Exhibit 23	-	Form of Quality Assurance Plan
Exhibit 24	-	Qualified Major Subcontractors
Exhibit 25	-	EITC and Depreciation Exhibit
Exhibit 26	-	Limited Notice to Proceed Work
Exhibit 27	-	Functional Test
Exhibit 28	-	Performance Guaranty Agreement
Exhibit 29	-	Right of First Offer
Exhibit 30	-	Spare Parts
Exhibit 31	-	Credit Support Requirements
Exhibit 32	-	Form of Acceptable Letter of Credit
Exhibit 33	-	***

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

vii

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT

THIS ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT, dated as of December 28, 2012 (this “Agreement”), is entered into by and between SOLAR STAR CALIFORNIA XIX, LLC, a Delaware limited liability company (“Owner”), and SunPower Corporation, Systems, a corporation formed under the laws of the State of Delaware (“Contractor”). Owner and Contractor are each hereinafter sometimes referred to as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, on December 28, 2012, AVSP 1A, LLC, a Delaware limited liability company, and AVSP 1B, LLC, a Delaware limited liability company, collectively as purchasers (“Purchasers”) and Contractor and SunPower Corporation, a Delaware corporation, collectively as sellers (“Sellers”) entered into that certain Membership Interest Purchase and Sale Agreement (the “MIPA”) that set forth the terms and conditions pursuant to which Purchasers would acquire one hundred percent (100%) of the membership interests of Owner;

WHEREAS, on December 28, 2012, AVSP 2A, LLC, a Delaware limited liability company and AVSP 2B, LLC, a Delaware limited liability company, collectively as purchasers (the “AVSP 2 Purchasers”) and Sellers also entered into that certain Membership Interest Purchase and Sale Agreement that set forth the terms and conditions pursuant to which the AVSP 2 Purchasers would acquire one hundred percent (100%) of the membership interests of Solar Star California XX, LLC from Sellers;

WHEREAS, Owner intends to develop a 308.97 MW at the Delivery Point (approximately 318 MW nameplate capacity) solar photovoltaic power plant located in Xxxx and Los Angeles Counties, California (the “Facility”) described in and including all of the components set forth in Exhibit 3 (the “Technical Specifications”), on the real property more fully described in Exhibit 2 (the “Site”);

WHEREAS, Solar Star California XX, LLC intends to develop a 270.18 MW at the Delivery Point (approximately 279 MW nameplate capacity) solar photovoltaic power plant located in Xxxx County, California (the “AVSP 2 Facility”);

WHEREAS, Contractor designs, engineers, supplies, constructs and installs photovoltaic systems such as the Facility on a turn-key basis, to make available electrical energy to a transmission interconnection facility;

WHEREAS, Owner desires to engage Contractor to design, engineer, supply, construct, install, test and commission the Facility at the Site and perform all other Work under this Agreement (the “Project”) and Contractor desires to carry out such work or services, all as further defined by and in accordance with the terms and conditions set forth in this Agreement;

WHEREAS, Owner and Contractor have entered into that certain Management, Operation and Maintenance Agreement dated as of the date hereof (as the same may be modified, amended or supplemented from time to time in accordance with the terms thereof, the

“O&M Agreement”), whereby Contractor, in its role as operations and maintenance vendor (the “O&M Provider”), will provide certain operating and maintenance services for the Facility in accordance with the terms and conditions set forth therein; and

WHEREAS, Contractor and Solar Star California XX, LLC have separately entered into that certain Engineering, Procurement and Construction Agreement and that certain Management, Operation and Maintenance Agreement, each dated as of the date hereof with respect to the AVSP 2 Facility.

NOW THEREFORE, in consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE 1.

CONTRACT INTERPRETATION AND EFFECTIVENESS

1.1 Rules of interpretation. Unless the context requires otherwise: (a) unless the context clearly intends to the contrary, the singular includes the plural and vice versa, (b) terms defined in a given number, tense or form shall have the corresponding meanings when used with initial capitals in another number, tense or form, (c) unless otherwise stated, words in Exhibits 1, 3, 7, 16, 22, 23, 26 and 27 which have well known technical or construction industry meanings are used in accordance with such recognized meanings, (d) the words “include”, “includes” and “including” 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, (e) unless otherwise specified, references to “Sections”, “Schedules” and “Exhibits” are to sections, schedules and exhibits to this Agreement, (f) the words “herein”, “hereof”, “hereto”, “hereinafter” “hereunder” and other terms of like import refer to this Agreement as a whole and not to any particular section or subsection of this Agreement, (g) a reference to a Person in this Agreement or any other agreement or document shall include such Person's successors and permitted assigns, (h) references to this Agreement include a reference to all schedules and exhibits hereto, as the same may be amended, modified, supplemented or replaced from time to time, (i) without adversely impacting Contractor's remedies regarding a Change In Law, references to Applicable Law or Applicable Permit are references to the Applicable Law or Applicable Permit, as applicable, as now or at any time hereafter may be in effect, together with all amendments and supplements thereto and any Applicable Law or Applicable Permit substituted for or superseding such statute or regulation, (j) without adversely impacting the rights of either Party with respect to the amendment, restatement or replacement of any agreement under which such Party shall be liable hereunder, references to agreements, certificates, documents and other legal instruments include all subsequent amendments thereto, and changes to, and restatements or replacements of, such agreements, certificates or instruments that are duly entered into and effective against the parties thereto or their successors and permitted assigns, (k) a reference to a Governmental Authority includes an entity or officer that or who succeeds to substantially the same functions as performed by such Governmental Authority as of the date hereof, (l) “shall” and “will” mean “must” and have equal force and effect and express an obligation, (m) this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by

virtue of the authorship of any provision in this Agreement, (n) the word “or” in this Agreement is disjunctive but not necessarily exclusive, (o) references in this Agreement to time periods in terms of a certain number of Days mean calendar Days unless expressly stated herein to be Business Days, (p) headings used in this Agreement are for ease of reference only and shall not be taken into account in the interpretation or construction of the provisions of this Agreement, and (q) the words “dollar”, “dollars” or “money” and the symbol “$” each mean United States Dollars.

1.2 Defined terms. Unless otherwise stated in this Agreement, capitalized terms used in this Agreement have the following meanings:

“Abandons” means, other than in the event of a Force Majeure Event or an Excusable Event, Contractor abandons, ceases to perform the Work or leaves the Site for a period longer than four (4) continuous months.

“AAA” means the American Arbitration Association.

“Acceptable Letter of Credit” means, at any time on or after the Effective Date, an irrevocable standby letter of credit substantially in the form attached hereto as Exhibit 32, issued at such time by a Qualified Financial Institution of which Owner is the beneficiary that: (a) has a stated expiration date of not earlier than three hundred sixty-four (364) Days (or such longer term as may be commercially available) after the date of the original issuance or any renewal thereof, (b) automatically renews or permits Owner, on the signature of an authorized representative, to draw on sight all or any portion of the stated amount if not renewed (or replaced by Contractor with another Acceptable Letter of Credit) on or prior to the *** prior to the stated expiration date, (c) ***, (d) the principal office of such issuing bank, the location for the submittal of documents required for draws under such letter of credit and the location for disbursements under such letter of credit being New York, New York or such other location as may be mutually agreed in writing by Contractor and Owner, (e) is payable in Dollars in immediately available funds, (f) is governed by the International Standby Practices (ISP 98), and, to the extent not governed by the foregoing, the laws of the State of the New York and (g) is drawable upon issuance of a drawing certificate signed by an authorized representative of Owner.

“Acceptance” has the meaning set forth in Section 15.4.

“Action” has the meaning set forth in Section 14.3(e).

“Actual Tax Basis” means, with respect to a Block, the tax basis as determined in the Basis Determination as to such Block.

***

“Affiliate” means, when used with reference to a specified Person, any Person directly or indirectly Controlling, Controlled by, or under common Control with the specified Person.

“Alternative Proposal” means any proposal or offer made by any Person or group of Persons for (a) the direct or indirect acquisition in a single transaction or series of related

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

transactions of any significant portion of the Project or its assets, or (b) the direct or indirect acquisition by any Person of any of the membership interests of Owner or any other entity that owns the Project or any significant portion of its assets but expressly excluding any sale or transfer of ownership interests of Contractor or any direct or indirect parent company thereof.

“Agreement” has the meaning set forth in the preamble, including all Exhibits hereto, as the same may be modified, amended or supplemented from time to time in accordance with the terms hereof.

“Applicable Codes” means codes, standards or criteria, such as the National Electric Code and those codes, standards or criteria promulgated by the American Society of Mechanical Engineers, Underwriters Laboratories and Institute of Electrical and Electronics Engineers, and other recognized standards institutions, which are generally recognized as applicable to the Work or the Facility.

“Applicable Laws” means, with respect to any Governmental Authority, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, injunction, registration, license, permit, authorization, guideline, governmental approval, consent or requirement of such Governmental Authority, as construed from time to time by any Governmental Authority, including Environmental Laws.

“Applicable Permits” means each and every national, regional and local license, authorization, consent, ruling, exemption, variance, order, judgment, certification, filing, recording, permit or other approval with or of any Governmental Authority, including each and every environmental, construction or operating permit and any agreement, consent or approval from or with any other Person that is required by any Applicable Law or that is otherwise necessary for the performance of, in connection with or related to the Work or the design, construction or operation of the Facility, including those set forth on Exhibits 6A and 6B.

“Applicable Tax Basis” means for each Block the lesser of (a) the tax basis of such Block as reflected in Exhibit 25 and (b) the Actual Tax Basis.

“Application for Payment” means an application for payment in the form attached hereto as Exhibit 10.

“Arbitration Rules” has the meaning set forth in Section 28.2(b).

“Availability Test” means the test to determine the availability of the Block as described in Exhibit 16A.

***

“AVSP 2 Facility” has the meaning set forth in the Recitals.

“AVSP 2 Purchasers” has the meaning set forth in the Recitals.

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

***

“Basis Determination” means the actual tax basis (or as applicable the actual EITC eligible tax basis) of any Block as Owner and Contractor shall reasonably agree, or if they are unable to agree as determined by *** (so long as they are not the accounting firm used by either Party) or another independent nationally recognized accounting firm selected by Owner and reasonably acceptable to Contractor. Such accounting firm shall be provided financial and engineering records as they shall reasonably request from Owner, Contractor or their respective Affiliates, subject to customary confidentiality arrangements. Absent manifest error, the determination of such accounting firm shall be final and binding. The payment of the fees and expenses of such accounting firm shall be divided equally between Owner and Contractor.

“Block” means a delineated group of Modules and applicable connected inverters, trackers, mounting structures, interconnecting equipment and other Equipment directly supporting the operation of and energy generation output by such Modules.

“Block Actual Maximum EITCs” means for each Block the lesser of the (a) maximum amount of EITCs for which such Block could have been capable of qualifying, assuming (i) that each Block achieved Block Substantial Completion on its actual Block Substantial Completion Date and (ii) Block Substantial Completion is equivalent to Placed in Service for each applicable Block, and (b) *** of the Applicable Tax Basis of such Block.

“Block Capacity Liquidated Damages” has the meaning set forth in Section 17.3.

“Block Delay Liquidated Damages” has the meaning set forth in Section 17.1(a).

“Block Maximum EITCs” means for each Block the lesser of the (a) maximum amount of EITCs for which such Block could have been capable of qualifying, assuming (i) that each Block achieved Block Substantial Completion by its Guaranteed Block Substantial Completion Date (as in effect on the Effective Date and without giving effect to any extensions thereof under this Agreement) and (ii) Block Substantial Completion is equivalent to Placed in Service for each applicable Block, and (b) *** of the Applicable Tax Basis of such Block.

“Block Measured Capacity” means, with respect to a Block, the aggregate electrical capacity of the Modules comprising such Block, as measured pursuant to the provisions of Exhibit 16A.

“Block Substantial Completion” has the meaning set forth in Section 16.2.

“Block Substantial Completion Date” has the meaning set forth in Section 16.3.

“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.

“CAISO” means the California Independent System Operator Corporation.

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

“CAISO Tariff” means the CAISO Operating Agreement and Tariff, including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time-to-time and approved by the Federal Energy Regulatory Commission.

“Call Right” has the meaning set forth in the MIPA.

“Capacity LD Amount” means the amount of Development Security that SCE has the right to retain under the PPA associated with the reduction in capacity.

“Capacity Shortfall” has the meaning set forth in Exhibit 16A.

“Capacity Test” means, with respect to each Block, the test and commissioning of such Block as described in Exhibit 16A.

“Capacity Test Certificate” means the certificate in the form of Exhibit 17 to be issued by Contractor after completion of a Capacity Test.

“Certificate of Block Substantial Completion” means a certificate delivered by Contractor pursuant to Section 16.3 and substantially in the form attached as Exhibit 19.

“Certificate of Facility Substantial Completion” means a certificate delivered by Contractor pursuant to Section 16.5 and substantially in the form attached as Exhibit 20.

“Certificate of Final Completion” means a certificate delivered by Contractor pursuant to Section 18.2 and substantially in the form attached as Exhibit 21.

“Change in Law” means the enactment, adoption, promulgation, modification (including a written or oral change in interpretation by a Governmental Authority) or repeal of any Applicable Law or Applicable Permit after the Effective Date that has or will have an adverse effect on Contractor's costs and/or schedule for performing the Work; provided, however, that no Change in Law pursuant to this Agreement shall arise by reason of (a) any national, federal, state or provincial income Tax law (or any other Tax law based on income), (b) any federal law imposing a custom, duty, levy, impost, fee, royalty or similar charge for which Contractor is responsible hereunder with respect to the importation of Facility Equipment from outside of the United States, (c) a labor wage law or other Applicable Law that affects Contractor's or its Subcontractor's costs of employment, (d) a change of law outside of the United States of America, including any change in law that affects the cost of goods, manufacturing, shipping or other transportation of any Facility Equipment and (e) the final enactment, modification, amendment or repeal of an Applicable Law prior to the Effective Date with an effective date of such action that falls after the Effective Date.

“Change in Project Agreement” means any amendment, restatement or replacement after the Effective Date, of the following agreements: Interconnection Agreement, PPA, any agreement relating to the Real Property Rights, or any other agreement or document to which Owner is or becomes a party and under which Contractor has any obligation to comply with (directly or indirectly) hereunder; provided, however, that Contractor shall be required to comply with the amendments, restatements or replacements to the agreements or documents contemplated in the MIPA, in Section 1 or Section 2 of Exhibit 26 or in Section 3.34 without a

Change Order or other cost or schedule relief and such amendments, restatements or replacements shall not be considered Changes in Project Agreements.

“Change in Tax Law” means, after the Effective Date (a) any change in or amendment to the Code or another applicable federal income tax statute other than a reduction in an income tax rate of less than ***, (b) ***, (c) the issuance of *** final Treasury Regulations, (d) ***, (e) any change in the interpretation of the Code or Treasury Regulations by a decision, judgment, or opinion of the United States Tax Court, United States District Court that would have had jurisdication over Purchaser, United States Court of Appeals or United States Supreme Court, or (f) ***.

“Change Order” means a written document signed by Owner and Contractor or otherwise placed into effect under Article 10, authorizing an addition, deletion or revision to the Work, an adjustment of the Contract Price or Construction Schedule, and/or any other obligation of Owner or Contractor under this Agreement, which document is issued after execution of this Agreement.

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

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

“Commercial Operation Deadline” has the meaning set forth in the PPA.

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

“Construction Equipment” means all equipment, machinery, tools, consumables, temporary structures or other items as may be required for Contractor to complete the Work but which will not become a permanent part of the Facility.

“Construction Schedule” means the schedule based on and consistent with the provisions set forth in Exhibit 4A and Exhibit 4B attached hereto for the prosecution of the Work by Contractor for the Project (including the achievement of the Guaranteed Facility Substantial Completion Date and the Guaranteed Final Completion Date), created in accordance with Section 3.11 and as updated from time to time pursuant to the terms of this Agreement.

“Contract Documents” means this Agreement, the exhibits and schedules hereto, and Contractor Submittals.

“Contract Price” means the sum of ***, as the same may be modified from time to time in accordance with the terms of this Agreement.

“Contractor” has the meaning set forth in the preamble.

“Contractor Acquired Permits” means those Applicable Permits to be acquired by Contractor and designated on Exhibit 6A and any other Applicable Permits, other than Owner Acquired Permits.

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“Contractor Critical Path Items” means those items that are designated as “Contractor Critical Path Items” in the Construction Schedule.

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

“Contractor Lien” means any right of retention, mortgage, pledge, assessment, security interest, lease, advance claim, levy, claim, lien, charge or encumbrance on the Work, the Facility Equipment, the Project, the Site or any part thereof directly or indirectly created, incurred, assumed or suffered to be created by Contractor Party (other than in accordance with any other Project Transaction Document), any Subcontractor, any Supplier, or any of their respective employees, laborers or materialman.

“Contractor Party” or “Contractor Parties” means each of Contractor, SunPower Corporation, and any of their respective present and future subsidiaries and Affiliates and their respective directors, officers, employees, shareholders, agents, representatives, successors and permitted assigns.

“Contractor Performance Security” means a corporate guaranty from SunPower Corporation, in the form attached hereto as Exhibit 11.

“Contractor Submittals” means the drawings, specifications, plans, calculations, model, designs and other deliverables described in Exhibit 7.

“Contractor's Insurance” has the meaning set forth in Section 23.1, as further described in Part I of Exhibit 15.

“Contractor's Representative” means the individual designated by Contractor in such capacity set forth on Exhibit 5 in accordance with Section 5.2.

“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.

“Cumulative MW” means, as of the date of determination, the aggregate Block Measured Capacities of all the Blocks that have achieved Block Substantial Completion.

“DAS System” means the data acquisition system installed by Contractor in the Facility, as more specifically described in Exhibit 3 under “SCADA System”.

“Day” means calendar Day unless it is specified that it means a Business Day.

“Defect Warranty” has the meaning given in Section 21.3(a).

“Defect Warranty Period” has the meaning given in Section 21.4(a).

“Delay Response Plan” has the meaning set forth in Section 3.22.

“Delivery Point” means the point of interconnection at the Whirlwind Substation, identified as Q407, as set forth in the single-line diagram in Exhibit 1.

“Depreciation Benefit” means the most accelerated depreciation available under Sections 167 and 168 of the Code, assuming the utilization of the shortest available recovery period, the most accelerated depreciation method available, the half-year convention and a full first taxable year (however, in no event shall the depreciation be more accelerated than *** declining balance depreciation (without application of Section 168(k) of the Code or any successor thereto). The recovery periods applicable to each Block shall be determined using the depreciation class percentage allocations derived from costs by class divided by the total costs for each Block listed on Exhibit 25. In determining the Depreciation Benefit, a *** tax rate shall be applied. Further, in accordance with Section 50(c) of the Code tax basis for purposes of calculating depreciation shall be deemed to be reduced by *** of the Maximum EITCs.

***

“Development Security” has the meaning set forth in the PPA.

“Direct Costs” means the costs that are incurred by Contractor as a result of the event requiring the Change Order for the following items: (a) payroll wages paid for labor in the direct employ of Contractor at the Site; (b) cost of materials and permanent equipment; (c) payments made by Contractor to Subcontractors; (d) rental charges of machinery and equipment for the Work; (e) permit fees; (f) costs of mobilization and/or demobilization; (g) associated standard indirect field costs; and (h) associated engineering costs, if any, directly related to Work implemented under the Change Order.

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

“Dispute” has the meaning set forth in Section 28.1.

“Dispute Initiator” has the meaning set forth in Section 3.11(b).

“Dollar” and “$” means the lawful currency of the United States of America.

“Effective Date” has the meaning set forth in Section 1.9.

“EITC” means the tax credit for energy property described in Section 48(a)(3)(A)(i) of the Code.

“EITC Applicable Percentage” means *** with respect to any Block; provided, however, with respect to any Block if its Block Substantial Completion Date is after December 31, 2016, then with respect to such Block it shall be the *** of (a) *** and (b) the federal investment tax credit (or successor thereto) percentage for utility scale solar available under then Applicable Law for such Block.

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“EITC Timing Determinate” means the time value difference between when each Block Maximum EITC was contemplated to be reflected in Owner's estimated tax payments in accordance with the definition of Block Maximum EITC and the tax basis (by category) as reflected in Exhibit 25 and when Block Actual Maximum EITCs for each Block is deemed to be reflected in Owner's estimated tax payments. It is determined assuming Owner will pay its estimated taxes based on the annualized income installment method of Section 6655(e)(2) of the Code (using the annualization periods set forth in Sections 6655(e)(2)(A) and (B) of the Code)), and using as the interest rate the Wall Street Journal “prime rate” as of the first Business Day preceding the date of such first estimated tax installment payment.

“Eligible SunPower Competitor” means ***.

“Emergency” means an event occurring at the Site or any adjoining property that poses actual or imminent risk of serious personal injury to any Person or material physical damage to the Project requiring, in the good faith determination of Contractor, immediate preventative or remedial action.

“Environmental Laws” means any federal, state, or local law, regulation, ordinance, standard, guidance, or order pertaining to the protection of the environment and human health, including the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. 6901, et seq.; the Toxic Substances Control Act, 15 U.S.C. 2601, et seq.; the Clean Air Act, 42 U.S.C. 7401, et seq.; the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq.; the Occupational Safety and Health Act, 29 U.S.C. 651 et seq.; and any other law that governs: (a) the existence, removal, or remediation of Hazardous Materials on real property; (b) the emission, discharge, release, or control of Hazardous Materials into or in the environment; or (c) the use, generation, handling, transport, treatment, storage, disposal, or recovery of Hazardous Materials.

“Equipment” means, collectively, Construction Equipment and Facility Equipment.

“Equity Contribution Agreement” means an equity contribution agreement from MEHC, in the form attached hereto as Exhibit 12.

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

“Excluded Site Condition” means (a) the presence at the Site of Hazardous Materials or (b) any other characteristic of or condition affecting the Site (including the existence of archaeological artifacts or features) which was not disclosed in the *** with respect to the Site.

“Excusable Event” means ***.

“Expected EITCs” means for any Block the amount of EITCs available for such Block using the EITC Applicable Percentage multiplied by such Block's Applicable Tax Basis. Further, it shall be assumed that Block Substantial Completion is equivalent to Placed in Service for each Block.

“Facility” has the meaning set forth in the Recitals.

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“Facility Capacity” means, with respect to the Facility, the sum of the Final Test Results of all of the Blocks, pursuant to the provisions of Exhibit 16A.

“Facility Delay Liquidated Damages” has the meaning set forth in Section 17.2.

“Facility Demonstration Test” has the meaning set forth in Exhibit 16D.

“Facility Equipment” means all equipment, fixtures, materials, supplies, devices, machinery, tools, parts, components, instruments, appliances and other items that are required to complete the Facility that will become a permanent part of the Facility ***, whether provided by Contractor or any Subcontractor, and all special tools required to operate and maintain the Facility.

“Facility Substantial Completion” has the meaning set forth in Section 16.4.

“Facility Substantial Completion Date” has the meaning set forth in Section 16.5.

“Final Capacity Liquidated Damages” has the meaning set forth in Section 17.5(a).

“Final Completion” means satisfaction or waiver of all of the conditions for completion of the Facility as set forth in Section 18.1.

“Final Completion Date” means the actual date on which the Facility has achieved Final Completion in accordance with Section 18.2.

“Final Test Results” means with respect to a Capacity Test, the final results of such Capacity Test after accounting for the uncertainty calculation more particularly described in Exhibit 16A.

“Financing Parties” means any and all lenders, security holders, note or bond holders, lien holders, investors, equity providers, holders of indentures, security agreements, mortgages, deeds of trust, pledge agreements and providers of swap agreements, interest rate hedging agreements, letters of credit and other documents evidencing, securing or otherwise relating to the construction, interim or long-term financing or refinancing of the Project or a portfolio of projects including the Project, and their successors and permitted assigns, and any trustees or agents acting on their behalf. The term “Financing Party” includes, for the avoidance of doubt, any Person or Persons that own the Project and lease the Project to Owner or an Affiliate of Owner, as applicable, under a lease, sale leaseback or synthetic lease structure.

“Force Majeure Event” means, when used in connection with the performance of a Party's obligations under this Agreement, any act, condition or event which renders said Party unable to comply totally or partially with its obligations under this Agreement, but only if and to the extent (a) such event is not within the reasonable control, directly or indirectly, of the Party seeking to have its performance obligation(s) excused thereby, (b) the Party seeking to have its performance obligation(s) excused thereby has taken all reasonable precautions and measures in order to prevent or avoid such event or mitigate the effect thereof on its ability to perform its obligations under this Agreement and which by the exercise of due diligence such Party could not reasonably have been expected to avoid and which by the exercise of due diligence it has

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been unable to overcome and (c) such event is not the direct or indirect result of the negligence or the failure of, or caused by, the Party seeking to have its performance obligations excused thereby.

(i) Without limiting the meaning of but subject to the preceding sentence, the following events constitute Force Majeure Events to the extent that they render a Party unable to comply totally or partially with its obligations under this Agreement:

(A) ***

(B) ***

(D) ***

(E) ***

(F) ***

(G) ***

(H) ***

(ii) Notwithstanding anything to the contrary in this definition, the term Force Majeure Event shall not be based on or include any of the following:

(A) ***

(B) ***

(D) ***

(E) ***

(F) ***

(G) ***

(H) ***

(I) ***

(J) ***

(K) ***

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(L) ***

“Full Notice to Proceed” means a written notice from Owner to proceed with the Work under this Agreement.

“Full NTP Conditions” means those items set forth under Section 1 of on Exhibit 26.

“Functional Test” means the test to determine the functionality of the Project and equipment and components incorporated therein, as described in Exhibit 27.

“Governmental Authority” means any national, federal, state, regional, province, town, city, county, local or municipal government, whether domestic or foreign or other administrative, regulatory or judicial body of any of the foregoing and all agencies, authorities, departments, instrumentalities, courts and 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.

“Guaranteed Block On-line Schedule” means the schedule attached hereto as Exhibit 4B.

“Guaranteed Block Substantial Completion Date” means, with respect to each Block, the applicable block substantial completion date therefor, as set forth in Exhibit 4B.

“Guaranteed Capacity” means, with respect to a Block or the Facility, the MW values set forth in Exhibit 16B.

“Guaranteed Facility Substantial Completion Date” means, with respect to the Facility, the guaranteed facility substantial completion date as set forth in Exhibit 4B.

“Guaranteed Final Completion Date” has the meaning set forth in Section 18.1, as may be extended only in accordance with the express terms of this Agreement.

“Hazardous Materials” means (a) any regulated substance, hazardous constituent, hazardous materials, hazardous wastes, hazardous substances, toxic wastes, radioactive substance, contaminant, pollutant, toxic pollutant, pesticide, solid wastes, and toxic substances as those or similar terms are defined under any Environmental Laws; (b) any friable asbestos or friable asbestos-containing material; (c) polychlorinated biphenyls (“PCBs”), or PCB-containing materials or fluids; (d) any petroleum, petroleum hydrocarbons, petroleum products, crude oil and any fractions or derivatives thereof; and (e) any other hazardous, radioactive, toxic or noxious substance, material, pollutant, or contaminant that, whether by its nature or its use, is subject to regulation or giving rise to liability under any Environmental Laws.

“Indemnifying Party” means, with respect to an indemnification obligation under this Agreement, the Party providing such indemnification.

“Indemnitee” means an Owner Party or a Contractor Party, as the context may require, being indemnified pursuant to Section 24.5.

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“Independent Engineer” means any independent engineer or engineering firm designated under Section 31.9.

“Independent Third Party Engineer” means any of the following: ***, in each case to the extent that they are not working for Owner or Contractor with respect to the Project, or such other independent third party engineer mutually agreed upon by the Parties.

“Industry Standards” means those standards of design, engineering, construction, workmanship, care and diligence and those practices, methods and acts that would be implemented and normally practiced or followed by prudent solar engineering, construction, and installation firms in the design, engineering, procurement, installation, construction, testing and commissioning (and operation associated therewith) of utility-scale photovoltaic facilities in the western United States and otherwise performing services of a similar nature in the jurisdiction in which the Work will be performed and in accordance with which practices, methods and acts, in the exercise of prudent and responsible professional judgment by those experienced in the industry in light of the facts known (or that reasonably should have been known) at the time the decision was made, could reasonably have been expected to accomplish the desired result consistent with good business practices, good engineering design practices, safety, reliability, Applicable Codes, Applicable Laws, and Applicable Permits. Solely with respect to Section 21.5(a), “Industry Standards” shall mean those standards of care and diligence normally practiced by entities that operate and maintain photovoltaic power plants. Industry Standards is not intended to be limited to the optimum practice, method, or act, to the exclusion of all others, but rather is a spectrum of possible practices, methods or acts.

“Insolvency Event” with respect to a Person means such Person becomes insolvent, or institutes or has instituted against it a case under Title 11 of the United States Code, is unable to pay its debts as they mature or makes a general assignment for the benefit of its creditors, or if a receiver is appointed for the benefit of its creditors, or if a receiver is appointed on account of insolvency.

“Intellectual Property Claim” means an allegation, claim or legal action asserted by a third party against an Owner Party alleging unauthorized use, misappropriation, infringement, or other violation of such third party's Intellectual Property Rights arising from (a) Owner Party's use of the Licensed Technology to the extent used in accordance with the license granted pursuant to Section 14.2 or (b) Contractor's performance (or that of its Affiliates or Subcontractors) under this Agreement asserted against Owner that (i) concerns any Facility Equipment or other goods, materials, supplies, items or services provided by Contractor (or its Affiliates or Subcontractors) under this Agreement, (ii) is based upon or arises out of the performance of the Work by Contractor (or its Affiliates or Subcontractors), including the use of any tools or other implements of construction by Contractor (or its Affiliates or Subcontractors) or (iii) is based upon or arises out of the design or construction of any item by Contractor (or its Affiliates or Subcontractors) under this Agreement or the use, or operation, of any item according to directions embodied in Contractor's (or its Affiliates' or Subcontractors') Contractor Submittals, or any revision thereof, prepared or provided by Contractor.

“Intellectual Property Rights” means all intellectual property rights throughout the world, including all rights in patents and inventions (whether or not patentable); registered and

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unregistered copyrights, database rights, semiconductor mask work rights; proprietary rights trade secrets, know-how and confidential information; provided, however, that “Intellectual Property Rights” shall not include trademarks, service marks, corporate names, trade names, domain names, logos, slogans, symbols or other similar designations of source or origin, or any rights with respect thereto.

“Interconnection Agreement” means that certain Large Generator Interconnection Agreement by and between Owner, SCE and CAISO dated as of November 8, 2011, as amended, restated or modified from time to time.

“IRS” means the Internal Revenue Service.

“Key Personnel” means the Persons identified in Exhibit 5.

“L/C Amount” means the aggregate face amount of all Acceptable Letters of Credit required by Exhibit 31.

“Late Block” has the meaning set forth in Section 17.1(a).

“Licensed Technology” has the meaning set forth in Section 14.1.

“Limited Notice to Proceed” means a written notice from Owner to proceed with the Work set forth on Exhibit 26.

“LNTP Payment” means the limited notice to proceed payment set forth in the Payment Schedule.

“Losses” means ***.

***

“Major Facility Equipment Warranties” has the meaning set forth in Section 21.6(c)(i).

“Major Subcontractor” means ***.

***

“Maximum EITCs” means the sum of Block Maximum EITCs.

“MEHC” means MidAmerican Energy Holdings Company, an Iowa corporation.

“Milestone Payment” means a discrete portion of the Contract Price payable in accordance with Section 8.1(a) upon achievement of the milestone corresponding to such payment in the Payment Schedule.

“Milestone Schedule” means the schedule attached hereto as Exhibit 4A.

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“Minimum Capacity Level” means (a) with respect to a Block, *** of the Guaranteed Capacity of such Block (as adjusted for uncertainty in accordance with Exhibit 16A) and (b) with respect to the Facility, the aggregate of the Capacity Test values for all Blocks equals at least *** of the Guaranteed Capacity of the Facility, in each case, as calculated in accordance with Exhibit 16A.

“Minimum Irradiance Criteria” has the meaning set forth in Exhibit 16A.

“Minor Subcontractor” means any Person, other than a Major Subcontractor, that, directly or indirectly, and of any tier (other than Contractor but including any Affiliate of Contractor) supplies any items or performs any portion of the Work in furtherance of Contractor's obligations under this Agreement.

“MIPA” has the meaning set forth in the Recitals.

“Module Warranty” has the meaning set forth in Section 21.7.

“Modules” means solar photovoltaic modules with an expected electrical output of 435 xxxxx of electric power (expressed as DC).

“Monthly Progress Report” means a progress report prepared by Contractor setting forth the detail required in Exhibit 8A.

“MW” means 1,000,000 xxxxx of electric power (expressed as AC).

“No Shop Period” has the meaning set forth in Section 1.11(c).

“Non-Excusable Event” means (a) the negligence or willful misconduct of any Contractor Party or any Subcontractor in connection with any Project Transaction Document; (b) the failure of any Contractor Party (directly or through any Subcontractor) to comply with any of its obligations or a breach under any Project Transaction Document which failure or breach is not otherwise excused so long as such failure or breach has not otherwise been remedied, in accordance with such Project Transaction Document); and (c) ***.

“Notice of Dispute” has the meaning set forth in Section 28.1.

“NTP Date” means the date on which the Full Notice to Proceed is delivered by Owner.

“NTP Payment” means the notice to proceed payment set forth in the Payment Schedule.

“O&M Agreement” has the meaning set forth in the Recitals.

“O&M Provider” has the meaning set forth in the Recitals.

“Owner” has the meaning set forth in the preamble.

“Owner Acquired Permits” means those Applicable Permits to be acquired by Owner and designated on Exhibit 6B.

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“Owner-Caused Delay” means ***.

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

“Owner Improvement” means any modification to, improvement to or derivative work based upon the Licensed Technology, Block or Facility Equipment or any Intellectual Property Right in any of the foregoing that is created, developed, discovered or reduced to practice, directly or indirectly in whole or in part by an Owner Party.

“Owner Inspection Parties” has the meaning set forth in Section 6.1.

“Owner Party” or “Owner Parties” means Owner and its present and future subsidiaries and Affiliates and their respective directors, officers, employees, shareholders, agents, representatives, successors and permitted assigns.

“Owner Taxes” means (a) any and all Taxes imposed under Applicable Law in respect of the income or gross income of Owner, the direct or indirect owners of beneficial interests in Owner and the Affiliates of the foregoing and (b) Property Taxes imposed under Applicable Law on Owner in respect of the Site or the Facility.

“Owner's Engineer” means any engineering firm or firms or other engineer or engineers selected and designated by Owner, who may be an employee of an Owner Party but who shall not be a SunPower Competitor.

“Owner's Insurance” has the meaning set forth in Section 23.2, as further described in Part II of Exhibit 15.

“Owner's Representative” means the individual designated by Owner in accordance with Section 5.1.

“Party” and “Parties” have the meanings set forth in the preamble.

***

“Payment Schedule” means the Payment Schedule attached hereto as Exhibit 9 setting forth the Milestone Payments and the corresponding milestones required to be achieved.

“Performance Criteria” or “Performance Criterion” means the relevant performance criteria for the Facility identified in Exhibit 16B.

“Performance Guaranty Agreement” has the meaning set forth in Section 21.7.

“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.

“Person” means any individual, corporation, partnership, company, joint venture, association, trust, unincorporated organization, limited liability company or any other entity or

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organization, including any Governmental Authority. A Person shall include any officer, director, member, manager, employee or agent of such Person.

“Placed in Service” means “placed in service” for purposes of Sections 48 and 168 of the Code.

“PPA” means that certain Renewable Power Purchase and Sale Agreement, dated as of December 30, 2010, with SCE, as amended by Amendment No. 1 to the Renewable Power Purchase and Sale Agreement between the Company and SCE, dated as of February 15, 2011, as further amended, restated or modified from time to time.

“PPA Progress Report” means a written progress report prepared by Contractor and in a form substantially consistent with the requirements of the PPA, and as otherwise agreed upon by the Parties, acting reasonably.

“Project” has the meaning set forth in the Recitals.

“Project Labor Agreement” means that certain Project Labor Agreement for the Antelope Valley Solar Project among Contractor and ***.

“Project Punch List” has the meaning set forth in Section 16.6(c).

“Project Transaction Documents” means this Agreement, the Contractor Performance Security, the Module Warranty, the Performance Guaranty Agreement, the Acceptable Letters of Credit, the MIPA, the SunPower Guaranty (as defined in the O&M Agreement) and the O&M Agreement.

“Property Tax” means any real or personal property, or any ad valorem Taxes related to the Site, the Facility, the Facility Equipment, or any other property that will be incorporated into the Project.

“Proposed Project Punch List” has the meaning set forth in Section 16.6(c).

“Proposed Punch List” has the meaning set forth in Section 16.6(a).

“Punch List” has the meaning set forth in Section 16.6(a).

“Punch List Amount” means the cost or estimated cost to complete any Punch List Item as approved by the Parties in connection with the approval of the Proposed Punch List or Proposed Project Punch List in accordance with Section 16.6, as applicable.

“Punch List Estimate” means Contractor's cost estimate for completing the Punch List Items.

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

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“Punch List Items” means those finishing items with respect to a Block or the Facility, as applicable, that (a) consistent with Industry Standards does not affect the operability, reliability, safety, or mechanical, civil or electrical integrity of the Block or the Facility, (b) Owner or Contractor identifies as requiring completion or containing defects, and (c) the completion of which will not adversely effect, the performance of the Block or Facility, so long as such Block or Facility is nonetheless ready for commercial operations in a safe and continuous manner and in accordance with Applicable Law and Applicable Permits.

“Purchasers” has the meaning set forth in the Recitals.

“Qualified Financial Institution” means (a) a single bank or financial institution the long term senior unsecured debt obligations of which are rated no less than *** by S&P and *** by Xxxxx'x, or if a such single bank or financial institution is not available or will not issue a letter of credit with a stated amount equal to the amount required by Exhibit 31, then (b) two (2) banks or financial institutions the long term senior unsecured debt obligations of which each are rated no less than *** by S&P and *** by Xxxxx'x; ***.

“Quitclaim Side Letter” has the meaning set forth in Section 3.34(b).

“Real Property Rights” means, (a) those rights with respect to land to be obtained by closing on the exercised options as set forth on Exhibit 4A, as well as (b) all other rights in or to real property necessary to perform the Work and to develop, construct, complete, operate, maintain and access the Project and the Site, including those rights set forth in deeds, leases, option agreements, co-tenancy and shared facility agreements, Applicable Permits, easements, licenses, private rights-of-way agreements and crossing agreements that exist as of the Effective Date, including as set forth on Exhibit 2, or that are obtained after the Effective Date by Contractor pursuant to its obligations under Exhibit 26.

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

“Reimbursement Amount” means an amount equal to ***.

“Release” means the release, discharge, deposit, injection, dumping, spilling, leaking or placing of any Hazardous Material into the environment so that such Hazardous Material or any constituent thereof may enter the environment, or be emitted into the air or discharged into any waters, including ground waters under Applicable Law and Applicable Permits.

“Representative” has the meaning set forth in Section 1.11(c).

“Required Manuals” means the manuals, instructions and training aids, whether created by Contractor, Subcontractor or Supplier, reasonably necessary for the safe and efficient operation, maintenance and shut down of the Facility as set forth on Exhibit 7.

“Retainage” means an amount equal to *** of the amount payable pursuant to each Milestone Payment (other than the payment to be made in connection with Final Completion).

“Right of First Offer” has the meaning set forth in Exhibit 29.

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“SCE” means Southern California Edison Company, a California corporation.

“SCE Deed” has the meaning set forth in Section 3.34(a).

“SCE Interconnection Facilities” means the interconnection infrastructure which SCE is obligated to provide, as set forth in the Interconnection Agreement.

“Scheduled MWs” means, as of the date of determination, the number of MW scheduled to have been completed by the Blocks that have achieved Block Substantial Completion in accordance with Exhibit 4B.

“Scope of Work” means the scope of the work to be performed by Contractor under this Agreement, as further described in Exhibit 1.

“Sellers” has the meaning set forth in the Recitals.

“Side Letter” means that certain letter from SunPower Corporation to MEHC regarding a *** dated on or prior to Effective Date in accordance with Section 2.7(ll) of the MIPA.

“Site” has the meaning set forth in the Recitals.

“Site Condition” has the meaning set forth in Section 3.25.

“Site Substations” means the *** substations which will be constructed on the Site.

“Spare Parts” means the spare parts provided by Contractor to Owner in accordance with Exhibit 30.

“Start-up and Commissioning” means the energization and Functional Testing of the relevant Block, including verifying Block completeness as received from Contractor's construction team and readiness for operations and testing of such Block.

“Subcontractors” means Major Subcontractors and Minor Subcontractors.

“Successfully Run” means, (a) with respect to a Capacity Test, that the applicable Capacity Test was completed in accordance with the applicable procedures, conditions and requirements for the proper performance of such test as set forth in Exhibit 16A and (b) with respect to a Functional Test, that the Functional Test was completed in accordance with the provisions of Exhibit 27 and demonstrated that the Block being tested is capable of producing AC electricity.

“SunPower Competitors” means ***.

“Suppliers” means those Equipment suppliers with which Contractor or Subcontractor contracts in furtherance of Contractor's obligations under this Agreement.

“Survival Period” has the meaning set forth in Section 24.8.

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“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, excluding in all cases Permit Expenses.

“Tax Law Price Reduction” has the meaning set forth in Section 20.8(a).

“Termination Payment” means (a) with respect to (x) Owner's termination for Contractor's failure to satisfy the Full NTP Conditions on or prior to *** in accordance with Section 1.11(b) or (y) either Party's termination for failure to satisfy the condition set forth in Part B of Section 1 of Exhibit 26, an amount equal to ***; (b) with respect to a termination by Contractor for an Owner Event of Default in accordance with Section 20.5, an amount equal to ***; (c) with respect to a termination by Contractor for a Change in Law in accordance with Section 11.4(c)(i), an amount equal to the sum of (i) *** plus (ii) the Reimbursement Amount; (d) with respect to a termination by Contractor for an extended Force Majeure Event in accordance with Section 20.7, an amount equal to *** and (e) with respect to a termination by Owner for a Change in Tax Law in accordance with Section 20.8, ***.

“Technical Specifications” has the meaning set forth in the Recitals.

“Threshold” has the meaning set forth in Section 11.4(c)(ii).

“Title Company” means ***.

“Treasury Regulations” means final and temporary (assuming such are in effect at the relevant time) income tax regulations, promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations) by other final and temporary (assuming such are in effect at the relevant time) income tax regulations.

“Warranty” means, as applicable, the Defect Warranty ***.

“Warranty Period” means, as applicable, the Defect Warranty Period ***.

“Water Banking Activities” means above and below grade water banking activities permitted to be conducted by ***.

“Water Banking Design Deadline” means *** (as such date may be extended in accordance with Section 3.33(a)), unless the Parties mutually agree to extend such date.

***

“Water Supply Agreement” means Option Agreement, dated as of October 10, 2012, by Xxxxx LLC and Solar Star California XIX, LLC.

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“Weekly Progress Report” means a weekly progress report prepared by Contractor setting forth the detail required in Exhibit 8B.

“Work” means all obligations, duties, and responsibilities assigned to or undertaken by Contractor under this Agreement, as further described in Exhibit 1 and Exhibit 26, with respect to the Project, including any of the foregoing obligations performed prior to the Effective Date, which shall be deemed to be Work performed by Contractor under this Agreement, notwithstanding the fact that it was performed in whole or in part prior to the Effective Date.

1.3 Order of precedence. In the event of a conflict or inconsistency between any of the Contract Documents forming part of this Agreement, the following order of precedence shall apply: (a) any duly executed amendment or Change Order to this Agreement (and between them, the most recently executed amendment or Change Order shall take precedence); (b) this Agreement (to the extent not superseded by a subsequent amendment); (c) Exhibits 1, 16, 3, 7, 27 and 23 to this Agreement in the order indicated; (d) the Exhibits to this Agreement not otherwise specified in subclause (c) above; and (e) any other Contract Documents not previously noted.

1.4 Entire agreement. This Agreement and the Exhibits attached hereto constitute the complete and entire Agreement between the Parties with respect to the engineering, procurement, construction, testing and commissioning of the Project and supersedes any previous communications, negotiations, representations or agreements, whether oral or in writing, with respect to the subject matter addressed herein. NO PRIOR COURSE OF DEALING BETWEEN THE PARTIES SHALL FORM PART OF, OR SHALL BE USED IN THE INTERPRETATION OR CONSTRUCTION OF, THIS AGREEMENT. For the avoidance of doubt, this Agreement shall not supersede the O&M Agreement, the Module Warranty, the Performance Guaranty Agreement or any other Project Transaction Document, which shall remain in full force and effect.

1.5 No agency. The Parties are independent contractors. Nothing in this Agreement is intended, or shall be construed, to create any association, joint venture, agency relationship or partnership between the Parties or to impose any such obligation or liability upon either Party (except and solely to the extent expressly provided in this Agreement pursuant to which Owner appoints Contractor as Owner's agent). Nothing in this Agreement shall be construed to give either Party any right, power or authority to enter into any agreement or undertaking for, or act as an agent or representative of, or otherwise bind, the other Party. Neither Contractor nor any of its employees is or shall be deemed to be an employee of Owner.

1.6 Invalidity. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under Applicable Law, but, to the extent permitted by law, if for any reason any provision which is not essential to the effectuation of the basic purpose of this Agreement is determined to be invalid, illegal or unenforceable, in whole or in part, such invalidity, illegality or unenforceability shall not affect the validity or enforceability of any other provision of this Agreement or this Agreement as a whole. Any such invalid, illegal or unenforceable portion or provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain such invalid, illegal or

unenforceable portion or provision. If any such provision of this Agreement is so declared invalid, illegal or unenforceable the Parties shall promptly negotiate in good faith new provisions to eliminate such invalidity, illegality or unenforceability and to restore this Agreement as near as possible to its original intent and effect.

1.7 Binding effect. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and on their respective permitted successors, heirs and assigns.

1.8 Counterparts. This Agreement may be signed in counterparts, each of which when executed and delivered shall constitute one and the same instrument. The Parties agree that the delivery of this Agreement may be effected by means of an exchange of facsimile, .pdf or emailed signatures, which shall be deemed to be an original and shall be as effective for all purposes as delivery of a manually executed counterpart.

1.9 Effective date. The effective date (the “Effective Date”) of this Agreement is the date when this Agreement has been signed by both Parties and the “Closing” under the MIPA shall have occurred.

1.10 Time is of the Essence. To the extent that there is not a specific time period specified in this Agreement, time is of the essence with respect to a Party's performance of its obligations under this Agreement.

1.11 Notice to Proceed.

(a)Limited Notice to Proceed. On the Effective Date, Owner shall be deemed to have authorized Contractor to commence and complete the Work set forth in Exhibit 26 in Contractor's sole and absolute discretion; provided, however, that (i) until the NTP Date, Owner's sole and exclusive obligation with respect to Contractor's performance of such Work shall be the payment of the LNTP Payment and (ii) Contractor hereby waives its rights to exercise any other rights or remedies that may be available to Contractor as a result of the performance of such Work. Contractor shall promptly notify Owner following the completion of any Work set forth in Exhibit 26 as well as the satisfaction or failure to satisfy any of the Full NTP Conditions.

(b)Full Notice to Proceed. Subject to Section 20.8 or other earlier termination of this Agreement in accordance with Article 20, Owner shall submit the Full Notice to Proceed within three (3) Business Days following satisfaction by Contractor (or with respect Part B of Section 1 of Exhibit 26, agreement by Owner that the condition has been satisfied) of the Full NTP Conditions; provided that if the Full NTP Conditions have not been satisfied by *** (which date shall not be extended for any reason), then Owner has the option to either terminate this Agreement or to deliver the Full Notice to Proceed. If Owner elects to terminate this Agreement:

(i)Contractor shall pay to Owner the applicable Termination Payment within *** of Owner providing notice of the Termination Payment amount;

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(ii)Upon payment by Contractor to Owner of the applicable Termination Payment, Sellers shall have the option to exercise the Call Right in accordance with Section 2.9 of the MIPA;

(iii)if Sellers do not exercise the Call Right in accordance with Section 2.9 of the MIPA at Owner's request, Contractor shall promptly and in any event within *** return the Site to a substantially similar condition as of the date of this Agreement at Contractor's sole expense;

(iv)except with respect a termination in accordance with Section 20.9, for a period of (A) *** after the expiration of the No Shop Period or (B) if Contractor or any of its Affiliates shall have breached the obligations set forth in Section 1.11(c), a period of *** after the expiration of the No Shop Period, Purchasers shall have a Right of First Refusal (as defined in Exhibit 16 of the MIPA) with respect to the acquisition of the membership interests of Owner as set forth in Section 2.10 of the MIPA;

(v)if Contractor or any of its Affiliates breaches its obligations under 1.11(b)(iv) or 1.11(c), including with respect to Purchasers' exercise of any Right of First Refusal as set forth in Section 2.10 of the MIPA, Sellers shall pay to Purchasers an amount equal to *** within *** of such breach, which payment shall be in addition to the applicable Termination Payment, and Purchasers may also pursue injunctive relief;

(vi)other than the applicable Termination Payment, the amounts set forth in Section 1.11(b)(v) (as applicable) and Owner's or Purchasers' right to injunctive relief for Contractor's breach of its obligations under and pursuant to Section 1.11(b)(iv) or 1.11(b)(v) or the MIPA and obligations that expressly survive the termination of this Agreement in accordance with Section 30.1, including any indemnification obligations (provided that Owner cannot make any indemnity claim pursuant to Section 24.1(c)), neither Contractor nor Owner shall be liable to the other under this Agreement for, nor shall a court or arbitrator assess, any losses or damages (whether consequential or otherwise), whether arising in contract, warranty, tort (including negligence), strict liability or otherwise, or losses of use, profits, business opportunity, reputation or financing, or rights to indemnities or liquidated damages, all of which are waived by the Parties. The Parties' remedies under this Section 1.11(b) shall be each Party's sole and exclusive compensation and remedy if this Agreement is terminated in accordance with this Section 1.11(b).

(c)No Shop. During the period beginning on the Effective Date and continuing until the earlier of (i) the NTP Date and (ii) the termination of this Agreement in accordance with Section 20.9, and, if this Agreement has been terminated in accordance with Section 1.11(b) due to Contractor's failure to satisfy the conditions set forth in Part A of Section 1 of Exhibit 26, for a period of *** after the termination of this Agreement (the “No Shop Period”), Contractor agrees that neither it nor any of its Affiliates, directors, officers, employees, or other agents or representatives

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(including any investment banking, legal or accounting firm retained by any of them, and any individual member or employee thereof) (each such Person a “Representative”) shall, and that it shall direct its and their respective representatives not to, directly or indirectly, (i) solicit, initiate or knowingly facilitate or encourage any inquiry with respect to, or the making, submission or announcement of, any Alternative Proposal, (ii) participate in any negotiations or substantive discussions regarding an Alternative Proposal with, or furnish any non-public information or access to its properties, books, records or personnel to, any person that has made or, to Contractor's knowledge, is considering making an Alternative Proposal, (iii) continue, resume or engage in discussions regarding an Alternative Proposal with any person that has made or, to Contractor's knowledge, is considering making an Alternative Proposal, except to notify such person as to the existence of the provisions of this Section 1.11(c), (iv) approve, endorse, cooperate with or recommend any Alternative Proposal, (v) enter into any letter of intent or agreement in principle or any agreement or understanding, oral or written, providing for any Alternative Proposal, or (vi) otherwise cooperate with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person (other than Owner) with respect to, or which would reasonably be expected to result in, an Alternative Proposal. Contractor shall promptly inform its Representatives, and shall cause its Affiliates and other Representatives promptly to inform their respective representatives, of the obligations under this Section 1.11(c). During the No Shop Period, Contractor shall notify Owner immediately if any inquiries, proposals or offers related to an Alternative Proposal are received by, any information or data is requested from, or any negotiations or discussions related to an Alternative Proposal are sought to be initiated or continued with, Contractor or any of its Affiliates or any of their respective directors, officers, employees and Affiliates or, to Contractor's Knowledge, any other representative, and such notice shall include copies of any letters, proposals or other communications received, as well as the details of such Alternative Proposal. Notwithstanding anything herein to the contrary, this Section 1.11(c) shall not apply after the date of termination in accordance with Section 20.9.

(d)Delay. For the avoidance of doubt, any delay in the performance of the Work set forth in Exhibit 26 or the satisfaction of the Full NTP Conditions shall not be an Owner-Caused Delay or Excusable Event and Contractor shall not be entitled to any schedule or cost relief associated therewith.

(e)Survival. The obligations under Section 1.11 shall survive any termination of this Agreement.

ARTICLE 2.

REPRESENTATIONS AND WARRANTIES

2.1 Representations and Warranties of Contractor. Contractor represents and warrants to Owner that as of Effective Date and as of the NTP Date:

(a) Organization, Standing and Qualification. Contractor is a corporation,

duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has full power to execute, deliver and perform its obligations hereunder to own, lease and operate its properties and to engage in the business it presently conducts and contemplates conducting under this Agreement, and is and will be duly licensed or qualified and in good standing under the laws of the state in which the Site is located 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 licensed or qualified would have a material adverse effect on its ability to execute and deliver this Agreement or perform its obligations hereunder.

(b) Due Authorization; Enforceability. This Agreement has been duly authorized, executed and delivered by or on behalf of Contractor and is, upon execution and delivery by each of the Parties hereto, 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 by general equitable principles.

(c) No Conflict. The execution, delivery and performance by Contractor of this Agreement will not (i) violate or conflict with or cause a default under any covenant, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected, or its organizational documents, (ii) violate or conflict with any Applicable Law or (iii) subject the Facility or any component part thereof to any lien other than as contemplated or permitted by this Agreement.

(d) Government Approvals. Other than with respect to the Applicable Permits, 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. Contractor represents and warrants that all Contractor Acquired Permits either have been obtained by Contractor and are in full force and effect or Contractor has no knowledge of any reason that any Contractor Acquired Permit cannot be obtained in the ordinary course of business and within the timeframe necessary so as to permit Contractor to timely commence and prosecute the Work to completion in accordance with the terms and conditions of this Agreement.

(e) No Suits; Proceedings. There are no actions, suits, proceedings, patent or license infringements or investigations pending or, to Contractor's knowledge after due inquiry, threatened against it before any court, arbitrator or Governmental Authority that individually or in the aggregate could result in any materially adverse effect on the business, properties or assets or the condition, financial or otherwise, of Contractor or in any impairment of its ability to perform its obligations under this Agreement. 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.

(f) Business Practices. Neither Contractor nor any Subcontractor, or their respective employees, officers, representatives, or other agents of Contractor have made

or will make any payment or have given or will 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 is in compliance with the requirements set forth in Section 3.29.

(g) Licenses. All Persons who will perform any portion of the Work have or will have all business and professional certifications and licenses if and as required by the terms and conditions of this Agreement, Applicable Codes, Applicable Law and Applicable Permits to perform such portion of the Work under this Agreement and Contractor has no knowledge of any reason that any such certifications and licenses cannot be obtained in the ordinary course of business and within the timeframe necessary so as to permit such Persons to timely commence and prosecute any portion of the Work to completion in accordance with the terms and conditions of this Agreement.

(h) ***

(i) Intellectual Property. Contractor owns or has the right to use, or will be able to secure from its Affiliates or Subcontractors the right to use, all Intellectual Property Rights necessary to perform the Work without infringing on the rights of others and to enable Owner to use the Intellectual Property Rights in connection with the ownership, operation, use, maintenance, modification, altering, commissioning, de-commissioning, disposal of or removal of the Project without infringement on the rights of others. The Licensed Technology (and the use thereof to the extent used in accordance with the license granted under Section 14.2) do not and shall not infringe, or cause the infringement of, the Intellectual Property Rights of a third party. Notwithstanding the foregoing, Contractor makes no representation or warranty with respect to any Owner Improvement, except to the extent of Owner Improvements made at the direction of Contractor or in accordance with instructions or designs provided by Contractor, in which case such Owner Improvements shall be deemed to be included in the Licensed Technology for the purposes of this Section 2.1(i).

2.2 Representations and Warranties of Owner. Owner represents and warrants to Contractor that as of the Effective Date and as of the NTP Date (provided that the representation and warranty in Section 2.2(d) shall only be made as of the NTP Date):

(a) Organization, Standing and Qualification. Owner is a limited liability company, duly formed, validly existing, and in good standing under the laws of Delaware, and has the full power to execute, deliver and perform its obligations hereunder and engage in the business it presently conducts and contemplates conducting under this Agreement, and Owner is and will be duly licensed or qualified and in good standing under the laws of the state in which the Site is located 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 licensed or qualified would have a material adverse effect on its ability to perform its obligations hereunder.

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(b) Due Authorization; Enforceability. This Agreement has been duly authorized, executed and delivered by or on behalf of Owner and is, upon execution and delivery by each of the Parties hereto, 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.

(c) No Conflict. The execution, delivery and performance by Owner of this Agreement will not violate or conflict with or cause a default under any Applicable Law or any covenant, agreement or understanding to which it is a party or by which it or any of its properties or assets is bound or affected, or its organizational documents.

(d) No Suits; Proceedings. Solely with respect to the period between the Effective Date and the NTP Date, there are no actions, suits, proceedings, patent or license infringements or investigations that have commenced or, to Owner's knowledge after due inquiry, threatened during such period against it before any court, arbitrator or Governmental Authority that individually or in the aggregate could result in any materially adverse effect on the business, properties or assets or the condition, financial or otherwise, of Owner or in any impairment of Owner's ability to perform its obligations under this Agreement.

(e) Funds. Owner has or will have available all the funds necessary to pay Contractor the Contract Price, and any other amount owing to Contractor under this Agreement, at the times when such amounts become payable under this Agreement.

ARTICLE 3.

CONTRACTOR'S OBLIGATIONS

3.1 Performance of Work. Subject to payment of the Contract Price pursuant to Article 7 and Article 8, Contractor shall diligently, duly and properly perform and complete the Work in accordance with the Scope of Work and the terms of this Agreement in order to construct the Facility according to the Construction Schedule, Milestone Schedule and Guaranteed Block On-line Schedule, place it into operation in conformance with the Contract Documents and the Technical Specifications, and achieve Final Completion of the Project. Contractor acknowledges and agrees that it is obligated to perform the Work on a “turnkey basis” which constitutes a fixed-price (subject to the terms hereof) obligation to engineer, design, procure, construct, test and commission the Project in accordance with the terms and conditions of this Agreement. Where this Agreement describes a portion of the Work in general, but not in complete detail, the Parties acknowledge and agree that the Work includes any incidental work reasonably inferred or required to complete the Work in accordance with this Agreement. Except as otherwise expressly specified herein, Contractor shall provide all facilities and services required for a complete photovoltaic solar power plant facility, including all balance-of-system facilities set forth in the Scope of Work and the Technical Specifications, for the Contract Price. Information provided by Owner to Contractor prior to the Effective Date for use by Contractor in the performance of the Work shall not form the basis of any claim by Contractor for relief hereunder based on an Owner-Caused Delay or otherwise.

3.2 Scope of Work. Contractor shall perform the Scope of Work to the extent necessary (a) for the proper execution and completion of the Work under this Agreement; (b) to supervise and direct the Work in a safe manner and perform all Work in accordance with this Agreement, Applicable Law, Applicable Permits and Industry Standards; (c) to achieve Final Completion of the Facility; and (d) to place the Facility into operation in conformance with the Contract Documents and the Technical Specifications and such that the Facility is in compliance with the PPA and the Interconnection Agreement, Industry Standards, Applicable Codes, Applicable Laws and Applicable Permits. Contractor shall have sole control over the engineering, design and construction means, methods, techniques, sequences, and procedures and for coordination of all portions of the Work under this Agreement. To that end, Contractor may, in its sole discretion, accelerate the Work and cause milestones to be completed prior to the scheduled date therefor in the Construction Schedule; provided that Owner shall have no obligation to pay, any Application for Payment in amounts in excess of the maximum cumulative payment schedule set forth in Exhibit 9. Contractor will receive input from Owner and will take such input under advisement.

3.3 Properly Licensed; Sufficient Qualified Personnel. Contractor shall use, and shall require each of its Subcontractors to use, only personnel who are qualified and properly trained and who possess every license, permit, registration, certificate or other approval required by Applicable Law or Applicable Permits to enable such persons to perform work forming part of the Work.

3.4 Utilities. As part of the Work, *** shall arrange and pay for construction power and water (including all water used for dust control), and the installation of construction telecommunication lines and utilities, but only to the extent necessary for Contractor to perform its Work hereunder and pay when due all such utility usage charges. For all permanent utilities, *** shall arrange and pay prior to the Block Substantial Completion Date with respect to each applicable Block and the Facility Substantial Completion Date with respect to the Facility as a whole, and *** shall pay with respect to each Block after the applicable Block Substantial Completion Date and after the Facility Substantial Completion Date with respect to the Facility as a whole, for all permanent utilities in addition to the Contract Price, such as backfeed power, permanent water and power (i.e. for operations and maintenance facilities), permanent telecommunication lines, grid telemetry, and infrastructure necessary (including internet access) to transmit data gathered by the DAS System, until the Block Substantial Completion date with respect to each Block and the Facility Substantial Completion Date with respect to the Facility as a whole. After the applicable Block Substantial Completion Date with respect to each applicable Block and after the Facility Substantial Completion Date with respect to the Facility, *** shall arrange and pay for all utilities. With respect to such costs prior to the Facility Substantial Completion Date, the costs shall be reasonably allocated as between Owner and Contractor based on the Blocks that have achieved Block Substantial Completion Date. Contractor shall bear no responsibility for, nor bear any related damages to outages of any utilities affecting plant production after the Facility Substantial Completion Date, except to the extent caused by any Contractor Party's or Subcontractor's negligence or willful misconduct.

3.5 Contract Documents. Contractor shall deliver to Owner all Contract Documents as and when required pursuant to the terms of this Agreement.

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3.6 Record-Keeping. All drawings, plans and specifications provided as part of Contractor Submittals shall be kept by Contractor in an organized fashion for reference by Owner during the performance by Contractor of the Work. Contractor shall also maintain at the Site at least one (1) copy of all Contractor Submittals, change orders and other modifications.

3.7 Materials and Equipment. As part of the Work, Contractor shall procure all Facility Equipment and shall provide or cause to be provided, at its own expense, all Construction Equipment, machinery, tools, consumables, temporary structures or other items as may be required for Contractor to complete the Work. Contractor shall not incorporate any Facility Equipment that (a) constitutes “prototype” equipment pursuant to the risk ratings standards customarily employed by the commercial insurance industry and (b) on account of being deemed “prototype” equipment, would not be insurable under the insurance policies to be obtained by the Parties pursuant to Article 23.

3.8 Compliance and Cooperation With EITC Requirements, Applicable Laws, Applicable Permits Applicable Codes and Industry Standards. Whether or not expressly set forth in any specific section or Exhibit, Contractor shall comply with all Applicable Laws, Applicable Permits, Applicable Codes and Industry Standards in the course of performing the Work and, other than with respect to Owner's obligations under this Agreement, cause the Project to comply with all Applicable Laws and Applicable Permits prior to the Block Substantial Completion Date with respect to each Block and prior to the Facility Substantial Completion Date with respect to the Facility. Contractor shall provide to Owner such information, reports, and documents and take such other actions as may be reasonably requested by Owner to assist Owner in performing its notification and submittal responsibilities as set forth in any Applicable Permit, including as set forth in Section 3.24, and in connection with its claiming of EITCs with respect to the Project.

3.9 Contractor Acquired Permits; Other Approvals. Subject to Owner's obligation to provide reasonably requested assistance in accordance with Section 4.4(a), Contractor shall obtain and maintain in full force and effect, and file on a timely basis any documents required to obtain and maintain in full force and effect, the Contractor Acquired Permits. Contractor shall also be responsible for obtaining and maintaining in Contractor's or Owner's name in connection with the Work, as applicable, all construction permits, transportation permits, crossing rights with respect to electrical distribution lines, cable TV lines, drain tiles, rural water lines, telecommunication lines, and other licenses and, with respect to rights-of-way, those necessary to build the Project. *** Additionally, Contractor shall provide reasonably requested assistance to Owner in obtaining any Owner Acquired Permit.

3.10 Spare Parts. Contractor shall provide to Owner prior to each Block Substantial Completion Date, the proportionate share (based on aggregate Block capacity) of Spare Parts. Any additional spare parts required by Owner hereunder and not included on Exhibit 30 shall be at Owner's sole cost and expense.

3.11 Construction Schedule; Progress Reports; Meetings.

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(a) Within *** after the Effective Date, Contractor shall deliver to Owner the Construction Schedule, which shall be (i) a Xxxxx chart developed using either Primavera or Microsoft Project and (ii) consistent with Exhibit 4A and Exhibit 4B. The Construction Schedule shall contain milestones and include details to support all major engineering, procurement, construction, commissioning and testing activities of the Project. The Construction Schedule shall form the basis for progress reporting through the course of the performance of the Work. The Contractor Critical Path Items set forth in the Construction Schedule shall be subject to Owner's approval, such approval not to be unreasonably withheld or delayed; provided, that Owner's comments on the Contractor Critical Path Items must be provided to Contractor within *** of Owner's receipt of the Construction Schedule; provided, further, milestones consistent with Exhibit 4A and Exhibit 4B shall be deemed to be approved.

(b) Should the Parties disagree with respect to Owner's comments on the Critical Path Items, the Parties will submit the dispute to an Independent Third Party Engineer for expedited dispute resolution pursuant to this Section 3.11(b). The Parties shall negotiate in good faith to select an Independent Third Party Engineer. If the Parties cannot agree within *** then the Party initiating the dispute (the “Dispute Initiator”) shall send notice to the other Party including two potential independent engineers set forth in the definition of “Independent Third Party Engineer”. The other Party shall then have *** after receipt of such notice to select an Independent Third Party Engineer from such two (2) potential independent engineers identified in such notice. If the other Party does not make a selection within such *** period, the Dispute Initiator shall select an Independent Third Party Engineer from such two (2) potential independent engineers identified in such notice. The Parties shall formalize their positions regarding the dispute in writing within *** of Contractor providing notice to Owner of its disagreement with a comment provided by Owner in accordance with Section 3.11(a) and submit such positions to the Independent Third Party Engineer. The Parties and the Independent Third Party Engineer shall meet within *** of the Independent Third Party Engineer's receipt of the materials referenced in the immediately preceding sentence, at the Site, and the Independent Third Party Engineer shall issue a binding ruling that both Parties will obey within *** thereof. The Party that will pay for the Independent Third Party Engineer and all costs related thereto shall be the losing Party, as determined by the Independent Third Party Engineer.

(c) The Construction Schedule shall represent a practical plan to achieve the completion of the Work in accordance with Exhibit 4A and Exhibit 4B. The Construction Schedule will be a *** detailed schedule.

(d) The Milestone Schedule and Construction Schedule shall meet the following requirements: (i) all schedules, other than the Milestone Schedule, must be suitable for monitoring the progress of the Work, (ii) all schedules must provide necessary data about the timing for Owner decisions and all Owner milestones, and the Construction Schedule shall set forth all milestones for Contractor Deliverables required in connection with Block Substantial Completion and (iii) all schedules must be in sufficient detail to demonstrate adequate planning for and orderly completion of the Work.

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(e) Contractor shall prepare and submit to Owner (i) a PPA Progress Report, which shall be submitted to Owner no later than *** after the close of each month, (ii) through the Final Completion Date, Monthly Progress Reports (which shall include a summary of any material deviations from the prior Construction Schedule and the reasons for such deviation) on the sooner of (x) delivery of an Application for Payment and (y) *** after the end of each *** and (iii) through the Facility Substantial Completion Date, Weekly Progress Reports delivered on a weekly basis. If reasonably requested by Owner, Contractor's Project Manager (or his/her designee) shall attend scheduled meetings between representatives of Owner and SCE (in its capacity as “Buyer” under the PPA) to review such PPA Progress Reports and discuss construction progress. Each PPA Progress Report shall identify the relevant milestones under the PPA and indicate whether they have been met or are on target to be met. In addition, Owner or any Affiliate of Owner (other than a SunPower Competitor) shall be entitled to attend and participate in operations meetings convened by Contractor at least *** on the Site and other regularly scheduled meetings with respect to the progress and performance Project.

3.12 Transportation. Contractor shall provide transportation and shipping with respect to all Equipment hereunder and shall be responsible for all necessary Applicable Permits and documentation relating thereto. All transportation and shipping services, including quality assurance, shipping, loading, unloading, customs clearance (and payment of any customs duties in connection therewith), receiving, and any required storage and claims shall be included in the Contract Price.

3.13 Security. Other than the portion of the Site and the portion of the Equipment solely comprising a Block that has achieved Block Substantial Completion Date, Contractor shall be responsible for the proper security and protection of the Site and all Equipment and materials furnished by Contractor and the Work performed until Facility Substantial Completion. Contractor shall prepare and maintain accurate reports of incidents of loss, theft, or vandalism and shall furnish these reports to Owner in a timely manner.

3.14 Safety; Quality Assurance. Contractor shall take all reasonably necessary precautions for the safety of its employees, and Subcontractors and Suppliers on the relevant part of the Site where the Facility is located and to prevent accidents or injury to individuals or damage to third party property, on, about, or adjacent to the premises where the Work is being performed. Contractor shall provide to its employees, at its own expense, safety equipment required to protect against injuries during the performance of the Work and shall provide (or cause to be provided) appropriate safety training. Contractor and Owner hereby agree that the safety plan attached hereto as Exhibit 22 shall be implemented by Contractor to secure the Project during the execution of the Work. Contractor shall notify all Persons accessing the Site of the safety plan, which shall apply to all individuals accessing the Site and performing Work on the Site on behalf of Contractor or any Subcontractor. Contractor and Owner further agree that the quality assurance plan attached hereto as Exhibit 23 shall be implemented by Contractor. During the performance of the Work, Contractor shall be responsible for the oversight of all Persons at the Site, other than Owner and its Affiliates and representatives and subcontractors and the Owner Inspection Parties, and for the performance of

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the Work in accordance with the safety plan and with all Applicable Laws governing occupational health and safety, Applicable Permits and Industry Standards.

3.15 Clean-up. Contractor shall keep the part of the Site where the Facility is to be located and surrounding areas reasonably free from accumulation of debris, waste materials or rubbish caused by the Work, and as a condition of Final Completion or as soon as practicable after termination of this Agreement by Owner, all of Contractor's and Subcontractors' personnel shall have left the Site and Contractor shall remove from the part of the Site where the Facility is located and surrounding areas all debris, waste materials, rubbish, tools, Construction Equipment, machinery and surplus materials arising from or due to the Work (other than Contractor's or O&M Provider's personnel, materials and equipment required or utilized for the performance of such Person's respective obligations under this Agreement, the Module Warranty, the Performance Guaranty Agreement and/or the O&M Agreement, as applicable).

3.16 Suppliers and Subcontractors.

(a) Set forth in Exhibit 24 is a schedule of Qualified Major 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 proposed additional Major Subcontractors or replacements thereof with whom Contractor anticipates engaging. Owner shall have the right to review and approve such engagement, such approval not to be unreasonably withheld or delayed. Contractor shall update and amend Exhibit 24 by notice to Owner from time to time as necessary to reflect approved additions or changes thereto.

(b) No Subcontractor or purchase order issued by such Subcontractor shall bind or purport to bind Owner, but each purchase order, agreement or subcontract with a Supplier or a Major Subcontractor shall provide that the Supplier or Major Subcontractor, as applicable, expressly agrees, upon Owner's request if this Agreement is terminated, to the assignment of such purchase order, agreement or subcontract to Owner, at Owner's request, the Financing Parties or a successor EPC contractor to Contractor.

(c) The use by Contractor of any Subcontractor shall not (i) constitute any approval of the Work undertaken by any such Person, (ii) relieve Contractor of its duties, responsibilities, obligations or liabilities hereunder, (iii) relieve Contractor of its responsibility for the performance of any work rendered by any such Subcontractor or (iv) create any relationship between Owner, on the one hand, and any Subcontractor, on the other hand, or cause Owner to have any responsibility for the actions or payment of such Person. As between Owner and Contractor, Contractor shall be solely responsible for the acts, omissions or defaults of its Subcontractors and any other Persons for which Contractor or any such Subcontractor is responsible (with the acts, omissions and defaults of its Subcontractors being attributable to it).

(d) ***

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(e) Until the Facility Substantial Completion Date, Contractor shall furnish Owner with (i) reports received from the Subcontractors or Contractor relating to recall notices, defect notices or other similar product communications and (ii) such information with respect to the Major Subcontractors as Owner may reasonably request, in each case related to the Facility Equipment.

3.17 Insurance. Contractor shall obtain and maintain insurance required in accordance with Article 23 and Exhibit 15.

3.18 Contractor's Personnel. Contractor shall appoint Contractor's Key Personnel in accordance with Section 5.2.

3.19 Hazardous Materials. Contractor shall comply with the provisions of Article 12 with respect to Hazardous Materials as part of and in connection with the Work.

3.20 Contractor Performance Security. Contractor shall provide to Owner and maintain the Contractor Performance Security in accordance with Section 8.8 and shall provide to Owner and maintain the Acceptable Letters of Credit *** as and when required in accordance with by Exhibit 31. Contractor shall also promptly, and in any event within ***, provide Owner with notice of any of the following events *** that would give rise to a requirement of Contractor under Item 4 of Exhibit 31 to provide a *** Acceptable Letter of Credit in the aggregate for the Facility and the AVSP 2 Facility: ***.

3.21 Business Practices. Contractor shall not make any payment or give anything of value 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.

3.22 Delay Response Plan. If, at any time during the performance of the Work, the updated, detailed schedule reflecting actual progress to date included in a Monthly Progress Report delivered under Section 3.11 shows that the critical path of the Work is delayed such that Facility Substantial Completion will occur later than the Guaranteed Facility Substantial Completion Date, Contractor shall prepare and submit to Owner within *** a plan which specifies in reasonable detail the actions to be taken by Contractor and the associated schedule to explain and display how Contractor intends to recover from such delay (the “Delay Response Plan”). The corrective actions described in the Delay Response Plan that Contractor proposes to undertake with respect to the Work (a) shall be undertaken at Contractor's sole cost and expense and (b) will be designed and intended to recover the schedule for the Project as promptly as reasonably practicable. Contractor shall promptly and diligently perform the Work in accordance with the Delay Response Plan until the Work is progressing in compliance with the Construction Schedule and the critical path of the Work. Unless set forth in a Change Order executed by the Parties, the implementation of any Delay Response Plan shall not change the Guaranteed Block Substantial Completion Dates, the Guaranteed Facility Substantial Completion Date or the Guaranteed Final Completion Date.

3.23 Project Labor Agreement; Employees.

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(a) Contractor shall comply in all material respects with the terms and conditions of the Project Labor Agreement; provided, however that Contractor is solely responsible for such compliance, and the Project Labor Agreement and compliance thereunder is not an obligation of Owner and does not excuse Contractor from, or entitle Contractor to any schedule or cost relief with respect to, its performance of Work and other obligations under this Agreement.

(b) Immediately after receiving a request by Owner, subject to Contractor's obligations under the Project Labor Agreement, Contractor shall remove from the Site, and from any performance of the Work, and cause any Subcontractor to remove from the Site and from any performance of the Work, as soon as reasonably practicable, any Person performing the Work (including any Key Personnel) who is creating a risk of bodily harm or injury to themselves or others or whose actions create a risk of material property damage.

(c) Subject to Contractor's obligations under the Project Labor Agreement, Contractor shall also remove, and cause its Subcontractors and agents to remove, any employee, agent or other Person engaged in the performance of the Work for Contractor (including any Key Personnel) or such Subcontractor, as the case may be, whose off-Site conduct violates any Applicable Laws or Applicable Permits. If a Person is harming or having a negative effect on the perception of the Project or Owner's relationship with the surrounding community based on two or more documented incidents, Owner may provide notice to Contractor and Contractor and Owner will meet to discuss an appropriate response. If the Parties cannot otherwise agree, subject to Contractor's obligations under the Project Labor Agreement, Contractor shall remove and cause its Subcontractors and agents to remove such Person.

3.24 Notification. To the extent not prohibited by Applicable Law, with respect to the Project, provide Owner, promptly and in any event within *** (or such other time period set forth below) following (a) Contractor's actual knowledge of its occurrence or (b) receipt of the relevant documentation, with written:

(i)Notification of all events requiring the submission by Contractor of a report to any Governmental Authority pursuant to the Occupational Safety and Health Act;

(ii)Notifications and copies of all citations by Governmental Authorities concerning accidents or safety violations at the Site and, within *** of such written notice, a follow up report containing a description of any steps Contractor is taking and proposes to take, if any, with respect to such accident or safety violations;

(iii)Notifications and copies of all written communication to or from any Governmental Authority, relating to any breach or violation or alleged breach or violation of any Applicable Law, any Applicable Permit, Applicable Codes or any provision of the PPA or the Interconnection Agreement;

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(iv)Updates of status of communications with insurance companies related to claims with respect to an accident, incident or occurrence at the Site or in the performance of Work;

(v)Notifications and copies of any actions, suits, proceedings, patent or license infringements, or investigations pending or threatened against it at law or in equity before any court or before any Governmental Authority (whether or not covered by insurance) that (A) if determined adversely to Contractor would have a material adverse effect on Contractor's ability to perform its obligations under this Agreement or (B) relates to the Project; and

(vi)Notifications within (A)(x) *** after Contractor has actual knowledge of any accident related to the Work that has a material and adverse impact on the environment or on human health (including any accident resulting in the loss of life) and (y) within *** after Contractor has actual knowledge of any recordable, lost-time injury related to the Work and (B) *** thereafter, a report describing such accident or injury, the impact of such accident or injury and the remedial efforts required and (as and when taken) implemented with respect thereto.

3.25 Site Conditions. ***

3.26 Other Reports and Quality Control Documents. Contractor shall provide Owner with other reports and quality control documentation relating to the Work, the Blocks, Facility Equipment, the Facility and the Subcontractors as Owner may reasonably request.

3.27 Construction Methods. Contractor shall make itself available to discuss and shall promptly respond to any reasonable questions from Owner, Owner's Engineer, the Financing Parties or the Independent Engineer regarding construction methods or procedures used during construction of the Project.

3.28 Cooperation; Access. Contractor shall, and shall cause the other Contractor Parties and any Subcontractor and their respective hired personnel to, cooperate with Owner and its contractors and other hired personnel in coordinating the work of Owner's contractors and personnel who may be working at the Site with the Work being performed by any Contractor Party or Subcontractor at the Site. Contractor shall take reasonable efforts to accomplish any necessary modification, repairs or additional work with respect to a Block after the Block Substantial Completion Date of such Block or the Facility after Facility Substantial Completion with minimal interference with commercial operation of the Facility or any portion thereof and that reductions in and shut-downs of all or part of the Facility's operations will be required only when necessary, taking into consideration the length of the proposed reduction or shut-down, and Owner's obligations and liabilities under the PPA. Contractor acknowledges that Owner may schedule such reduction or shut-down at any time including off-peak hours, nights, weekends and holiday.

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3.29 Business Ethics. Contractor, its employees, agents, representatives and Subcontractors shall at all times maintain high ethical standards and avoid conflicts of interest in the conduct of Work for Owner. In conjunction with its performance of the Work, Contractor and its employees, officers, agents and representatives shall comply with, and cause its Subcontractors and their respective employees, officers, agents and representatives to comply with, all Applicable Laws, statutes, regulations and other requirements prohibiting bribery, corruption, kick-backs or similar unethical practices including, the United States Foreign Corrupt Practices Act and Owner's Code of Business Conduct (attached as Exhibit L to the O&M Agreement). Contractor shall maintain and cause to be maintained effective accounting procedures and internal controls necessary to record all expenditures in connection with this Contract and to verify Contractor's compliance with this Section 3.29. Owner shall be permitted to audit such records as reasonably necessary to confirm Contractor's compliance with this Section 3.29. Contractor shall immediately provide notice to Owner of any facts, circumstances or allegations that constitute or might constitute a breach of this Section 3.29 and shall cooperate with Owner's subsequent investigation of such matters.

3.30 Real Property Rights.

(a) Compliance with Real Property Rights. Contractor shall comply with the terms of the Real Property Rights.

(b) Access to Site. *** Contractor shall be responsible to ensure that the access to the Site is sufficient to permit cranes and other operating and rigging equipment that will be used in the performance of the Work, if any, freedom to maneuver on or about the Site.

(d) Construction Real Property Rights. *** Contractor shall notify Owner upon the occurrence, or likely occurrence, of a dispute, conflict, confrontation, or other similar problem, or potential problem, involving Real Property Rights or one or more owners or occupiers of land so situated as to potentially result in a situation that would reasonably be expected to have a material adverse effect upon the performance of the Work. Contractor shall cooperate with Owner in resolving all such problems.

(e) Crop Damages and Other Damage from Construction. Contractor shall be required to reimburse Owner for any payment Owner is required to make to any other party to the agreements setting forth the Real Property Rights arising out of or in connection with Contractor's performance of the Work, including any crop damages.

(f) ***

3.31 ***

3.32 ***

3.33 ***

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(a) ***

(b) ***

(d) ***

(e) ***

(f) ***

3.34 Quitclaim.

(a) Contractor shall arrange at its sole cost and expense for SCE to execute a quitclaim deed or similar instrument, in a form reasonably satisfactory to Owner provided that any provision that deviates from the Quitclaim Side Letter shall be satisfactory to Owner in Owner's sole discretion, that quitclaims and extinguishes that certain deed dated as of October 4, 1946 and recorded on November 16, 1946 in Book 1373, Page 395 in the Official Records of Xxxx County, California (the “SCE Deed”). Contractor shall also be responsible for the costs and expenses associated with AVWS's execution of new easement deeds or similar instruments, in forms reasonably satisfactory to Owner provided that any provision that deviates from the Quitclaim Side Letter shall be satisfactory to Owner in Owner's sole discretion, to convey to SCE perpetual easements for electrical line and related purposes on and over the portions of the AVSP property located in *** described in Exhibit B to the agreement set forth as item 4i of Part 1-A of Schedule 3.1(l) of the MIPA.

(b) ***

ARTICLE 4.

OWNER'S OBLIGATIONS

4.1 Access. From the Effective Date until the Facility Substantial Completion Date, Owner shall provide Contractor with access to the Site (which access, with respect to the land to be obtained by closing of the exercised options as set forth on Exhibit 4A, shall be no earlier than the later to occur of (a) the applicable closing dates for closing on the exercised options as set forth on Exhibit 4A and (b) the termination date of any third-party possessory interests in the Site as set forth in those certain executed written agreements and estoppel certificates delivered pursuant to Section 2.7(x) of the MIPA and entered into prior to the Effective Date, as such dates are indicated in Exhibit 4A) as suitable and necessary for Contractor to complete the Work and perform its obligations in accordance with this Agreement; provided, however, that Contractor shall not interfere with the operation of a Block by Owner or the O&M Provider after the Block Substantial Completion Date of such Block. From the Facility Substantial Completion Date until the Final Completion Date, Owner shall provide

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Contractor with reasonable access to the Site as suitable and necessary for Contractor to complete the Punch List Items. Owner shall also provide Contractor with reasonable access to the Site after the Final Completion Date for purposes of inspection and photography (consistent with Section 22.3), and access to the DAS System (consistent with Section 25.2). Owner shall provide reasonable access to the Site for Contractor to complete work in connection with the Warranties. Notwithstanding the foregoing, any failure by or inability of Owner to provide Contractor access due to Contractor's failure to comply with the Real Property Rights or otherwise with the terms of this Agreement shall not be considered a breach by Owner. ***

4.2 Compliance with Laws and Permits. Owner shall at all times fully comply with Applicable Laws and Applicable Permits. Subject to Contractor's obligations to provide reasonably requested assistance to Owner in obtaining any Owner Acquired Permit (at no out of pocket cost to Owner) in accordance with Section 3.9, Owner shall obtain and maintain in full force and effect all Owner Acquired Permits.

4.3 Full Notice to Proceed. Owner will issue the Full Notice to Proceed subject to and in accordance with Section 1.11.

4.4 Owner Exclusive Obligations. The following items are expressly excluded from Contractor's Scope of Work and are the exclusive responsibility of Owner:

(a) Subject to Section 3.30 and Contractor's obligation to provide reasonably requested assistance to Owner in obtaining any Owner Acquired Permit (at no out of pocket cost to Owner) in accordance with Section 3.9, Owner shall obtain every Owner Acquired Permit and, at Contractor's written request, Owner shall cooperate with and provide reasonably requested assistance to Contractor as necessary to assist Contractor in (i) obtaining the Contractor Acquired Permits, (ii) in connection with Contractor's interactions with Los Angeles and Xxxx Counties and any other applicable Governmental Authorities with respect to the Applicable Permits, (iii) in connection with interactions with SCE and CAISO with respect to the Interconnection Agreement for Contractor to perform the Work; (iv) with respect to enforcing Owner's rights under and with respect to any Real Property Rights, and (v) with respect to enforcing Owner's rights under and with respect to the Water Supply Agreement, and will take such actions as may be reasonably requested by Contractor in connection therewith; provided that Contractor shall reimburse Owner for any reasonable out-of-pocket costs that Owner incurs in providing such assistance;

(b) Subject to Section 7.1, Article 8 and Article 10, Owner shall pay all out-of-pocket Taxes, fees, levies and other costs associated with obtaining the Owner Acquired Permits, including for on-Site inspections by any Governmental Authority in connection therewith;

(c) Owner shall pay in a timely manner as required by Applicable Law 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;

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(d) Owner shall maintain any solar easements or other protections and restrictions on areas near and adjacent to the Site to protect the unobstructed passage of sunlight to all areas of the Site in accordance with their terms to the extent that such are in effect as of the Effective Date;

(e) Owner shall select and employ its own personnel for purposes of attending any tests, meetings, training, or orientation required or anticipated by this Agreement;

(f) Owner shall secure and pay for the operation and maintenance of the Facility and shall not require and Contractor shall not be obligated to perform any such services under this Agreement;

(g) Subject to Section 12.2 and Part B.2 of Exhibit 1, Owner shall be responsible for any environmental remediation of the Site which may be required by any Governmental Authority, Applicable Law or Applicable Permit as a condition to the construction or operation of the Facility on the Site; provided that Owner is not responsible if environmental remediation is required because of actions or inactions taken by Contractor Party or any Subcontractors;

(h) Owner shall complete, or cause to be completed, the SCE Interconnection Facilities, including all functional testing for the same by the date set forth on the Milestone Schedule***;

(i) Owner shall perform Owner's obligations set forth in Sections L, M or N of Exhibit 1; and

(j) Owner shall solely be responsible for employing operating and maintenance personnel who will commence to perform operation and maintenance work with respect to each Block immediately after such Block has achieved Block Substantial Completion; provided, however, Contractor agrees that for so long as O&M Provider is providing the operation and maintenance work, this obligation shall be deemed satisfied.

In connection with Owner's obligations under this Agreement, Owner shall be entitled to hire any third party quality consultants to advise Owner concerning the quality control and performance of the Facility; provided that such consultants shall not interfere with Contractor's performance of the Work and shall not be SunPower Competitors.

4.5 Owner's Representative. Owner shall appoint an Owner's Representative in accordance with Section 5.1.

4.6 Insurance. Owner shall obtain and maintain insurance required in accordance with Article 23 and Exhibit 15.

4.7 Owner Payment Security. Owner shall provide to Contractor and maintain the Equity Contribution Agreement in accordance with Section 8.9.

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4.8 Cooperation. Owner shall, and shall cause its contractors and their respective hired personnel to, cooperate with Contractor and Subcontractors in coordinating the work of Owner's contractors and personnel who are working at or near the Site with the Work being performed by any Contractor Party or Subcontractor at or near the Site. Subject to Owner's rights hereunder, Owner shall not allow its, or its Affiliates' or any other separate consultants', contractors', or other hired personnel's, operations and activities on the Site to interfere with the performance of the Work by Contractor.

4.9 Extensions to Commercial Operation Deadline***.

(a) Following receipt of notice from Contractor that is reasonably detailed to allow Owner to seek, and delivered sufficiently in advance of any deadlines for seeking, extensions of the Commercial Operation Deadline under the PPA with respect to Force Majeure Events (as defined under the PPA), Owner, as seller under the PPA, shall diligently prosecute any and all material extensions of the Commercial Operation Deadline under the PPA with respect to Force Majeure Events (as defined under the PPA) to the extent permitted thereunder; provided, however, that, for the avoidance of doubt, Owner shall not be required to exercise its right under Section 3.06(c) of the PPA except in accordance with the immediately succeeding sentence. ***

(b) ***

4.10 Enforcement and Termination of Leases. Owner shall enforce all material terms of any lease or other agreement set forth on Exhibit 2 that is in effect on the Effective Date, or that later becomes effective, by which any Person other than Owner has a right to use, occupy or possess any portion of the Site, including enforcing the expiration of any such lease or other agreement and using commercially reasonable efforts to cause the lessee or occupant to vacate the leased premises immediately following such expiration, which shall include instituting an eviction action if required to cause any holdover lessee or occupant to vacate the leased premises. If such lease or other agreement is terminable by Owner upon notice to the lessee or occupant, Owner shall deliver notice of termination of such lease or other agreement promptly after written request from Contractor, and shall thereafter enforce the expiration of such lease or other agreement pursuant to the provisions of this Section 4.10. ***

4.11 ***

ARTICLE 5.

REPRESENTATIVES; KEY PERSONNEL

5.1 Owner's Representative. Owner designates, and Contractor agrees to accept, *** as Owner's Representative for all matters relating to this Agreement and Contractor's performance of the Work (except as otherwise stated in this Agreement). The acts and omissions of Owner's Representative with respect to this Agreement are deemed to be the acts and omissions of Owner and shall be fully binding upon Owner. Owner may, upon written notice to Contractor pursuant to Article 27, change the designated Owner's Representative.

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5.2 Contractor's Key Personnel. Contractor designates, and Owner accepts, those individuals set forth on Exhibit 5 for all matters relating to Contractor's performance under this Agreement. Contractor's Representative shall have full responsibility for the prosecution and scheduling of the Work and any issues relating to this Agreement. If Contractor elects to replace Key Personnel, it shall do so promptly. Owner shall have the right to approve any such replacement Key Personnel, provided, however, that such approval shall not be unreasonably withheld or delayed. The actions taken by Contractor's Representative are deemed to be the acts of Contractor.

5.3 Power to Bind. The Parties shall vest their Representatives with sufficient powers to enable them to assume the obligations and exercise the rights of each Party, as applicable, under this Agreement.

5.4 Notices. Notwithstanding Sections 5.1, 5.2, and 5.3, all amendments to this Agreement, Change Orders, notices and other communications between Contractor and Owner contemplated herein shall be delivered in writing and otherwise in accordance with Article 27.

ARTICLE 6.

INSPECTION

6.1 Inspection. Owner, its Affiliates, its representatives (including Owner's Engineer), any Financing Party, its representatives (including any Independent Engineer), SCE (in its capacity as “Buyer” under the PPA) and CAISO (in its capacity as party to the Interconnection Agreement), in each case, except to the extent that any such party is a SunPower Competitor (other than an Eligible SunPower Competitor) (collectively, “Owner Inspection Parties”), shall have the right to reasonably observe and inspect any item of Facility Equipment at the Site, including to witness functional tests of the Facility Equipment and the Functional Tests for each Block, and the material, design, engineering, service, workmanship or any other portion of the Work at the Site; provided that (a) such observations and inspections shall be arranged at reasonable times and with reasonable advance notice to Contractor and (b) Owner has granted such Person access to the Site and Work for such purpose. Notwithstanding the foregoing, any personnel of such Owner Inspection Parties that have completed Contractor's safety training and worker environmental training may observe and inspect the Work at the Site, including to witness functional tests of the Facility Equipment and the Functional Tests for each Block, at any time subject to compliance with the safety plan attached hereto as Exhibit 22.

6.2 ***

ARTICLE 7.

CONTRACT PRICE

7.1 Contract Price. As full compensation for the Work and all of Contractor's obligations hereunder, Owner shall pay to Contractor, and Contractor agrees to accept as full compensation for the Work, the Contract Price. The Contract Price shall be

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adjusted only as expressly provided under the terms of this Agreement ***. The Contract Price shall be paid by Owner to Contractor in accordance with the terms of Article 8.

ARTICLE 8.

PAYMENT PROCESS & PERFORMANCE SECURITY

8.1 Payments.

(a) Owner shall (i) on the Effective Date, pay the LNTP Payment (less the Retainage), (ii) on the later of (A) the NTP Date and (B) ***, pay (x) the NTP Payment (less the Retainage) and (y) the undisputed amounts (less the Retainage) under any Applications for Payment delivered to Owner *** or more prior to the NTP Date, (iii) on the date that the undisputed amounts (less the Retainage) set forth in the first Application for Payment submitted to Owner following the NTP Date are due to be paid, pay the undisputed amounts (less the Retainage) under any Applications for Payment delivered within *** of the NTP Date and (iv) pay the remaining Contract Price as Milestone Payments less the Retainage, in accordance with the Payment Schedule to the extent that Contractor has achieved the milestone corresponding to such payment as set forth on the Payment Schedule. Each Milestone Payment shall be due and payable only to the extent it is supported by the completion of the applicable milestone set forth in the Payment Schedule for the payment of such Milestone Payment. Subject to and in accordance with any mutually agreed upon Change Order, in no circumstance shall Owner have an obligation to pay any Application for Payment in amounts in excess of the maximum cumulative payment schedule set forth in Exhibit 9.

(b) Within *** after the acceptance of the Certificate of Facility Substantial Completion, Owner shall release to Contractor the Retainage applicable to all amounts invoiced less an amount equal to the Punch List Holdback of the Punch List Amount for all Punch List Items that have not been completed at such time pursuant to the terms hereof. On the Final Completion Date, concurrent with the payment for the Final Completion, Owner shall release to Contractor all remaining Retainage (including any Punch List Holdbacks) then held by Owner. Any interest accruing on the Retainage shall accrue for the account of Owner and not Contractor,

(c) If Contractor fails to perform (i) any Block Punch List Item within *** after the Block Substantial Completion Date for such Block completed and transferred to Owner upon the Block Substantial Completion Date of such Block or (ii) any Punch List Item on the Project Punch List within *** after the Facility Substantial Completion Date, Owner may elect by written notice to Contractor to retain the Punch List Holdback applicable to such Punch List Item and complete such Punch List Item itself. Upon Owner making such election, Contractor's obligation to perform such Punch List Item shall be deemed satisfied.

8.2 Milestone Assessment. Contractor and Owner shall periodically, and in any event at least once each month, review the Work completed and assess

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the progress of on-Site Work completed and completion of the relevant milestone. Owner's Engineer and any Independent Engineer may be present during such review and assessment of the Work.

8.3 Application for Payment. Contractor shall deliver the Application for Payment to Owner by the *** of each month for the milestones completed and progress in the Work for the prior month (including Punch List Items), including during the period prior to the NTP Date; provided, that the Application for Payment in respect of Block Substantial Completion and Facility Substantial Completion shall be delivered when required under Section 16.3 and Section 16.5, respectively. Each Application for Payment shall be reasonably detailed and shall be accompanied by reasonable supporting documentation evidencing the achievement of the milestone pursuant to the schedule of values set forth in Exhibit 9 for which the Milestone Payment is being requested, shall be accompanied by lien waivers required to be delivered otherwise pursuant to Section 8.4 and shall be sent by facsimile with confirmation of receipt, and Owner shall be deemed to have received such Application for Payment and the documentation supporting achievement of the relevant milestone on the same date of delivery by Contractor if delivered prior to 5:00 pm Pacific Standard Time; provided, that if such date of delivery is not a Business Day or is delivered after 5:00 pm Pacific Standard Time, then the date of delivery shall be the immediately following Business Day. Owner shall make all payments of undisputed amounts when they become due, but in any event, no later than thirty (30) Days after delivery of the Application for Payment; provided that the payments in respect of any Application for Payment delivered prior to the NTP Date shall be made in accordance with Section 8.1(a) and with respect to Block Substantial Completion and Facility Substantial Completion shall be due within *** after Owner's acceptance of the Certificate of Block Substantial Completion or Certificate of Facility Substantial Completion, as applicable. If Owner disputes a portion of an Application for Payment, Owner shall notify Contractor of such Dispute promptly and in any event within *** after receipt of such Application for Payment and shall pay to Contractor the undisputed portion in accordance with this Section 8.3. If such dispute is resolved within *** after delivery of the Application for Payment, Owner shall make payment of such resolved amounts within *** after delivery of the Application for Payment. Contractor shall be responsible for paying or ensuring the payment of all Subcontractors in connection with the Work completed by the Subcontractors in accordance with the terms of such subcontracts.

8.4 Lien Releases. Contractor shall submit with each Application for Payment a conditional partial lien release in the form set forth in Exhibit 13A for the amount requested in the current Application for Payment*** in respect of work performed or materials delivered on the Site during the period covered by such Application for Payment. Both Contractor and its Major Subcontractors shall provide Owner a conditional final lien release in the form set forth in Exhibit 13B as a condition precedent to payment by Owner of the final Application for Payment. In addition to the lien releases described in this Section 8.4, Contractor shall deliver to the Title Company, as and when required by the Title Company in order to issue title insurance to any Financing Party and to provide an endorsement thereto with respect to mechanic's liens pending disbursement coverage, (a) Contractor's sworn statement and (b) a mechanic's lien subordination agreement, each executed by Contractor and in form and substance acceptable to the Title Company.

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8.5 Release of Liability. ***

8.6 Overdue Payments. Overdue payment obligations of either Party hereunder shall bear interest from the date due until the date paid at a rate per annum equal to the lesser of (a) the rate published by the Wall Street Journal as the “prime rate” on the Business Day preceding the date on which such interest begins to accrue plus *** and (b) the maximum rate allowed under Applicable Law.

8.7 Disputed Payments. Failure by Owner to pay any invoiced amount disputed in good faith and until such dispute has been resolved in accordance with Article 28 shall not alleviate, diminish, modify or excuse the performance of Contractor or relieve Contractor's obligations to perform hereunder, subject to the provisions of such Article 28. Contractor's acceptance of any 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 expeditiously and in any case in accordance with the provisions of Article 28. 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 an Application for Payment 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 interest rate set forth in Section 8.6, from the date on which the interest on such payment was originally due under Section 8.3 until the date such payment is actually received by Contractor. If amounts disputed in good faith that have been paid by Owner are later resolved in favor of Owner, Contractor shall refund any such payment and pay interest on such payment at the interest rate set forth in Section 8.6, from the date on which the payment was originally made by Owner until such refunded payment is received by Owner. If amounts disputed in good faith by Owner are later resolved in favor of Contractor, Owner shall make such disputed payment and pay interest on such disputed payment at the interest rate set forth in Section 8.6, from the date on which the payment was due until such payment is received by Contractor.

8.8 Performance Security. Contractor shall maintain the Contractor Performance Security in full force and effect in accordance with the terms thereof.

8.9 Payment Security. On the Effective Date, Owner shall deliver to Contractor the Equity Contribution Agreement. The Equity Contribution Agreement shall remain in full force and effect in accordance with its terms.

8.10 Additional Withholding. If Contractor fails to obtain and maintain the credit support requirements set forth in Exhibit 31 as and when required pursuant to the terms thereof, Owner shall be entitled to withhold amounts otherwise payable hereunder in an aggregate amount not to exceed (a) the face amount of any Acceptable Letters of Credit required by Exhibit 31 until such Acceptable Letters of Credit are posted by Contractor and/or (b) ***. Owner shall pay any such amounts withheld pursuant to this Section 8.10 within *** of (a) Owner's receipt of such Acceptable Letter of Credit or (b) ***.

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ARTICLE 9.

TAXES

9.1 Taxes. The Contract Price includes any and all Taxes imposed under Applicable Law on Contractor, the Subcontractors, the Work, the construction or sale of Facility Equipment to Owner or installation of the Project, except for Owner Taxes. In addition to the Contract Price, Owner assumes exclusive liability for and shall pay before delinquency all Owner Taxes. Contractor and Owner agree to cooperate with each other to minimize the Tax liability of both Parties to the extent legally permissible and commercially reasonable for such Party. Contractor shall provide Owner with such assistance as may be reasonably requested by Owner in demonstrating eligibility for exemptions or exclusions from such Taxes (and any other Tax exemptions) to the relevant Governmental Authority; provided that Owner shall reimburse Contractor for any out-of-pocket costs that Contractor incurs in providing such assistance. Contractor shall, in accordance with Applicable Law, timely administer and timely pay all Taxes that are included in the Contract Price and timely furnish to the appropriate taxing authorities all required information and reports in connection with such Taxes and furnish copies of such information and reports (other than information specifically pertaining to Contractor's income and profit) to Owner as reasonably requested by Owner and within *** after any request from Owner, Contractor shall provide Owner with any other information regarding allocation of quantities, descriptions, and costs of property provided by Contractor and installed as part of the Project that is necessary in connection with the preparation of Owner's tax returns or as a result of an audit by a taxing authority. This clause will survive the expiration or termination of this Agreement.

ARTICLE 10.

CHANGES AND EXTRA WORK

10.1 Owner Requested Change Order.

(a) Owner agrees that it will not request or direct changes in the Work or the Facility which (i) reduces Contractor's Scope of Work or (ii) materially alters the Technical Specifications, in each case, without Contractor's prior written consent, such consent not to be unreasonably withheld or delayed.

(b) Subject to Section 10.1(a), without invalidating this Agreement, Owner may request changes in the Work or the Facility that are reasonably consistent with the Scope of the Work under this Agreement and are technically feasible. Owner shall request such changes in the Work or Facility by delivering a written Change Order request to Contractor. As soon as practicable after receipt of a Change Order request, Contractor shall prepare and forward to Owner in writing: (i) a quotation for the price for the extra or changed Work and change to the Payment Schedule (if applicable); (ii) an estimate of any required adjustment to the Construction Schedule; (iii) any adjustment to Performance Criteria; and (iv) an estimate of any impact of the proposed change on any Applicable Permit, warranty and any other term or condition of this Agreement. The Parties shall negotiate in good faith to determine the adjustment to the

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Contract Price for Change Orders contemplated by this Section 10.1(b). If the Parties do not agree on the adjustment to the Contract Price in respect of this Section 10.1(b), then the adjustment to the Contract Price may be determined in accordance with Exhibit 18 but only if the Parties so agree. If the Parties do not agree either (i) to a fixed price Change Order, or (ii) that an adjustment to the Contract Price shall be determined in accordance with Exhibit 18, then Owner may nonetheless direct Contractor to proceed with the Work that is the subject of the Change Order, and Contractor shall be paid its Direct Costs as reasonably incurred in performing the Change Order plus a markup of ***. Contractor shall submit Applications for Payment no more frequently than monthly with respect to Contractor's Direct Costs in accordance with the preceding sentence and Owner shall be obligated to pay such undisputed amounts within *** after Owner's receipt of Contractor's Application for Payment.

10.2 Contractor Requested Change Order. Contractor may propose a Change Order to Owner if the proposed changes improve the Facility or are otherwise advisable for the Work. Any such proposed Change Order shall not affect the obligation of Contractor to perform the Work and to deliver the Facility in accordance with this Agreement unless and until Owner executes a Change Order pursuant to Section 10.6. If the Parties do not agree on the adjustment to the Contract Price in respect of this Section 10.2, then the adjustment to the Contract Price may be determined in accordance with Exhibit 18 but only if the Parties so agree. If the Parties do not agree either (a) to a fixed price Change Order or (b) that an adjustment to the Contract Price shall be determined in accordance with Exhibit 18, then no Change Order shall be executed. If Contractor proceeds with a proposed change in the Work pursuant to this Section 10.2 without receiving the consent of Owner, Contractor shall be responsible for the removal of any such work if a Change Order request is not subsequently approved by Owner; provided, however, that in the event of any Emergency affecting the safety of persons or property, Contractor shall act, at its discretion, to prevent threatened damage, injury or loss.

10.3 Mandatory Change Order. Contractor shall be entitled to an adjustment in the Contract Price as set forth in this Agreement and an adjustment in the Construction Schedule (including to any Guaranteed Block Substantial Completion Date, Guaranteed Facility Substantial Completion Date or Guaranteed Final Completion Date) as set forth below upon the occurrence of any of the following events: ***.

10.4 Limitation on Change Orders. Changes Orders shall be limited to changes requested by Owner in accordance with Section 10.1, changes requested by Contractor and mutually agreed to by the Parties in accordance with Section 10.2 and in connection with mandatory Change Orders in accordance with Section 10.3. ***

10.5 Determining Change Order. Any adjustment of the Construction Schedule pursuant to a Change Order shall be determined in accordance with Section 10.3. Any adjustment of the Contract Price shall include all costs to Contractor associated with the performance of the extra Work or changes or a reduction of the Contract Price based on savings to Contractor associated with the changes, as applicable. Adjustments in Contract Price shall be determined in accordance with Sections 10.1, 10.2, and 10.3, as applicable, as well as Article 11.

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10.6 Change Order Must Be in Writing. Except as otherwise provided in Section 10.3, no change or extra Work shall be valid and effective unless it is in writing in the form of a Change Order signed by the representatives of both Parties that includes a description of the amount of any adjustment of the Contract Price and any adjustment to the Construction Schedule, Payment Schedule or Performance Criteria due to the change.

ARTICLE 11.

FORCE MAJEURE EVENT; EXCUSABLE EVENT; CHANGE IN LAW

11.1 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 against a Party, or be deemed to be a breach or an Event of 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; provided that the Party claiming relief complies with the provisions of Article 11. Notwithstanding anything to the contrary in the foregoing, the obligation to pay money in a timely manner in accordance with the terms hereof shall not be subject to the Force Majeure Event or Excusable Event provisions hereof.

11.2 Notice of Force Majeure Event and Excusable Event. If a Party's ability to perform its obligations under this Agreement is affected by a Force Majeure Event or an Excusable Event (in the case of Contractor), the Party claiming relief shall endeavor to provide notice within *** of when the Force Majeure Event or Excusable Event first prevents or delays performance under this Agreement with oral notice to Contractor's Representative or Owner's Representative, as applicable, of any delay or anticipated delay in the claiming Party's performance of this Agreement due to such Force Majeure Event or Excusable Event, including a description of the event including reasonable details (to the extent available and known to the claiming Party, at such time) regarding the underlying facts and conditions pursuant to which such Party is claiming a Force Majeure or Excusable Event and the anticipated length of the delay. After such oral notice, the claiming Party shall deliver written notice as soon as practicable, but in any event not later than *** after the claiming Party becomes aware of the delay or anticipated delay describing in detail the particulars of the occurrence giving rise to the claim, including what date the Party claiming relief 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, and any action being taken to avoid or minimize its effect (the “Delay Notice”). The Party claiming relief due to a Force Majeure Event shall have a continuing obligation to deliver to the other Party regular updated reports and any additional documentation and analysis supporting its claim regarding a Force Majeure Event or an Excusable Event promptly after such information becomes available to such Party.

11.3 Force Majeure Event and Excusable Event Conditions. Upon the occurrence of a Force Majeure Event or an Excusable Event, the suspension of, or impact on, performance due to such Force Majeure Event or Excusable Event shall be of no greater scope and no longer duration than is required by such event (taking into account the obligations affected thereby). In addition, the claiming Party shall exercise reasonable efforts to (a) minimize and mitigate the effects of any delay caused by, and costs arising from said Force Majeure Event or Excusable Event (b) to continue to perform its obligations hereunder not

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affected by such event and (c) to correct or cure the effect of such event. When the Party claiming relief due to such Force Majeure Event or Excusable event is able to resume performance of its affected obligations, such Party shall provide prompt notice to the other Party to that effect and promptly resume performance of all of its obligations under this Agreement.

11.4 Contractor's Remedies.

(a) Force Majeure Event. As Contractor's remedy for the occurrence of a Force Majeure Event, and provided that Contractor has otherwise materially complied with the applicable obligations it may have under Section 11.2 and Section 11.3, if a Force Majeure Event occurs, any extension to the Construction Schedule shall be to the extent set forth in and in accordance with Section 10.3.

(b) Excusable Event. As Contractor's remedy for the occurrence of an Excusable Event, and provided that Contractor has otherwise materially complied with the applicable provisions of Section 11.2 and Section 11.3, if an Excusable Event occurs, any extension to the Construction Schedule shall be to the extent set forth in and in accordance with Section 10.3. If Contractor's costs increase despite Contractor's reasonable efforts to mitigate any such increases pursuant to Section 11.3, the Contract Price shall be increased by the sum of (i) the actual and reasonably substantiated Direct Costs incurred by Contractor as a direct result of such Excusable Event plus (ii) *** of the amount calculated in subclause (i).

(i) Upon the occurrence of a Change in Law after the Effective Date and prior to the NTP Date which, individually or in the aggregate, has or is reasonably expected to have a material adverse effect on Contractor's ability to perform its obligations under this Agreement or a material increase in Contractor's expected costs for performing hereunder, Contractor may propose a Change Order to Owner for cost and/or schedule relief in connection with Contractor's compliance with such Change in Law. *** The obligations of this Section 11.4(c)(i) shall survive any termination of this Agreement.

(ii) As Contractor's remedy for the occurrence of a Change in Law after the NTP Date, and provided that Contractor has otherwise materially complied with the applicable provisions of Section 11.2 and Section 11.3, ***.

(d) Changes in Project Agreement. As Contractor's remedy for the occurrence of a Change in Project Agreement, and provided that Contractor has otherwise materially complied with the applicable provisions of Section 11.2 and Section 11.3, any extension to the Construction Schedule shall be to the extent set forth in and in accordance with Section 10.3. If Contractor's costs increase despite Contractor's reasonable efforts to mitigate any such increases pursuant to Section 11.3, the Contract Price shall be increased by the sum of (i) the actual and reasonably substantiated Direct Costs incurred by Contractor as a direct result of such Change in Project Agreement plus (ii) *** of the amount calculated in subclause (i).

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(e) Changes Orders. Upon the occurrence of an event that entitles Contractor to relief under this Section 11.4, and subject to Contractor's compliance with the applicable provisions of this Article 11 and Article 10 in all material respects, Contractor and Owner shall prepare a Change Order in accordance with Article 10.

(f) ***

ARTICLE 12.

HAZARDOUS MATERIALS

12.1 Use by Contractor. Contractor shall minimize and manage the use of Hazardous Materials in the performance of its obligations under this Agreement and shall not and shall not permit any of the Subcontractors, directly or indirectly, to cause any Release in, on or under the Project, the Site or the adjacent area except to the extent required for the performance of the Work, in such case, in accordance with Applicable Laws and Applicable Permits (including the performance of investigatory, monitoring, or other remedial work upon the Project, the Site or adjacent areas to the extent reasonably necessary to comply with Applicable Laws and Applicable Permits).

12.2 Remediation by Contractor. Contractor shall conduct and complete all investigations, studies, sampling, testing and remediation of the Site as required by Applicable Laws and Applicable Permits in connection with any Release, disposal or the presence of Hazardous Materials, where existing prior to the Effective Date or brought onto or generated at the Site by any Contractor Party or Subcontractor or to the extent any such Release is caused by the negligent acts or omissions of any Contractor Party or Subcontractor, except to the extent such Release is caused by Owner, its Affiliates, or any third party (other than any Contractor Party or Subcontractor) after the Effective Date. Contractor shall promptly comply with all lawful orders and directives of all Governmental Authorities regarding Applicable Laws and Applicable Permits relating to the use, transportation, storage, handling or presence of Hazardous Materials, or any Release, by any Contractor Party, Subcontractor or any Person acting on its or their behalf or under its or their control of any such Hazardous Materials brought onto or generated at the Site by any Contractor Party or Subcontractor, except to the extent any such orders or directives are being contested in good faith by appropriate proceedings in connection with the Work.

12.3 Hazardous Materials File. During the performance of the Work, Contractor shall maintain an updated file of all material safety data sheets for all Hazardous Materials used in connection with the Work hereunder, or used by or on behalf of any Contractor Party or Subcontractor at the Site and shall promptly deliver any updates to such file which are issued to Owner.

12.4 Notice of Hazardous Materials. If Contractor discovers, encounters or is notified of any Release or exposure to Hazardous Materials at the Site:

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(a) Contractor shall promptly notify Owner thereof and stop work in and restrict access to the area containing such Hazardous Materials as required by Applicable Law or Applicable Permits;

(b) if any Contractor Party or Subcontractor has brought such Hazardous Materials onto the Site or generated such Hazardous Materials, Contractor shall, as promptly as reasonably practicable, remove such Hazardous Materials from the Site and remediate the Site to the extent required by all Applicable Laws and Applicable Permits in each case at Contractor's sole cost and expense, except where such materials were Released by Owner, its Affiliates, or any third party other than any Contractor Party or Subcontractor (but only after the Effective Date); and

(c) if any Contractor Party or any Subcontractor has brought such Hazardous Materials onto the Site or generated such Hazardous Materials, Contractor shall not be entitled to any extension of time or additional compensation hereunder for any delay or costs incurred by Contractor as a result of the existence of such Hazardous Materials, except where such materials were Released by Owner, its Affiliates, or any third party other than any Contractor Party or Subcontractor (but only after the Effective Date).

12.5 Hazardous Materials Disposal System. Contractor shall arrange and contract with contractors (who are appropriately licensed and insured) for the transportation from the Site, management or disposal in accordance with Applicable Law and Applicable Permits, of Hazardous Materials generated by or produced in connection with Contractor's performance of the Work. To the extent required by Applicable Law or Applicable Permits, Contractor shall (a) prepare and maintain accurate and complete documentation of all Hazardous Materials used by Contractor or Contractor Parties at the Site in connection with the Project, and of the disposal of any such materials, including transportation documentation and the identity of all Subcontractors providing Hazardous Materials disposal services to Contractor at the Site and (b) prepare and deliver all required notifications and reports to Governmental Authorities in connection with the presence of Hazardous Materials at the Site that were brought onto the Site or generated by any Contractor Party or Subcontractor. Contractor shall comply with Owner's reasonable requirements and procedures with respect to the disposal of such Hazardous Materials.

12.6 Scope of Contractor Environmental Indemnification. Contractor hereby specifically agrees to indemnify, defend and hold Owner and the Owner Parties harmless from and against any and all losses, liabilities, claims (including relating to personal injury or bodily injury or death), demands, damages, causes of action, fines, penalties, costs and expenses (including all reasonable consulting, engineering, attorneys' or other professional fees), whether or not involving damage to the Project or the Site that they may incur or suffer by reason of:

(a) any use of or introduction of Hazardous Materials to the Site by any Contractor Party or Subcontractor in connection with the performance of the Work, which use includes the storage, transportation, processing or disposal of such

Hazardous Materials by Contractor or any of its Subcontractors, whether lawful or unlawful;

(b) any Release in connection with the performance of the Work by Contractor or any of its Subcontractors (except as provided in Section 12.7);

(c) any administrative, enforcement or compliance proceeding commenced by or in the name of any Governmental Authority because of an alleged, threatened or actual violation of any Environmental Law by any Contractor Party or any Subcontractor;

(d) any action reasonably necessary to xxxxx or remediate Hazardous Materials described in paragraph (a) above, or prevent a violation or threatened violation of any Environmental Law by any Contractor Party or Subcontractor; and

(e) any action required by Contractor to mitigate a situation created by the violation of any Applicable Law or Applicable Permit by any Contractor Party or Subcontractor.

12.7 Scope of Owner Environmental Indemnification. Owner hereby specifically agrees to indemnify, defend and hold Contractor and Contractor Parties harmless from and against any and all losses, liabilities, claims (including relating to personal injury or bodily injury or death), demands, damages, causes of action, fines, penalties, costs and expenses (including, all reasonable consulting, engineering, attorneys' or other professional fees), whether or not involving damage to the Project or the Site that they may incur or suffer by reason of:

(a) any Hazardous Materials present or used, brought upon, transported, stored, kept, discharged, or spilled by Owner or any Owner Party in, on, under or from the Site after the Effective Date including any Release by Owner or its Affiliates, in accordance with the terms of this Agreement and all Applicable Laws;

(b) any administrative, enforcement or compliance proceeding commenced by or in the name of any Governmental Authority because of an alleged, threatened or actual violation of any Environmental Law by Owner; and

(c) any action reasonably necessary to xxxxx or remediate Hazardous Materials described in paragraphs (a) or (b) above, or to prevent a violation or threatened violation of any Environmental Law by Owner.

ARTICLE 13.

TITLE AND RISK OF LOSS

13.1 Equipment - Risk of Loss Before Block Substantial Completion. From the Effective Date and until the Block Substantial Completion Date of each Block, subject to the provisions of this Article 13, Contractor has care, custody and control of all Facility Equipment and other items that become part of a Block and

shall exercise due care with respect thereto and assumes the risk of loss and full responsibility for the cost of replacing or repairing any damage to the relevant Block and all materials, Equipment, supplies and maintenance equipment (including temporary materials, equipment and supplies) that are purchased for permanent installation in or for use during construction of such Block.

13.2 Equipment - Risk of Loss After Block Substantial Completion. Owner shall take complete possession and control and shall assume and shall bear the risk of loss and full responsibility in respect of a Block completed and transferred to Owner upon the Block Substantial Completion Date of such Block after the Block Substantial Completion Date of such Block or the earlier termination of this Agreement, unless the loss or damage to such Block is (a) caused by any Contractor Party, Subcontractor or other Person over whom Contractor has control or (b) a defect covered by the Warranties provided by Contractor under this Agreement. Upon Owner's written request, if any component of the Block is lost or damaged for whatever reason after the Block Substantial Completion Date, then, upon Owner's written request, Contractor shall restore or rebuild any such loss or damage and complete the Work in accordance with this Agreement at the sole cost and expense of Owner, unless such loss or damage is (i) caused by any Contractor Party or Subcontractor or other Person over whom Contractor has control or (ii) a defect covered by the Warranties provided by Contractor under this Agreement, in which case Contractor shall restore or rebuild any such loss or damage at its cost.

13.3 Owner Caused Damage. Notwithstanding any other provision of this Agreement but subject to Owner's rights to coverage under the Builder's Risk Insurance in accordance with Exhibit 15, Owner shall bear the risk of loss and full responsibility for the cost of replacing or repairing any damage to the Facility and all materials, Equipment, supplies and maintenance equipment (including temporary materials, equipment and supplies) that are purchased by Contractor or Owner for permanent installation in or for use during construction of the Facility to the extent that such damage is caused by the negligence or willful misconduct of Owner, its agents, employees, representatives, consultants or other contractors.

13.4 Title.

(a) To the extent Owner's payments to Contractor are made in accordance with this Agreement, Contractor warrants good title, free and clear of all Contractor Liens, to all Work, Facility Equipment and other items furnished by Contractor or any of the Subcontractors that become part of the Project.

(b) Title to the Facility, and to any discrete and identifiable item or series of Facility Equipment, shall pass to Owner upon the earliest to occur of (i) ***, (ii) receipt by Contractor of payment (less any Retainage) in full therefor, (iii) Facility Substantial Completion, (iv) ***, and (v) with respect to any applicable Facility Equipment, ***.

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ARTICLE 14.

INTELLECTUAL PROPERTY

14.1 Drawings, Designs, and Specifications. Drawings, designs, specifications and Confidential Information contained within, accompanying or arising from the Work, including those in electronic form, in each case prepared by Contractor (or its Affiliates or Subcontractors) and delivered to Owner (the “Licensed Technology”) shall be considered instruments of service and are for use by Owner, its contractors, agents and employees solely with respect to the Project in accordance with the license granted under Section 14.2. As between the Parties, Contractor (or its Affiliates or Subcontractors) shall be deemed the authors and owners of the Licensed Technology and, subject to Section 14.2, shall retain all common law, statutory and other reserved rights, including copyrights in the Licensed Technology.

14.2 License. All Intellectual Property Rights contained within, accompanying or arising from the Licensed Technology are and shall be solely owned by Contractor and are not being sold to Owner, but rather are being licensed in accordance with the terms and conditions of this Agreement. Effective upon the passage of title to any Block or Equipment, as applicable, to Owner, Contractor hereby grants to Owner a fully paid-up, perpetual, irrevocable, non-exclusive, royalty-free right and license to use (a) the Licensed Technology to the extent reasonably necessary (i) to complete or enable the use of the Work, all Contract Documents and all such items and materials provided by Contractor and (ii) in connection with the design, construction, ownership, use, operation, maintenance, repair, modification, alternation, commissioning, de-commissioning, disposal or removal of the Facility or any subsystem or component thereof in connection with the Project, including the right to reproduce, prepare derivative works based on and distribute such Work, Contract Documents and such drawings, designs, specifications, and other works of authorship provided by Contractor (or its Affiliates or Subcontractors) and (b) the Owner Improvements in connection with the design, construction, ownership, use, operation, maintenance, repair, modification, alternation, commissioning, de-commissioning, disposal or removal of any other facility owned or leased by Owner or its Affiliates. The license granted under this Section 14.2 is subject to the requirements and limitations set forth in Section 14.3 but does allow Owner to provide the Licensed Technology to its contractors in connection with use in relation to the Project. Except as set forth in this Section 14.2, no other license in the Licensed Technology is granted pursuant to this Agreement. To the extent that exercise of the foregoing license rights requires use or disclosure of Contractor's Confidential Information, such use or disclosure shall be subject to the terms and conditions set forth in Article 25.

14.3 Limitations.

(a) No Copies. Except as otherwise permitted by this Agreement, and except for Contractor Submittals and all other construction documents, commissioning and test reports and results delivered to Owner for Owner review during construction, commissioning and testing of the Facility, Owner shall not make any copies of the Licensed Technology without first obtaining express written permission from Contractor, except that Owner may make copies of the Licensed Technology in order to share the Licensed Technology or portions thereof with an Owner Party, its contractors

or any Financing Party to the extent the Owner Party, contractor or Financing Party needs to know such information with respect to the Project. Such Owner Party, contractor or Financing Party, as applicable, shall be informed of the confidential nature of the Licensed Technology and be bound by confidentiality obligations of a like nature to those contained in this Agreement. Any party receiving Licensed Technology shall be responsible for any breach of this Agreement by any of its representatives or Affiliates.

(b) Proprietary Notices. Owner shall not remove or alter, or knowingly permit to be removed or altered, any proprietary notices that appear on or with the Licensed Technology.

(c) No Reverse Engineering, Etc. Except as otherwise permitted by this Agreement, Owner shall not display, distribute, decompile, reverse engineer, decrypt, extract or disassemble any software or firmware in any Blocks, Equipment or Modules to source code form.

(d) Improvements.

(i) If any Owner Party, directly or indirectly, alone or jointly with others, creates, develops, discovers, invents or reduces to practice any Owner Improvement, such Owner Party shall promptly disclose the same to Contractor.

(ii) Owner, on behalf of itself and all Owner Parties agrees to assign, and Owner hereby does assign, to Contractor, its successors and assigns, effective automatically as and when Owner Improvements are created, developed, discovered, invented or reduced to practice, each and every Owner Improvement, together with the right to seek protection by obtaining patent rights therefor and to claim all rights or priority thereunder, and the same shall become and remain Contractor property whether or not such protection is sought. Owner shall (and shall cause Owner Parties to), upon Contractor's request and at Contractor's expense, give Contractor and its attorneys all reasonable assistance in connection with the preparation and prosecution of any patent applications and shall cause to be executed all assignments or other instruments or documents as reasonably necessary or appropriate to perfect the ownership of Contractor in the Owner Improvements.

(iii) If and only if, and to the extent, Applicable Law mandates that Owner own, or if Owner does in fact own, any Owner Improvements, notwithstanding the terms of this Agreement, Owner hereby grants to Contractor and its Affiliates an exclusive, perpetual, worldwide, royalty-free license to use and sublicense others to use such Owner Improvements.

(e) Enforcement. Each Party shall notify the other Party promptly in writing of any suspected infringement by a third party of the Licensed Technology or any of the Intellectual Property Rights therein or any other Intellectual Property Rights related to the Work, the Blocks or the Facility Equipment. Contractor shall have the exclusive

right to enforce and defend the rights appurtenant to the Licensed Technology or such other Intellectual Property Rights in Contractor's sole discretion and shall have the sole right of control of any such enforcement action or proceeding it elects to initiate (an “Action”), at Contractor's sole cost and expense (provided, however that Contractor shall not consent to the entry of any judgment or enter into any settlement of any such Action in the event such judgment or settlement imposes any liability, restriction or obligation on Owner without Owner's prior written consent, which shall not be unreasonably withheld, conditioned or delayed). Owner shall provide on Contractor's written request all reasonable assistance in preparing and advancing such Action and Contractor shall reimburse Owner's reasonable out-of-pocket costs incurred in doing so. Owner shall have the right to be represented in connection with such Action by its own legal counsel, at its own expense; provided, however, that such legal counsel shall act only in an advisory capacity. Contractor may retain any monetary damages or other compensation or recovery awarded to it in any such Action.

(f) Assignment. The grant of rights and licenses to Owner in Section 14.2 and this Section 14.3(f) shall be assignable to other Persons solely pursuant to all terms and conditions controlling such assignment in Article 26.

(g) Reservation of Rights. Notwithstanding anything to the contrary in this Agreement, neither Party shall be prohibited from utilizing any general knowledge, skills, experience, ideas or concepts retained in the unaided memory of an individual acquired during the term of this Agreement.

14.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 2.1(i), THE LICENSED TECHNOLOGY IS PROVIDED AND LICENSED HEREUNDER “AS IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY CONTRACTOR.

ARTICLE 15.

START-UP, COMMISSIONING & TESTING

15.1 Start-up and Commissioning. Contractor shall conduct the Start-up and Commissioning of each Block in accordance with the Start-up and Commissioning requirements set forth in Exhibits 3 and 27.

15.2 Functional Test and Capacity Tests. Contractor shall conduct Functional Tests for each Block in accordance with Exhibit 27 and when Contractor believes that a Block can satisfy the Minimum Capacity Level, Contractor shall conduct the Capacity Test with respect to each Block in accordance with Exhibit 16A. Contractor must submit a test report for each Functional Test and Capacity Test within *** after the completion thereof, which test report shall include a summary of the Functional Test or Capacity Test, as the case may be, and the results for such test. Owner and Contractor will negotiate in good faith to agree upon testing procedures that comply with the protocols set forth in Exhibit 27.

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15.3 Capacity Test Notice. Contractor shall provide Owner with at least *** prior written notice of the commencement of each such test, in order to permit Owner's Representative to arrange attendance at such Capacity Test. Contractor shall give Owner Representative at least *** advance notice of the re-performance of any Capacity Test. Owner's Representative, and any Owner Inspection Party (excluding SunPower Competitors) notified to Contractor by Owner in writing prior to the date of the test shall be entitled to attend and observe each Capacity Test and each re-performance thereof.

15.4 Capacity Test Acceptance. Contractor shall, as soon as practicable following the completion of a Capacity Test in which the Final Test Results reveal that the Minimum Capacity Level for such Block has been achieved, submit to Owner's Representative a Capacity Test Certificate, signed by Contractor's Representative and attaching the Final Test Results performed pursuant to Exhibit 16A. Subject to this Section 15.4, Owner shall, within *** after Owner's receipt of a Capacity Test Certificate from Contractor, either: (a) approve the Capacity Test results by countersigning and delivering to Contractor the fully executed Capacity Test Certificate (which shall be deemed effective on the date the Capacity Test Certificate was delivered); or (b) give Contractor written notice stating that Owner rejects the Capacity Test results and describing the non-conformity on which the rejection is based. A Capacity Test Certificate signed by Owner is deemed conclusive evidence that such Block has met the Minimum Capacity Level required under this Agreement (“Acceptance”). Acceptance of the Capacity Test for a Block shall not affect any rights Owner may have under a Warranty for a Block, any Facility Equipment or the Facility pursuant to Article 21. If Owner fails to respond within such *** period, then Acceptance for such Block shall be deemed to have occurred as of the date that the Capacity Test Certificate was delivered to Owner and Owner shall execute and deliver the relevant Capacity Test Certificate.

15.5 Capacity Test Rejection. If the Final Test Results reveal that the relevant Block fails to meet the Minimum Capacity Level for such Block, Contractor shall repeat the respective Capacity Test as many times as necessary until the Minimum Capacity Level has been met. Contractor shall take all corrective actions so that such Block successfully completes the Capacity Test and meets the Minimum Capacity Level, without prejudice to Owner's rights and remedies under this Agreement. If the Final Test Results reveal that the relevant Block has satisfied the Minimum Capacity Level but not the Guaranteed Capacity (as adjusted for uncertainty in accordance with Exhibit 16A), Contractor may elect to perform additional Work (if it deems necessary) and repeat the Capacity Test. Any such additional Work shall be performed in compliance with the requirements of this Agreement, including that such Work is in compliance with the PPA. Prior to commencing any such additional Work, Contractor shall provide to Owner a detailed plan and schedule to perform such additional Work and shall not commence any such additional Work without Owner's consent, not to be unreasonably withheld. There shall not be a limit to the number of times the Capacity Test may be repeated pursuant to the previous sentence ***.

15.6 Right to Use Temporary Equipment. If any Block or the Facility experiences a single point failure (i.e., a main transformer failure) prior to or during a Capacity Test, Contractor may use temporary equipment which must remain in place until a permanent replacement can be installed; provided that such temporary equipment is approved by Owner (such approval not to be unreasonably withheld and in any event within *** of such

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request for approval) and complies with all Applicable Laws, Applicable Permits, Project Transaction Documents, Governmental Authorities and the PPA and such temporary equipment is not expected to have any adverse effect on the safe and reliable construction of the Block or Project. All costs to install and remove the temporary equipment shall be to Contractor's account.

15.7 ***

(a) ***

(b) ***

ARTICLE 16.

BLOCK SUBSTANTIAL COMPLETION; FACILITY SUBSTANTIAL COMPLETION

16.1 Generally. Subject to Article 17, Contractor shall perform the Work in accordance with the Construction Schedule, as may be amended from time to time in accordance with the terms of this Agreement, so as to achieve Block Substantial Completion for each Block by the Guaranteed Block Substantial Completion Dates, Facility Substantial Completion by the Guaranteed Facility Substantial Completion Date and Final Completion by the Guaranteed Final Completion Date.

16.2 Block Substantial Completion Defined. Subject to Section 16.3, “Block Substantial Completion” shall, with respect to a Block, occur when all of the following conditions have been achieved:

(a) the design, engineering, procurement and construction of such Block has been completed in accordance with this Agreement except for Punch List Items and the Block has been commissioned and a Functional Test has been Successfully Run in respect of such Block and such Block is ready to commence commercial operation;

(b) the Block is electrically interconnected to and has been synchronized with, and is capable of transmitting electric energy to, the Delivery Point in accordance with the Interconnection Agreement and the PPA and all testing and obligations under the PPA required as a condition to such delivery of energy under the PPA, including testing required by CAISO for delivery of electricity from such Block has been satisfactorily completed;

(c) a Capacity Test pursuant to Exhibit 16A has been Successfully Run in respect of such Block and Contractor has provided to Owner, and Owner has accepted, a Capacity Test Certificate evidencing that the Minimum Capacity Level for such Block has been achieved;

(d) the Block is capable of continuous operation in a safe manner (with respect to damage to any portion or component of the Project or injury to any Person)

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in accordance with Applicable Law, Applicable Permits, Applicable Codes, the PPA, the Interconnection Agreement, manufacturers' recommendations, Industry Standards, the Technical Specifications and the design criteria;

(e) Owner has received all Contractor Submittals (if any) as required to be delivered by the Block Substantial Completion Date for such Block;

(f) Contractor and Owner have agreed to the Punch List Items for such Block and Contractor has completed all Work on such Block other than the remaining Punch List Items; and

(g) Contractor has delivered the notice of Block Substantial Completion of such Block to Owner pursuant to Section 16.3.

16.3 Notice and Certificate of Block Substantial Completion. When Contractor considers that a Block has achieved Block Substantial Completion in accordance with Section 16.2, Contractor shall deliver to Owner a Certificate of Block Substantial Completion signed by Contractor, together with reasonable supporting documentation evidencing the satisfaction of the provisions in Section 16.2 and the corresponding Application for Payment. Contractor shall provide Owner with a Punch List Estimate at such time. Upon receipt of a Certificate of Block Substantial Completion from Contractor together with supporting documentation, Owner shall promptly take steps to confirm whether Block Substantial Completion has been achieved and as soon as practicable, but in no event later than *** from the date of receipt of Contractor's notice, Owner shall either issue Contractor: (a) a countersignature to the Certificate of Block Substantial Completion, signed by Owner's Representative and stating that the relevant Block Substantial Completion Date is the date on which Contractor delivered the Certificate of Block Substantial Completion under this Section 16.3 or (b) a written notice stating why Owner does not consider that Block Substantial Completion for such Block has been achieved. The “Block Substantial Completion Date” for such Block shall be the Day on which the last of the conditions of Section 16.2 was satisfied or, in the discretion of Owner, waived; provided, however, except in the event Owner rejects a Certificate of Block Substantial Completion and any dispute arising from such rejection is resolved in favor of Contractor or Owner does not respond and the Block Substantial Completion is deemed to have occurred, with respect to the transfer of risk of loss, care, custody and control for purposes of Article 13, such date shall be the date of Owner's countersignature to the Certificate of Block Substantial Completion or the date of deemed acceptance, as applicable. If Owner fails to respond within such *** period, then Block Substantial Completion for such Block shall be deemed to have occurred as of the date that the Certificate of Substantial Completion was delivered to Owner. If Contractor receives a notice under subparagraph (b) above, Contractor shall take the necessary steps to achieve Block Substantial Completion for such Block and the procedures set forth under this Section 16.3 shall be repeated until such time as the Certificate of Block Substantial Completion for such Block has been accepted by Owner. Any disputes regarding the existence or correction of any alleged deficiencies shall be resolved under Article 28.

16.4 Facility Substantial Completion Defined. Subject to Section 16.5, “Facility Substantial Completion” means (excepting the completion of Punch List Items):

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(a) each Block has achieved Block Substantial Completion and the Project as a whole is capable of continuous operation in a safe manner (with respect to damage to any portion or component of the Project or injury to any Person) in accordance with Applicable Law, Applicable Permits, Applicable Codes, the PPA, the Interconnection Agreement, manufacturers' recommendations, Industry Standards, the Technical Specifications and the design criteria;

(b) installation of minimum of *** MW of inverters as determined by aggregating the nameplate of inverters;

(c) the Facility is operational and can demonstrate that it evacuates power at the Delivery Point pursuant to the Facility Demonstration Test performed in accordance with Exhibit 16D);

(d) the most recent Functional Test has been Successfully Run in respect of the Facility and the Facility is ready to commence commercial operation;

(e) the Guaranteed Capacity for the Facility has been achieved, or if not, the Facility Capacity is greater than the Minimum Capacity Level of the Facility and Contractor has paid the applicable Final Capacity Liquidated Damages;

(f) each of the requirements to achieve “Commercial Operation” under the PPA shall have been satisfied, except those requirements that are Owner's obligations set forth in Sections L, M or N of Exhibit 1;

(g) Contractor and Owner have agreed upon the list of Punch List Items;

(h) Owner has received all Contractor Submittals as required to be delivered by the Facility Substantial Completion Date in accordance with Exhibit 7;

(i) all construction and post-construction submittals required by the Contractor Acquired Permits for the Project have been submitted to the appropriate Governmental Authorities;

(j) all Certificates of Block Substantial Completion have been received by and approved or deemed approved by Owner;

(k) ***

(l) the Facility has successfully completed the Installed DC Rating Survey in accordance with Exhibit 16C; and

(m) Contractor has delivered the notice of Facility Substantial Completion to Owner pursuant to Section 16.5.

16.5 Notice and Certificate of Facility Substantial Completion. When Contractor considers that Facility Substantial Completion has been achieved in accordance with Section 16.4, Contractor shall deliver to Owner a Certificate of Facility Substantial

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Completion signed by Contractor, together with reasonable supporting documentation evidencing the satisfaction of the provisions in Section 16.4 and the corresponding Application for Payment. Contractor shall provide Owner with a Punch List Estimate at such time. Upon receipt of a Certificate of Facility Substantial Completion from Contractor together with supporting documentation, Owner shall promptly take steps to confirm whether Facility Substantial Completion has been achieved and as soon as practicable, but in no event later than *** from the date of receipt of Contractor's notice, Owner shall either issue Contractor: (a) a countersignature to the Certificate of Facility Substantial Completion, signed by Owner's Representative and stating that the Facility Substantial Completion Date is the date on which Contractor delivered the Certificate of Facility Substantial Completion to Owner under this Section 16.5; or (b) a written notice stating why Owner does not consider that Facility Substantial Completion has been achieved. The “Facility Substantial Completion Date” for the Facility shall be the Day after the date on which the last of the conditions of Section 16.4 was satisfied or, in the discretion of Owner, waived; provided, however, except in the event Owner rejects a Certificate of Facility Substantial Completion and any dispute arising from such rejection is resolved in favor of Contractor or Owner does not respond and the Facility Substantial Completion Date is deemed to have occurred, with respect to the transfer of risk of loss, care, custody and control for purposes of Article 13, such date shall be the date of Owner's countersignature to the Certificate of Facility Substantial Completion or the date of deemed acceptance, as applicable. If Owner fails to respond within such *** period, then such delay shall constitute an Owner-Caused Delay. If Contractor receives a notice under subparagraph (b) above, Contractor shall take the necessary steps to achieve Facility Substantial Completion and the procedures set forth under this Section 16.5 shall be repeated until such time as the Certificate of Facility Substantial Completion has been accepted by Owner. Any disputes regarding the existence or correction of any alleged deficiencies shall be resolved under Article 28.

16.6 Punch List.

(a) Creation of Punch Lists. Owner and Contractor shall agree upon the relevant Punch List Items to be completed by Contractor. Contractor and Owner shall jointly walk-down the Block and confer together as to the items which should be included on the finalized punch list. Contractor shall then reflect the result of such joint walk down and deliver the same to Owner for its review and approval, which submitted list shall be explicitly designated as the “Proposed Punch List” for the applicable Block. The Proposed Punch List shall include only Punch List Items for such Block, and shall include a Punch List Estimate for the completion or repair of each such Punch List Item and Contractor's estimated schedule for completion therefor. If Owner does not deliver any changes to the Proposed Punch List to Contractor within the later of (i) *** after Contractor's submission to Owner of such Proposed Punch List and (ii) and (b) *** after the date of the joint walk-down, such delay shall constitute an Owner-Caused Delay. The Proposed Punch List that is ultimately approved for a Block shall be referred to as the “Punch List” for such Block. If the Punch List for a Block is not finalized by the Block Substantial Completion Date for such Block, the Proposed Punch List as modified by Owner shall be deemed the Punch List for such Block for all purposes hereunder until the Parties resolve such dispute and otherwise finalize the

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Punch List for such Block. Contractor shall note on such Punch List the items under dispute.

(b) Completion of Punch Lists. Contractor shall proceed promptly to complete and correct the Punch List Items relating to the relevant Block or the Facility, as applicable, no later than *** after the relevant Block Substantial Completion Date or Facility Substantial Completion Date, as applicable. On a monthly basis after the Block Substantial Completion of a Block, Contractor shall prepare a punch list for such Block to include the date(s) that items listed on such Punch List are completed by Contractor and accepted by Owner. Notwithstanding any of the foregoing, the items listed on such Punch List shall not be considered complete until Owner shall have inspected such Punch List Items and acknowledged, by notation on the updated Punch Lists, that such item of Work is complete. If Owner does not so inspect and deliver such notations on the updated Punch Lists to Contractor (or dispute completion of the applicable items of Work if not accepted) within *** after Contractor submits the updated Punch List containing such Punch List Item to Owner, and Contractor has actually completed and corrected any Punch List Item listed on such Punch List, such failure by Owner shall constitute an Owner-Caused Delay. Contractor shall use best efforts to complete the Punch List Items in such a manner as to prevent any loss of power production to the Facility and Contractor shall not curtail or interrupt operation of the Project without Owner consent. Contractor will be responsible for all costs incurred during the completion of the Punch List Items.

(c) Creation of Project Punch List. Owner and Contractor shall agree upon the relevant Punch List Items to be completed by Contractor. Contractor and Owner shall jointly walk-down the Project and confer together as to the items which should be included on the finalized punch list for the Project. Contractor shall prepare a punch list for the Project to reflect the result of such joint walk down and deliver the same to Owner for its review and approval, which submitted list shall be explicitly designated as the “Proposed Project Punch List” and shall set forth all Work remaining to be completed after the Facility Substantial Completion Date. The Proposed Project Punch List may only contain Punch List Items, and shall include a Punch List Estimate for the completion or repair of each such Punch List Item and Contractor's estimated schedule for completion therefor. If Owner does not approve the Proposed Project Punch List or deliver any changes to the Proposed Project Punch List to Contractor within *** after the later to occur of (a) Contractor's submission to Owner of such Proposed Project Punch List, and (b) *** after the date of the joint walk-down, then such failure shall constitute an Owner-Caused Delay. The Proposed Project Punch List that is ultimately approved by Owner for the Project shall be referred to as the “Project Punch List”. If the Project Punch List is not finalized by the Facility Substantial Completion Date, the Proposed Project Punch List as modified by Owner shall be deemed the Project Punch List for all purposes hereunder until the Parties resolve such dispute and otherwise finalize the Project Punch List. Contractor shall note on such Project Punch List the items under dispute. Contractor shall use best efforts to complete the Punch List Items in such a manner as to prevent any loss of power production to the Facility and Contractor shall not curtail or interrupt operation of the Project without Owner consent.

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Contractor will be responsible for all costs incurred during the completion of the Punch List Items.

ARTICLE 17.

STAGES OF COMPLETION; DELAY AND CAPACITY LIQUIDATED DAMAGES;

EITC AND DEPRECIATION LOSS

17.1 Block Delay Liquidated Damages.

(a) If Contractor has not achieved Block Substantial Completion of a Block by the Guaranteed Block Substantial Completion Date for such Block (a “Late Block”) for reasons not excused under the terms of this Agreement, then Contractor shall pay to Owner delay liquidated damages (“Block Delay Liquidated Damages”) equal to, for each Day after the Guaranteed Block Substantial Completion Date for such Late Block, ***; provided that any amounts that Contractor is obligated to pay to Owner under this Section 17.1 are subject to the limitations set forth in Section 17.1(b) and Article 29. *** Block Delay Liquidated Damages shall cease to accrue upon the earlier to occur of (i) the Block Substantial Completion Date for such Block and (ii) the Guaranteed Facility Substantial Completion Date. After taking into account the set-off against the bonus payable under Section 17.1(b) in accordance with Section 17.4, any amount Contractor is obligated to pay to Owner under this Section 17.1(a) shall be due and payable within *** after Contractor's receipt of Owner's invoice submitted not more frequently than monthly following the Guaranteed Block Substantial Completion Date of the Late Block.

(b) Contractor shall be entitled to a bonus payment equal to, for each Day, ***. Contractor shall not be entitled to any bonus under this Section 17.1(b) after the earlier of (i) Facility Substantial Completion or (ii) the Guaranteed Facility Substantial Completion Date. After taking into account the set-off against Block Delay Liquidated Damages and/or Block Capacity Liquidated Damages in accordance with Section 17.4, any amount Owner is obligated to pay to Contractor under this Section 17.1(b) shall be due and payable within *** after the end of each month.

17.2 Guaranteed Facility Substantial Completion Delay Liquidated Damages. If Contractor has not achieved Facility Substantial Completion by the Guaranteed Facility Substantial Completion Date for reasons not excused under the terms of this Agreement, then Contractor shall pay to Owner delay liquidated damages (“Facility Delay Liquidated Damages”) equal to, for each Day after the Guaranteed Facility Substantial Completion Date that the Facility has not achieved Facility Substantial Completion, ***; provided that any amounts that Contractor is obligated to pay to Owner under this Section 17.2 are subject to the limitations set forth in Article 29. Payment of Facility Delay Liquidated Damages shall be made payable within *** after Contractor's receipt of Owner's invoice.

17.3 Block Capacity Liquidated Damages. If after the Block Substantial Completion Date of a Block (if such date is on or after the Guaranteed Block Substantial Completion Date for such Block), the Final Test Results of the most recent Capacity

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Test for such Block demonstrates that the Block meets the Minimum Capacity Level but not the Guaranteed Capacity (adjusted for uncertainty in accordance with Exhibit 16A) for such Block, Contractor shall pay to Owner liquidated damages for such shortfall (“Block Capacity Liquidated Damages”) in an amount equal to, for each Day that the Block Measured Capacity of such Block is below the Guaranteed Capacity (adjusted for uncertainty in accordance with Exhibit 16A) of such Block, ***; provided that any amounts that Contractor is obligated to pay to Owner under this Section 17.3 are subject to the limitations set forth in Article 29. Block Capacity Liquidated Damages shall cease to accrue upon the earlier to occur of (i) the date on which a Capacity Test for such Block demonstrates that such Block has achieved the Guaranteed Capacity (adjusted for uncertainty in accordance with Exhibit 16A) and (ii) the date that any Final Capacity Liquidated Damages are paid. After taking into account the set-off against the bonus payable under Section 17.1(b) in accordance with Section 17.4, any amount Contractor is obligated to pay to Owner under this Section 17.3 shall be due and payable within *** after Contractor's receipt of Owner's invoice submitted not more frequently than monthly. Notwithstanding the provisions above in this Section 17.3, Contractor shall not be obligated to pay any such Block Capacity Liquidated Damages with respect to any Day on which the Cumulative MWs exceeds Scheduled MWs for such Day as set forth in Exhibit 4B.

17.4 Netting. If any undisputed Block Delay Liquidated Damages are payable pursuant to Section 17.1(a) or any undisputed Block Capacity Liquidated Damages are payable pursuant to Section 17.3, the aggregate amount of undisputed Block Delay Liquidated Damages and undisputed Block Capacity Liquidated Damages payable shall be set-off against the aggregate amount of undisputed bonus payable pursuant to Section 17.1(b) on a pro rata basis, and (a) Contractor shall pay the net amount (if any) of undisputed Block Delay Liquidated Damages and the undisputed Block Capacity Liquidated Damages to Owner in accordance with Section 17.1(a) and Section 17.3, respectively and (b) Owner shall pay the net amount (if any) of undisputed bonus payable pursuant to Section 17.1(b).

17.5 Final Capacity Liquidated Damages.

(a) Contractor agrees that if based on the results of the Facility Capacity calculation performed in accordance with Exhibit 16A, the Facility shall have failed to achieve the Guaranteed Capacity, Contractor shall pay to Owner upon Facility Substantial Completion an amount equal to *** (the “Final Capacity Liquidated Damages”).

(b) In the event Contractor has paid Final Capacity Liquidated Damages pursuant to Section 17.5(a), and, following additional Capacity Tests conducted in compliance with the provisions set forth in Section 15.5, if the Facility Capacity calculation resulting from the last of such additional Capacity Tests (i) reduces the Capacity Shortfall, Owner shall reimburse Contractor the corresponding amount of Final Capacity Liquidated Damages resulting from such reduction or (ii) increases the Capacity Shortfall, Contractor shall pay to Owner additional Final Capacity Liquidated Damages calculated in accordance with Section 17.5(a).

(c) Amounts payable by Contractor to Owner pursuant to Section 17.5(b) may be set off by Owner against the payment due for Final Completion on the final

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Application for Payment. Any amounts that Contractor is obligated to pay to Owner under Sections 17.5(a) or 17.5(b) are subject to the limitations set forth in Article 29. After Contractor's payment of Final Capacity Liquidated Damages, Contractor shall have no further obligation to try to achieve, and no further liability to Owner for failure to achieve, the Guaranteed Capacity.

17.6 Liquidated Damages Reasonable. The Parties agree that the extent and amount of loss or damage to Owner as result of Contractor's failure (a) to achieve Block Substantial Completion by the Guaranteed Block Substantial Completion Date of a Block, (b) to achieve Facility Substantial Completion by the Guaranteed Facility Substantial Completion Date and (c) to achieve the Guaranteed Capacity for a Block or the Facility is impractical and difficult to determine with certainty. The Parties agree that such liquidated damages are a genuine pre-estimate of the damages suffered by Owner by reason of Contractor's failure to achieve or cause the Project to satisfy, obtain or achieve each Guaranteed Block Substantial Completion Date, the Guaranteed Facility Substantial Completion Date or the Guaranteed Capacity for a Block or the Facility and are not intended as a penalty. *** the amounts payable by Contractor to Owner under this Article 17 shall be Contractor's sole and exclusive liability to Owner, and Owner's sole and exclusive remedy, with respect to Contractor's failure (i) to achieve Block Substantial Completion of a Block by its Guaranteed Block Substantial Completion Date, (ii) to achieve Facility Substantial Completion by the Guaranteed Facility Substantial Completion Date or (iii) to achieve the Guaranteed Capacity for a Block or the Facility. If Contractor fails to pay any Block Delay Liquidated Damages, Facility Delay Liquidated Damages, Block Capacity Liquidated Damages or Final Capacity Liquidated Damages owing under this Article 17, Owner may deduct the amount thereof from any payment due, or that may become due, to Contractor under this Agreement or if no payment is due, may invoice Contractor for such amount. Nothing in this Article 17 shall be construed as relieving Contractor of its obligation to achieve Facility Substantial Completion.

17.7 Energy and Revenues of the Project. Any energy or revenues generated by the Project at any time, including during the performance of any testing, shall be solely for the benefit of Owner. This Section 17.7 shall not limit Contractor's right to receive any bonus in accordance with Section 17.1(b).

17.8 EITC and Depreciation Loss.

(a) The Parties acknowledge that the Contract Price reflects, in part, the value to Owner of certain tax benefits (as specified below) and to obtain those tax benefits in accordance with the expected schedule for the construction and completion of the Project.

(b) If any Block is not completed in accordance with the Guaranteed Block On-line Schedule (as in effect on the Effective Date) for any reason other than, subject to Section 17.8(f), an Owner-Caused Delay, an Excusable Event, a Force Majeure Event (but only with respect to subclause (ii) below) or an Owner Event of Default, then Contractor shall pay Owner, as a Contract Price adjustment and not as a penalty, the following amounts:

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(i) an amount equal to ***, and

(ii) an amount for each Block equal to the equivalent of interest (using the Wall Street Journal “prime rate” as of the dates specified below as an annual rate, compounded annually) on the following amounts, determined as follows: ***. For the avoidance of doubt, there is to be no “double counting” of the interest factors calculated under Sections 17.8(b)(ii)(A) and 17.8(b)(ii)(C) with respect to EITCs, and in the event the interest factor determined under Section 17.8(b)(ii)(A) includes with respect to the reduced EITCs reimbursed under Section 17.8(b)(i) a portion of the time value captured under Section 17.8(b)(ii)(B) with respect to the deferral of EITCs, then the amount due under Section 17.8(b)(ii)(B) shall be reduced by the amount of such overlap.

(c) Any Contract Price adjustment required by Section 17.8(b), shall be paid within *** of Owner providing Contractor a written request setting forth the calculations in reasonable detail.

(d) Within *** of receipt of such request, Contractor may request that *** (so long as they are not the accounting firm used by either Party) or another nationally recognized independent accounting firm selected by Owner and reasonably acceptable to Contractor verify the calculation. The fees and expenses of such accounting firm shall be borne by Contractor; provided, however, if the accounting firm determines that Owner's calculations were overstated by more than five (5) percent, then Owner shall pay (or, if applicable, reimburse Contractor) for such fees and expenses. Absent manifest error, the determination of such accounting firm shall be final and binding upon the parties.

(e) The calculation of any amount due pursuant to Section 17.8(b) is intended to be hypothetical. Therefore, the amount shall not be altered based on (i) Owner's actual federal income tax posture or liability, (ii) any audit or adjustment by the Internal Revenue Service, (iii) any transfer, merger, sale, reorganization, lease, financing or other transaction entered into by Owner or any Affiliate thereof, (iv) any tax election made by Owner or any Affiliate thereof, (v) any penalties or interest payable to any tax authority, and (vi) all state tax items shall be disregarded.

(f) ***

17.9 Enforceability. The Parties explicitly agree and intend that the provisions of this Article 17 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 17 on the grounds that such liquidated damages provisions should not be enforced as constituting a penalty or a forfeiture.

INITIALS: Owner: __________ Contractor: __________

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ARTICLE 18.

FINAL COMPLETION

18.1 Generally. Contractor shall achieve Final Completion of the Facility by the earlier of (a) *** after the Facility Substantial Completion Date and (b) *** (the “Guaranteed Final Completion Date”); provided that Contractor shall have an *** cure period if Final Completion is not achieved. Subject to Section 18.2 and 18.3, Final Completion of the Facility means that all of the following conditions have been met:

(a) Facility Substantial Completion has occurred;

(b) the performance of the Work for the Facility is complete, including all Punch List Items or pursuant to Section 8.1(c), Owner has withheld any remaining Punch List Holdback to complete any items on the Project Punch List not completed by Contractor in accordance with the terms hereof;

(d) Contractor has paid all bills from its Subcontractors related to the Project that are not in dispute;

(e) no Contractor Liens shall be outstanding against the Project and Owner shall have received all required final lien waivers under Section 8.4;

(f) Contractor has complied with its clean-up obligations pursuant to Section 3.15;

(g) Contractor has paid all Block Delay Liquidated Damages, Facility Delay Liquidated Damages, Block Capacity Liquidated Damages and Final Capacity Liquidated Damages, if any, to the extent required in accordance with this Agreement;

(h) ***; and

(i) Contractor shall have delivered the notice of Final Completion to Owner pursuant to Section 18.2.

18.2 Certificate of Final Completion. When Contractor considers that the Facility has achieved Final Completion in accordance with Section 18.1, it shall deliver to Owner a Certificate of Final Completion signed by Contractor, together with reasonable supporting documentation evidencing the satisfaction of the provisions in Section 18.1. Upon receipt of the Certificate of Final Completion from Contractor together with supporting documentation, Owner shall promptly, but in no event later than *** from the date of receipt of Contractor's notice, either issue Contractor: (a) a countersignature to the Certificate of Final Completion, signed by Owner's Representative and stating that the Final Completion Date for the Facility is the date on which Contractor gave its notice to Owner under this Section 18.2; or

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(b) a written notice stating why Owner does not consider that Final Completion of the Facility has been achieved.

18.3 Failure to Achieve Final Completion. If Owner fails to issue a Certificate of Final Completion pursuant to Section 18.2(a) or a written notice under Section 18.2(b) above within *** after receipt of Contractor's notice under Section 18.2, Final Completion shall be deemed to have been achieved as of the date Contractor gave its notice to Owner under Section 18.2. If Contractor receives a notice under Section 18.2(b) above, Contractor shall take the necessary steps to achieve Final Completion of the Facility at Contractor's cost. Upon completion of such corrective action, Contractor shall provide a new notice of Final Completion to Owner for approval and the procedures set forth under Sections 18.2 and 18.3 shall be repeated until such time as the Certificate of Final Completion has been accepted by Owner. Any disputes regarding the existence or correction of any alleged deficiencies shall be resolved under Article 28.

ARTICLE 19.

SUSPENSION OF THE WORK

19.1 Suspension for Non-Payment. Contractor may, upon *** prior written notice to Owner, suspend the Work temporarily if Owner fails to pay any undisputed amount due and owing to Contractor hereunder by the date payment is due pursuant to Article 8. Contractor may not suspend the Work if Owner pays the amount owed within the *** after its receipt of a notice of suspension under this Section 19.1. Contractor's entitlement to suspend the Work under this Section 19.1 is separate from and in addition to its entitlement to terminate this Agreement for non-payment pursuant to Section 20.3(a).

19.2 Contractor Suspension. Owner may, upon *** prior written notice to Contractor, direct Contractor to suspend its performance of all or any portion of the Work; provided that no prior written notice shall be required if such suspension is due to an imminent threat of material injury or damage to Persons or property or is the result of a material injury or damage to Persons or property or as otherwise required by Applicable Law. Upon the commencement of the suspension, Contractor shall stop the performance of the suspended Work except as may be necessary to carry out the suspension and protect and preserve the Work completed prior to the suspension. Contractor shall thereafter resume any suspended Work as soon as is practicable (taking into account the length of the suspension) after receipt of a written direction from Owner to resume the Work.

19.3 Extended Owner Suspension. With respect to suspensions for which Owner fails to allow or direct Contractor to resume the Work within *** after the date of suspension under Section 19.1 or Section 19.2, Owner shall pay Contractor, without duplication to the payment of amounts payable in connection with a Change Order or otherwise, within *** after receipt of each invoice (which invoices shall be submitted on a monthly basis during the applicable suspension period for Contractor's incremental costs incurred with respect to such suspension), in each case to the extent actually and demonstrably incurred during the suspension period that are documented by Contractor to the reasonable satisfaction of Owner, to the extent attributable to the suspension, that are: (a) Direct Costs, (b) costs associated with the

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repair, replacement or refurbishment of any of the Equipment in accordance with Industry Standards, (c) costs incurred for the purpose of safeguarding or storing the Work and the Equipment at the point of fabrication, in transit, or at the Site in accordance with Industry Standards and the recommendations of the applicable manufacturers, (d) costs for required rescheduling of the Work, (e) for personnel, Subcontractors or rented Equipment, the payments for which, with Owner's prior written concurrence, are continued during the suspension period, (f) costs for extending applicable warranties for Facility Equipment and (g) costs otherwise incurred solely due to suspension of the Work.

19.4 Resumption of Work After Suspension. After the resumption of the performance of the Work, Contractor shall, after due notice to Owner, examine the Work affected by the suspension. Subject to Contractor's right to request a Change Order in accordance with Section 10.3 for cost and/or schedule relief for same, Contractor shall make good any defect, deterioration or loss of the construction or the Work affected that may have occurred during the suspension period. Subject to Section 19.5, as Contractor's remedy for same, any extension to the Construction Schedule shall be to the extent set forth in and in accordance with Section 10.3. If Contractor's costs increase despite Contractor's reasonable efforts to mitigate any such increases pursuant to Section 11.3, the Contract Price shall be increased by Contractor's incremental Direct Costs incurred by reason of the suspension, as a direct result of such suspension plus a xxxx-up of ***, such adjustments to be set forth in a Change Order and added to the Contract Price.

19.5 Costs and Schedule Relief for Contractor-Caused Suspension. Notwithstanding anything to the contrary, Contractor shall bear its own costs incurred due to a suspension by Owner pursuant to Section 19.2 and Section 19.3 where such suspension is necessitated by a breach of this Agreement by Contractor due to any act or omission by any Contractor Party or Subcontractor and shall not be entitled to a change to the Construction Schedule or an extension of time to the Guaranteed Block Substantial Completion Dates, Guaranteed Facility Substantial Completion Date or Guaranteed Final Completion Date.

ARTICLE 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 fails to pay any amount due and owing to Owner under this Agreement that is not disputed in good faith, and such failure remains outstanding for a period of *** or more after receipt of notice from Owner stating that if Contractor does not pay such amount Owner may terminate in accordance with Section 20.2; or

(b) an Insolvency Event occurs with respect to Contractor or, while the Contractor Performance Security is required to be in place, SunPower Corporation; or

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(c) Contractor fails to maintain any insurance coverages required of it in accordance with Article 23 and Contractor fails to remedy such breach within *** after the date on which Contractor first receives a notice from Owner with respect thereto; or

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

(e) Contractor fails to obtain and maintain the credit support requirements set forth in Exhibit 31 as and when required pursuant to the terms thereof; provided, however, that if Contractor fails to deliver the Acceptable Letter of Credit *** as and when required by Exhibit 31, Owner may withhold additional amounts in accordance with Section 8.10; or

(f) ***; or

(g) except as a result of an Owner Event of Default, a Force Majeure Event, an Excusable Event or such other event for which Contractor is entitled to schedule relief under Section 10.3 or during the pendency of a suspension under Section 19.3, Contractor Abandons the Work and Contractor fails to remedy such breach within *** after receipt of notice from Owner; or

(h) Contractor violates in any material respect any of the provisions of this Agreement not otherwise addressed in this Section 20.1 (except for Sections 17.1 and 17.2, the exclusive remedy for which is provided in Article 17), which violation remains uncured for *** following Contractor's receipt of written notice thereof from Owner; provided, that if such violation is capable of cure but cannot reasonably be cured within such *** period, then Contractor's right to cure shall extend beyond such *** period for so long as Contractor is diligently attempting to cure such violation; or

(i) a representation or warranty made by Contractor in or pursuant to this Agreement was false or misleading in any material respect as of the date on which it was made and has not been cured within *** after Contractor receives a notice from Owner with respect thereto; provided that such *** limit shall be extended if: (i) such failure is reasonably capable of cure and curing such failure reasonably requires more than ***; and (ii) Contractor commences such cure within such *** period and diligently prosecutes and completes such cure within *** thereafter, in each case, after the date on which Contractor receives a Notice from Owner with respect thereto; or

(j) SunPower Corporation defaults in the performance of its obligations under Contractor Performance Security or Contractor Performance Security ceases to be in full force and effect as required by Section 8.8 and, in either case, Contractor has failed to deliver a comparable replacement therefor within *** after such failure; or

(k) if SCE terminates the PPA or CAISO terminates the Interconnection Agreement from an event of default or termination right thereunder resulting from (a) the negligence or willful misconduct of any Contractor Party or any Subcontractor in connection with this Agreement or (b) the failure of any Contractor Party or any

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Subcontractor to comply with any of its obligations or a breach under this Agreement; or

(l) Contractor fails to comply with the requirements of Section 3.29; or

(m) SunPower Corporation is in breach of or default under the Side Letter.

20.2 Owner Rights and Remedies. If a Contractor Event of Default occurs, subject to Article 29 and without permitting double recovery, 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 and, upon such termination:

(i)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 or purchase orders as Owner may request (in which case Contractor shall execute all assignments or other reasonable documents and take all other reasonable steps requested by Owner which may be required to vest in Owner all rights, set-offs, benefits and titles necessary to effect such assumption by Owner), and shall license, in the manner provided herein, to Owner all Intellectual Property Rights (to the extent not previously licensed in accordance with the terms hereof) 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 (and solely in connection with the Project), 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 reasonably direct, and Owner may take possession of any or all Contract Documents necessary for completion of the Work (whether or not such Contract Documents are complete);

(ii)***; and

(iii)if Owner terminates this Agreement, Owner may seek damages as provided in Section 20.5 or as otherwise provided.

(b)Subject to a final determination of the amount of damages owing to Owner and to any deductions or offsets to which Owner is entitled under Section 20.2 (g), Owner shall pay Contractor the outstanding portion of the Contract Price due for all Work performed and Facility Equipment supplied by Contractor up to and including the date of termination;

(c)Contractor shall turn over to Owner all Facility Equipment and other materials paid for by Owner;

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(d)Owner may proceed against the Contractor Performance Security in accordance with its terms;

(e)Owner may draw any of the Acceptable Letters of Credit or letters of credit in accordance with its terms;

(f)Subject to the dispute resolution procedures set forth in Article 28, Owner may seek equitable relief solely to cause Contractor to take action, or to refrain from taking action, pursuant to this Agreement;

(g)Any Block Delay Liquidated Damages or Facility Delay Liquidated Damages incurred by Contractor accruing as of the date of termination shall immediately cease to accrue; provided that Owner shall have the remedies in Article 17 for any delays or performance shortfalls to the extent caused by or attributable to Contractor;

(h)Owner may pursue the dispute resolution procedures set forth in Article 28 to enforce the provisions of this Agreement;

(i)Subject to the dispute resolution procedures set forth in Article 28 and without permitting double recovery, Owner may seek actual damages subject to the limitations of liability set out in this Agreement;

(j)Owner may pursue remedies in accordance with Section 20.6;

(k)Without limiting Contractor's right to assert any defenses with respect to such payment, Owner may make such payments, acting reasonably, that Contractor is failing to pay in connection with the relevant Contractor Event of Default and either offset the cost of such payment against payments otherwise due to Contractor under this Agreement or Contractor shall be otherwise liable to pay and reimburse such amounts to Owner;

(l)***;

(m)***; and

(n)***

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 fails to pay any amount of the Contract Price owing under this Agreement that is not disputed in good faith, and such failure remains outstanding for a period of *** after Owner has received a notice of such payment default from Contractor stating that if Owner does not pay such amount Contractor may terminate in accordance with Section 20.4; or

(b) An Insolvency Event occurs with respect to Owner or, while the Equity Contribution Agreement is required to be in place, MEHC; or

(c) Owner fails to maintain any insurance coverages required of it in accordance with Article 23 and Owner fails to remedy such breach within *** after the date on which Owner first receives a notice from Contractor with respect thereto; or

(d) Owner violates in any material respect any of the provisions of this Agreement not otherwise addressed in this Section 20.3, which violation remains uncured for *** following Owner's receipt of written notice thereof from Contractor; provided, that if such violation is capable of cure but cannot reasonably be cured within such *** period, then Owner's right to cure shall extend beyond such *** period for so long as Owner is diligently attempting to cure such violation; or

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

(f) ***

20.4 Contractor Rights and Remedie. If an Owner Event of Default occurs, subject to Article 29 and Section 20.5 and without permitting double recovery, 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) Contractor may terminate this Agreement upon providing notice of such termination to Owner;

(b) Contractor shall be compensated by Owner for any and all amounts due and owing from Owner under this Agreement;

(d) Subject to the dispute resolution procedures set forth in Article 28, Contractor may seek equitable relief to preserve its rights during the pendency of any dispute or to enforce its rights under this Agreement;

(e) Contractor may suspend the Work by giving notice of such suspension to Owner concurrently with or at any time after Contractor gives Owner notice described in Section 20.3(a);

(f) Contractor may pursue the dispute resolution procedures set forth in Article 28 to enforce the provisions of this Agreement;

(g) Contractor may pursue remedies in accordance with Section 20.6.

20.5 Termination Payment.

(a) Upon termination for an Owner Event of Default, as Contractor's sole and exclusive remedy for compensation arising out of the Owner Event of Default permitting termination of this Agreement:

(i)Owner shall pay to Contractor all amounts due to Contractor through the effective date upon which the termination occurred as set forth on the Payment Schedule, plus amounts in payment of partially completed milestones in the Construction Schedule;

(ii)Owner shall, on the date that is *** after Owner's receipt of an Application for Payment therefor, pay the applicable Termination Payment due to Contractor;

(iii)***

(b) ***

20.6 Termination Right Not Exclusive. Subject to Section 20.5(a) and Section 20.7, a Party's right to terminate this Agreement pursuant to this Article 20 is in addition to, and without derogation from, any other rights and remedies such Party may have against the other Party under this Agreement or any Applicable Law, and each Party expressly reserves all such rights and remedies it may have against the other Party, whether in contract, tort or otherwise.

20.7 Termination Events for Extended Force Majeure.

(a) In addition to the other rights and remedies set forth in this Article 20, in the event that a Force Majeure Event has occurred and has persisted for a period in excess of *** and such Force Majeure Event adversely affects a significant portion of the Work, Contractor may elect to terminate this Agreement upon providing notice of such termination to Owner.

(b) ***.

(c) All obligations that expressly survive the termination of this Agreement in accordance with Section 30.1, including any indemnification obligations (provided that Owner cannot make any indemnity claim pursuant to Section 24.1(c)), shall survive a termination pursuant to this Section 20.7. For the avoidance of doubt, Contractor will have no obligations or liability under Section 17.8 after termination of this Agreement pursuant to this Section 20.7.

(d) The obligations under this Section 20.7 shall survive any termination of this Agreement.

20.8 ***

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(a) ***

(b) ***

(d) ***

20.9 ***

(a) ***

(b) ***

20.10 Contractor Conduct. Upon issuance of a notice of termination pursuant to this Article 20, Contractor shall: (a) cease operations as directed by Owner in the notice; (b) take action necessary, or that Owner may reasonably direct, for the protection and preservation of the Work; and (c) except for Work directed to be performed prior to the effective date of termination stated in such notice, or except as expressly requested by Owner or under Section 20.2(a)(i), terminate all existing subcontracts and purchase orders that are terminable without premium, penalty or termination charges and enter into no further subcontracts and purchase orders with respect to the Work or the Project.

ARTICLE 21.

WARRANTIES

21.1 Sole Warranty. Except as set forth in Section 2.1 and Section 13.4(a), (a) the Warranties provided in this Article 21 shall be Contractor's sole warranty with respect to the Work and the Facility and (b) Contractor does not make (and hereby expressly disclaims) any other warranties of any kind whatsoever.

21.2 No Liens or Encumbrances. To the extent Owner's payments to Contractor are fully made in accordance with this Agreement, Contractor warrants that title to all Work, materials and Facility Equipment provided by Contractor and its Subcontractors and Suppliers hereunder shall pass to Owner free and clear of all Contractor Liens. Contractor shall diligently pursue the removal and discharge of any lien filings relating to Contractor Liens.

21.3 Defect Warranty. Contractor warrants to Owner:

(a) Defect Warranty. That a Block, all Facility Equipment furnished by Contractor and any of the Subcontractors and other Work, including installation shall, upon the Block Substantial Completion Date for such Block: (i) be free from defects in materials, construction, fabrication and workmanship; (ii) be new and unused (except for use as part of the Facility); (iii) be of good quality and in good condition and (iv) conform to the applicable requirements of the Scope of Work in effect as of (x) prior to the Facility Substantial Completion Date, the applicable Block Substantial Completion Date and (y) after the Facility Substantial

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Completion Date, the Facility Substantial Completion Date (collectively, the “Defect Warranty”). For the avoidance of doubt, the Defect Warranty shall not include the Modules, defects of which are covered by the Module Warranty.

(b) ***

21.4 Warranty Period.

(a) Defect Warranty Period. With respect to any Block (and any Facility Equipment furnished by Contractor and any of the Subcontractors and all other Work including installation services, by the Block Substantial Completion Date of such Block), the Defect Warranty shall commence on the Block Substantial Completion Date of such Block and end on the later to occur of (i) the *** anniversary of the relevant Block Substantial Completion Date and (ii) *** after the Facility Substantial Completion Date (such period, the “Defect Warranty Period”) and Contractor shall have no liability under the Defect Warranty for any Defect Warranty claims submitted by Owner from and after the expiration of the Defect Warranty Period; provided that a claim may be made by Owner within *** after the end of a Defect Warranty Period for a matter which arose within such Defect Warranty Period; provided, further, however, that the Defect 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, re-performance, correction or replacement.

(b) ***

(c) Warranty Claims. With respect to warranty claims under Section 21.4(a) or Section 21.4(b) 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 21.

21.5 Exclusions. The Defect Warranty *** shall not apply to damage to or failure of any Work or Facility Equipment to the extent such damage or failure is caused by the following, provided that in no event shall the breach or fault of a Contractor Party, including O&M Provider, be the basis of an exclusion from the Defect Warranty ***:

(a) a failure by Owner or its representatives, agents or contractors (other than O&M Provider under the O&M Agreement) to maintain such Work or Facility Equipment in accordance with Industry Standards or in accordance with the recommendations set forth in the Required Manuals;

(b) operation of such Work or Facility Equipment by Owner or its representatives, agents or contractors (other than O&M Provider under the O&M Agreement) in excess of or outside of the operating parameters or specifications for such Work or Facility Equipment as set forth in the Required Manuals;

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(c) any repairs, adjustments, alterations, replacements or maintenance that may be required as a result of normal wear and tear; provided, however, that this exclusion shall not operate to limit any warranties or guarantees set forth in the O&M Agreement, the Module Warranty or the Performance Guaranty Agreement;

(d) (i) a Force Majeure Event or (ii) ***;

(e) to the extent arising out of or resulting from a specific written direction of Owner relating to the Work and/or the Facility which Contractor has followed, provided that any such defect or deficiency is not the result of Contractor's or any Supplier's or Subcontractor's (or of any of their respective personnel's, subcontractors' or agents') failure to properly implement the Work in accordance with this Agreement and Contractor notified Owner that following such direction would affect the applicable Defect Warranty ***;

(f) damage caused by rodents, insects, other animals, or plant life that are atypical of the Site; or

(g) any modifications or enhancement to the Facility, or alterations, repairs or replacements performed by Owner or any Owner contractor after the relevant Block Substantial Completion not executed in accordance with the Required Manuals, Applicable Law or Industry Practices to the extent that Contractor has not provided prior written approval (and Owner agrees to reimburse Contractor for its reasonable costs incurred in reviewing and analyzing any request for such an approval).

21.6 Correction of Defects.

(a) Notice of Warranty Claim. If, during the applicable Warranty Period or within *** thereafter, Owner provides notice to Contractor within a reasonable period after discovery that the applicable portion of the Facility has manifested a defect during the Defect Warranty Period ***, then Contractor as promptly as practicable, but in no event later than *** following receipt of such notice, shall inspect such claimed warranty defect or nonconformance, and at Contractor's own cost and expense as promptly as practicable refinish, repair or replace, at its option, such non-conforming or defective part of the Facility or Work and resulting property damage to the Project caused by such defective Work. Contractor shall pay the cost of removing any defective component, the costs of shipping and installation of replacement parts in respect of a defect, and the cost of re-performing, repairing, replacing or testing such item as shall be necessary to cause conformance with the Defect Warranty ***. The timing of the work to be completed with respect to any such remediation or repair shall be subject to Owner's approval. Such remediation or repair shall be considered complete when the applicable defect has been corrected by the affected equipment or parts being restored to Technical Specifications and the other requirements of this Agreement and the Contract Documents, and compliance with Applicable Laws, Industry Standards and Applicable Permits. Notwithstanding the foregoing, if the Facility shall fail to satisfy the applicable Warranty during the applicable Warranty Period, and such failure endangers human health or property or materially and

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adversely affects the operation of the Facility, Contractor shall correct the failure as soon as is practicable or, if Contractor does not so correct such failure, Owner shall be permitted to correct such failure at Contractor's sole cost pursuant to Section 21.6(b). For the purposes of this Section 21.6(a), manifestation of a defect shall include failure to function and physical damage.

(b) Failure of Contractor to Perform Warranty Work. If after Block Substantial Completion, Contractor does not use its reasonable efforts to proceed to complete the applicable Warranty work, or cause any relevant Subcontractor or Supplier to proceed to complete the Warranty work, required to satisfy any Warranty claim properly asserted under the terms of this Article 21 in accordance with the terms hereof, Owner shall, after giving Contractor notice of Owner's intent to perform the remedial Warranty work itself at least *** prior to Owner's commencement of any such remedial Warranty work, have the right to perform the necessary Warranty work to remedy the Warranty claim, or have third parties perform the necessary Warranty work and Contractor shall bear the reasonable costs thereof. If Contractor (or the relevant Subcontractor or Supplier) implements a plan to diligently perform the Warranty work to satisfy such Warranty claim during such *** period, and thereafter diligently prosecutes the execution of such plan, Owner shall not perform, or cause any third party to perform, such Warranty work. If a defect or other nonconformance to the applicable Warranty arises during the applicable Warranty Period and such defect or nonconformance occurs under circumstances where there is an immediate need for repairs due to the endangerment of human health or property, Owner may perform such Warranty work for Contractor's account; provided, however, that upon completion of such work, Owner shall provide Contractor notice of, and an opportunity to inspect, such Warranty work. Within *** after receiving the notice referenced in the preceding sentence, Contractor shall inspect such work performed by Owner and either (i) ratify Owner's work or (ii) elect to repair or otherwise correct Owner's work. In the event that Contractor elects to proceed pursuant to sub-clause (ii), Contractor shall complete such work, as necessary under the circumstances, with reasonable promptness. If Owner performs or causes third parties to perform such Warranty work as set forth above, Owner shall provide reasonable access to Contractor to the Facility to observe Owner's and its Affiliates' or any third party's performance of the Warranty work. The performance of Warranty work, either performed by Owner or performed by third parties engaged by Owner which was performed in accordance with the applicable provisions of this Agreement related to such Warranty work that Contractor, had it performed the Warranty work itself, would have observed to comply with this Agreement, shall be deemed covered by the Warranties, and Contractor shall reimburse Owner for all reasonable costs, charges and expenses incurred by Owner in connection therewith plus ***.

(i) Major Facility Equipment Warranties. Contractor shall obtain or has obtained warranties for the Equipment supplied by the Major Subcontractors (other than the Modules) (the “Major Facility Equipment Warranties”). Upon

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Owner's request, Contractor shall deliver to Owner copies of any Major Facility Equipment Warranty.

(ii) Assignment. All Major Facility Equipment Warranties shall be assignable to Owner. If a Contractor Event of Default exists and this Agreement has been terminated in accordance with Article 20, or otherwise at the end of each Defect Warranty Period, Contractor shall assign to Owner (unless previously assigned), or otherwise hold in trust on behalf of Owner until such assignment shall occur, at the request and direction of Owner, all unexpired Major Facility Equipment Warranties, subject to the terms and conditions of any such warranties; provided that, notwithstanding such assignment, Contractor shall be entitled to enforce each such warranty to the exclusion of Owner through the earlier of the termination of this Agreement in accordance with Article 20 and the end of the applicable Defect Warranty Period. Notwithstanding the foregoing, Contractor shall not be obligated to assign any claims of Contractor with respect to any Major Subcontractor then or thereafter existing so long as Contractor is performing its obligations under this Article 21. At Owner's request, Contractor shall deliver to Owner, at the end of each Defect Warranty Period (unless previously provided), copies of all subcontracts containing such Major Facility Equipment Warranties with appropriate redactions of the financial and other terms thereof unrelated to the warranties assigned.

21.7 Module Warranty and Performance Guaranty Agreement. Contractor shall issue (or shall cause an Affiliate thereof to issue) warranties for the Modules in accordance with the SunPower Limited Product and Power Warranty for PV Modules attached as Exhibit 14 (the “Module Warranty”) and shall guarantee the performance of the Modules in accordance with the Performance Guaranty Agreement attached as Exhibit 28 (the “Performance Guaranty Agreement”). No claim under the Module Warranty or Performance Guaranty Agreement shall be invalidated due to the acts or omissions of Contractor or its Subcontractors.

21.8 Limitations On Warranties. EXCEPT FOR THE EXPRESS WARRANTIES AND REPRESENTATIONS SET FORTH IN SECTION 2.1 and Section 13.4(a), AND THIS ARTICLE 21, CONTRACTOR DOES NOT MAKE ANY EXPRESS WARRANTIES OR REPRESENTATIONS, OR ANY IMPLIED WARRANTIES OR REPRESENTATIONS, OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE. THE REMEDIES PROVIDED FOR IN THIS ARTICLE 21 WITH RESPECT TO ANY WORK WHICH FAILS TO SATISFY THE DEFECT WARRANTY DURING THE APPLICABLE DEFECT WARRANTY PERIOD *** SHALL BE THE SOLE AND EXCLUSIVE REMEDIES OF OWNER AS A RESULT OF SUCH FAILURE. This Section 21.8 does not operate to limit any warranties or guarantees set forth in the O&M Agreement, the Module Warranty or the Performance Guaranty Agreement.

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ARTICLE 22.

PUBLICITY

22.1 Signage. Subject to the prior approval of Owner, which shall not be unreasonably withheld, Contractor shall have the right to erect signage at a prominent location on the Site indicating Contractor's role as designer and builder of the Facility. Contractor's name may remain on such signage from the Effective Date until the ***. Any such signage shall comply with Applicable Laws and Owner/lessor requirements and shall not interfere with the operation of the Facility.

22.2 Press Releases. Subject to Section 25.1, as applicable, the Parties shall jointly agree upon the necessity and content of any press release in connection with the matters contemplated by this Agreement. Contractor shall coordinate with Owner with respect to, and provide Owner advance copies of the text of, any proposed announcement or publication that may include any non-public information concerning the Work prior to the dissemination thereof to the public or to any Person other than Subcontractors, Suppliers or advisors of Contractor, in each case, who agree to keep such information confidential. A Party shall not disseminate any such announcement or publication without the other Party's consent, not to be unreasonably withheld.

22.3 Contractor's Continued Access to Information and the Site.

(a) Notwithstanding anything to the contrary in this Section 22.3, Contractor shall have the right to utilize general information about the Project, including photographs, in its promotional materials and public statements. All Contractor usage of general information about the Project, including promotional materials, public statements or photographs, must indicate that Owner is the owner of the Project and cannot disparage the Project or operation of it or Owner or any of its Affiliates.

(b) So long as this Agreement has not been terminated for a Contractor Event of Default, through the Final Completion Date, Contractor shall request access to the Facility by telephone or email to Owner not less than *** prior to any desired visit to the Site and after the Final Completion Date, all requests for Contractor's access to the Site for any tours made by Contractor shall be subject to Owner's consent, not to be unreasonably withheld. Owner shall have the right to join on any tours by Contractor, including those tours with media, political and community members.

(c) Contractor shall require all Contractor personnel and guests admitted to the Site to observe all applicable safety and security standards. Contractor shall provide a copy of any photographs, video, or other promotional material to Owner for review and approval prior to release. Owner may utilize photographs and video of the completed Project (or any completed portion thereof) in connection with public statements, for promotional purposes or otherwise.

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ARTICLE 23.

INSURANCE

23.1 Contractor's Insurance. Contractor shall, at its expense, procure or cause to be procured, and maintain or cause to be maintained, the policies of insurance and corresponding coverages specified in Part I of Exhibit 15 (“Contractor's Insurance”). Unless otherwise specified in Exhibit 15, Contractor's Insurance shall commence no later than the Effective Date and shall remain in full force and effect at all times from commencement of the Work until Final Completion, unless required for a longer or shorter period in accordance with Exhibit 15.

23.2 Owner's Insurance. Owner shall, at its expense, procure or cause to be procured, and maintain or cause to be maintained, the policies of insurance and corresponding coverages specified in Part II of Exhibit 15 (“Owner's Insurance”). Owner's Insurance shall commence on the Effective Date and shall remain in full force and effect at all times until the expiration of the last Warranty Period, unless required for a longer or shorter period in accordance with Exhibit 15. Subject to the prior agreement of the Parties and the affected insurers, Owner's Insurance may be included, at Owner's cost and responsibility, under one or more policies of Contractor's Insurance.

23.3 Ratings. All policies of insurances required or otherwise contemplated under this Agreement shall be provided by insurance companies having an A.M. Best Insurance Reports rating of *** or better, and shall otherwise be in accordance with the requirements of this Article 23 and Exhibit 15.

23.4 Policy Requirements. Contractor's Commercial General Liability and Worker's Compensation insurance policies shall: (a) provide for a waiver of subrogation rights against Owner and all Owner Parties and Financing Parties, and of any right of the insurers to any set-off or counterclaim or any other deduction, whether by attachment or otherwise, in respect of that policy; and (b) list Owner and the Owner Parties as “additional insured” with respect to liability arising out of or in connection with the Work by or on behalf of Contractor, excluding any contributory liability of Owner or any Owner Parties.

23.5 No Limitation and Release. Unless otherwise expressly provided in this Agreement, the insurance policy limits set forth in Exhibit 15 shall not be construed to limit the liability of the insured Party under this Agreement. Notwithstanding the foregoing sentence, each Party releases and waives any and all rights of recovery against the other Party and all of its Affiliates, subsidiaries, employees, successors, permitted assigns, insurers and underwriters that the other Party may otherwise have or acquire in, or from, or in any way connected with, any loss covered by policies of insurance maintained or required to be maintained by that Party pursuant to this Agreement or because of deductible clauses in or inadequacy of limits of any such policies of insurance.

23.6 Reduction or Ceasing to be Maintained. If at any time the insurance to be provided by Owner or Contractor hereunder shall be reduced or cease to be maintained, then (without limiting the rights of the other Party in respect of any default that

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arises as a result of such failure) the other Party may at its option take out and maintain the insurance required hereby and, in such event, (a) Owner may withhold the cost of insurance premiums expended for such replacement insurance from any payments to Contractor, or (b) Owner shall promptly reimburse Contractor for the premium of any such replacement insurance, as applicable.

23.7 Expiration. With respect to any insurance carried by Contractor which may expire before the date specified in Section 23.1, Contractor shall, at least *** prior to the relevant policy renewal date, submit to Owner certificates of insurance, insurer binders or other satisfactory evidence that coverage required by this Article 23 has been renewed.

ARTICLE 24.

INDEMNITY

24.1 Contractor Indemnity. Contractor shall indemnify, hold harmless and defend Owner and all Owner Parties from and against the following:

(a) all Losses arising from third-party claims for property damage, personal injury or bodily injury or death to the extent caused by any negligent, willful, reckless or otherwise tortious act or omission (including strict liability) of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them, or anyone for whose acts such Person may be liable during the performance of the Work or from performing or from a failure to perform any of its obligations under this Agreement, or any curative action under any Warranty following performance of the Work;

(b) all Losses associated with a take of a protected species if any are found on the Site during the performance of the Work;

(c) all Losses, ***, under the PPA or Interconnection Agreement (including liquidated damages) attributable to a Non-Excusable Event and, subject to the provisions of Section 24.6, if SCE terminates the PPA for any reason resulting from Contractor's failure to achieve the Facility Substantial Completion Date by the Commercial Operation Deadline***;

(d) Losses sustained by Owner as a result of Contractor's breach of Section 3.29;

(e) all Losses incurred by Owner as a result of a claim under the Project Labor Agreement against Owner arising from the construction of the Project and performance of the Work;

(f) all Losses that directly arise out of or result from all claims for payment of compensation for Work performed hereunder, whether or not reduced to a lien or mechanics lien, filed by Contractor or any Subcontractors, or other persons performing any portion of the Work, including reasonable attorneys' fees and expenses incurred by

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any Owner Party in discharging any Contractor Lien, except to the extent of a breach by Owner in relation to any obligation it has to make a payment under this Agreement;

(g) all Losses that directly arise out of or result from employers' liability or workers' compensation claims filed by any employees or agents of Contractor or any of the Subcontractors, regardless of negligence of Owner or any Owner Party contributing to such Losses;

(h) all Losses arising from third-party claims, including by Subcontractors and for property damage, personal injury or bodily injury or death that directly or indirectly arise out of or result from the failure of Contractor or any of the Subcontractors to comply with the terms and conditions of Applicable Laws during their performance of the Work;

(i) all fines or penalties issued by any Governmental Authority that directly arise out of or result from the failure of the Project (or any portion thereof), as designed, constructed and completed by Contractor or any Subcontractor, to be capable of operating in compliance with all Applicable Laws or the conditions or provisions of all Applicable Permits (to the extent the Applicable Permits relate to the Work), in each case, as in effect as of the Facility Substantial Completion Date;

(j) any and all fines, penalties or assessments issued by any Governmental Authority that Owner may incur as a result of executing any applications to any such Governmental Authority at Contractor's request;

(k) all Losses arising from claims by any Governmental Authority that directly or indirectly arise out of or result from the failure of Contractor to pay, as and when due, all Taxes (other than Owner Taxes), fees or charges of any kind imposed by any Governmental Authority for which Contractor is obligated to pay pursuant to the terms of this Agreement;

(l) all Losses arising from claims by any Governmental Authority claiming Taxes (other than Owner Taxes) based on gross receipts or on income of Contractor, any of the Subcontractors, or any of their respective agents or employees with respect to any payment for the Work made to or earned by Contractor, any of the Subcontractors, or any of their respective agents or employees under this Agreement;

(m) all fines or penalties issued by, and other similar amounts payable to, any Governmental Authority that arise out of or result from the failure of Contractor, a Subcontractor or any of their respective agents or employees to comply with any Applicable Permit, except where such non-compliance is excused pursuant to the terms of this Agreement;

(n) all Losses arising from claims by the counterparties to the agreements setting forth the Real Property Rights arising out of or in connection with Contractor's performance of the Work, including any crop damages;

(o) all Losses, including claims for property damage, personal injury or bodily injury or death, whether or not involving damage to the Project or the Site, that arise out of or result from:

(i) the use of Hazardous Materials by Contractor or any of its Subcontractors in connection with the performance of the Work, which use includes the storage, transportation, processing or disposal of such Hazardous Materials by Contractor or any of its Subcontractors, whether lawful or unlawful;

(ii) any Release in connection with the performance of the Work by Contractor or any of its Subcontractors (except as provided in Section 24.2(e)); or

(iii) any enforcement or compliance proceeding commenced by or in the name of any Governmental Authority because of an alleged, threatened or actual violation of any Applicable Law by Contractor or any of its Subcontractors with respect to Hazardous Materials in connection with the performance of the Work.

(p) ***; and

(q) all Losses incurred by or payments made by Owner that are the Contractor's responsibility under Section 3.34.

24.2 Owner Indemnity. Owner shall indemnify, hold harmless and defend Contractor and all Contractor Parties from and against the following:

(a) all Losses arising from third-party claims for property damage, personal injury or bodily injury or death to the extent caused by any negligent, willful, reckless or otherwise tortious act or omission (including strict liability) during the performance by Owner or any Affiliate, or anyone directly or indirectly employed by any of them, or anyone for whose acts such Person may be liable, of their obligations or from a failure to perform any of their obligations under this Agreement;

(b) all Losses arising from third-party claims, including claims for property damage, personal injury or bodily injury or death that directly or indirectly arise out of or result from the failure of Owner to comply with the terms and conditions of Applicable Laws;

(c) all Losses arising from claims by any Governmental Authority that directly or indirectly arise out of or result from the failure of Owner to pay, as and when due, all Owner Taxes for which Owner is obligated to pay pursuant to the terms of this Agreement;

(d) all Losses that directly arise out of or result from employers' liability or workers' compensation claims filed by any employees or agents of Owner, regardless of negligence of any Contractor Party or Subcontractor contributing to such Losses;

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(e) all Losses, including claims for property damage, personal injury or bodily injury or death that directly or indirectly arise out of or result from:

(i) the presence or existence of Hazardous Materials at the Site brought onto or generated at the Site by Owner after the Effective Date; or

(ii) any Release by Owner or its Affiliates, where such Hazardous Materials were brought onto the Site by Contractor or any Subcontractor in accordance with the terms of this Agreement and all Applicable Laws;

(f) any and all fines, penalties or assessments issued by any Governmental Authority that Contractor may incur as a result of executing any applications to any such Governmental Authority at Owner's request; and

(g) all fines or penalties issued by, and other similar amounts payable to, any Governmental Authority that arise out of or result from the failure of Owner, or any of its contractors, agents or employees, to comply with any Owner Acquired Permit, except where such non-compliance is excused pursuant to the terms of this Agreement.

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ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT (Antelope Valley Solar Project 308.97 MW at the Delivery Point)