Definitions from Purchase and Sale Agreement
THIS PURCHASE AND SALE AGREEMENT (the "Agreement"), dated as of March 31, 2016 (the "Execution Date"), by and among First Solar Asset Management, LLC, a Delaware limited liability company ("Seller"), 8point3 Operating Company, LLC, a Delaware limited liability company ("Purchaser"), and, solely for purposes of agreeing to its obligations set forth in Section 6.07, First Solar, Inc., a Delaware corporation ("Seller Guarantor" and together with Seller and Purchaser, each a "Party" and collectively, the "Parties"). Capitalized terms used herein shall have the meanings set forth in Article I hereof.
Definitions. In this Agreement (including the Preamble and Recitals hereof), the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and the plural forms of the terms defined): "8point3 Entities" means the Partnership and its Subsidiaries. "8point3 OpCo Holdings" means 8point3 OpCo Holdings, LLC, a Delaware limited liability company. "Acquired Assets" has the meaning set forth in Section 3.11(a). "Acquired Companies" means the Company, Kingbird Holdings and the Project Companies. "Action" means any action, notice, claim, suit, arbitration, investigation, information, audit, request or proceeding by or before any arbitrator, court, or other Governmental Entity. "Affiliate" means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. As used herein, the term "control" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise. Notwithstanding anything in the foregoing to the contrary, for purposes of this Agreement, Seller and its Affiliates will not be deemed to be Affiliates of the 8point3 Entities hereunder, and vice versa. "Agreement" has the meaning set forth in the Preamble. "Aggregate Cost" means an amount equal to the sum of the Purchase Price and the Contribution. "Amended and Restated Omnibus Agreement" means that certain Amended and Restated Omnibus Agreement, among the Purchaser, the Partnership, the General Partner, Holdings, First Solar and SunPower, in the form to be reasonably agreed by the parties thereto, which adds the Projects to the obligations set forth in Article III of the Omnibus Agreement. "Assignment and Assumption Agreement" means that certain Assignment and Assumption Agreement, between Seller and 8point3 OpCo Holdings, to be entered into at the Closing, substantially in the form of Exhibit A hereto. "Balance Sheet" has the meaning set forth in Section 3.08(a). "Board of Directors" has the meaning set forth in the Recitals. "Business" means the business of the Acquired Companies on the Execution Date. "Business Day" means Monday through Friday of each week, except that a legal holiday recognized as such by the government of the United States of America or the State of New York shall not be regarded as a Business Day. "Cash Collateral Credit Support" means the credit support described in item 8 on Schedule 3.24. "Cash Collateral Payment" has the meaning set forth in Section 2.01(c). "Cash Grant" means any payment for specified energy property in lieu of tax credits under Section 1603 of Division B of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, as amended, or any successor provision. "Charter Documents" means, with respect to any Person, all charter, organizational and other documents by which such Person (other than an individual) establishes its legal existence or which govern its internal affairs, and shall include: (a) in respect of a corporation, its certificate or articles of incorporation or association and its by-laws; (b) in respect of a general partnership, its statement of partnership existence, if any, and its partnership agreement; (c) in respect of a limited partnership, its certificate of limited partnership and its partnership agreement; and (d) in respect of a limited liability company, its certificate of formation and operating or limited liability company agreement. "Closing" has the meaning set forth in Section 2.02. "Code" means the Internal Revenue Code of 1986, as amended and in effect from time to time. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of any successor law. "Commercial Operation Date" means the date on which each of the Projects has achieved substantial completion or similar milestone (including, for example, block or phase completion for each block or phase of either Project) under each construction contract for the construction of the Projects and has achieved commercial operation or similar milestone under each interconnection agreement and each power purchase agreement, lease or hedging agreement pursuant to which either Project delivers or transmits Electricity from such Project. "Company" has the meaning set forth in the Recitals. "Company Interests" has the meaning set forth in the Recitals. "Conflicts Committee" has the meaning set forth in the Recitals. "Consent" means a consent, approval, exemption, waiver, clearance, authorization, filing, registration or notification, including a consent, notification or waiver as may be required by any Person to acquire, own, lease or occupy land. "Contract" means any contract, agreement, license, guarantee, purchase order, sales order, lease (including leases of r