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HomeMy WebLinkAboutR34- Economic Development i i CITY OF SAN BERNARDINO ORIGINAL ECONOMIC DEVELOPMENT AGENCY FROM: Emil A.Marzullo SUBJECT: Solar Power Purchase Agreement, Guaranty Interim Executive Director Agreement and a Photovoltaic System Site Lease Agreement and funding the installation of a Photovoltaic Solar Power System by SPG DATE: August 27,2009 Solar on the Agency-owned Building at 201 North"E"Street Synopsis of Previous Commission/Council/Committee Action(s): On July 23,2009,Redevelopment Committee Members Johnson,Baxter and Brinker unanimously voted to recommend that the Mayor and Common Council and/or the Community Development Commission consider this action for approval. - --imm--------------------------- -- --- - ----- Recommended Motion(s): (Community Development Commission) Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing the execution of a Solar Power Purchase Agreement, Guaranty Agreement and a Photovoltaic System Site Lease Agreement for certain building areas and authorizing the grant of$1,400,000 to the SCRIP, Inc., a non-profit corporation,for the financing, acquisition and installation of a photovoltaic solar power system on the Redevelopment Agency of the City of San Bernardino-owned building located at 201 North"E"Street Contact Person(s): Brian Turnbull Phone: (909)663-1044 Project Area(s): Central City Projects Ward(s): 1"Ward Supporting Data Attached: Q Staff ReportOResolution(s)OAgreement(s)/Contract(s)❑Map(s)❑Letter(s) Funding Requirements: Amount: $ $1,400,000 Source: Tax Increment/CMB Export Loan Proceeds Budget Authority: 2009-2010 Budget Signature: Fiscal Review4niAdmim`sha 7 Emil A.Mariano, nter xecutive Director Jes ve Services Director Commission/Council Notes: P...S��� �� P\Agendes\Comm Dee Commission\CDC 200MMS-0 SCRIP NO Profit Corpor"ion Power Poduse Agreement SR.doe COMMISSION MEETING AGENDA Meeting Date: 09/08/2009 Agenda Item Number: -93q- ECONOMIC DEVELOPMENT AGENCY STAFF REPORT SOLAR POWER PURCHASE AGREEMENT,GUARANTY AGREEMENT AND A PHOTOVOLTAIC SYSTEM SITE LEASE AGREEMENT AND FUNDING THE INSTALLATION OF A PHOTOVOLTAIC SOLAR POWER SYSTEM BY SPG SOLAR ON THE AGENCY-OWNED BUILDING AT 201 NORTH"E" STREET BACKGROUND: The Redevelopment Agency of the City of San Bernardino ("Agency") is joining the major shift to renewable energy as are many other communities within the State. At both the State and Federal level, recently enacted laws call for significant reductions in greenhouse gas emissions and improvements in energy efficiency. In California, Assembly Bill 32 mandates a reduction in greenhouse gas emissions to 1990 levels by the year 2020. In addition, the State has a goal of obtaining 20% of its electricity from renewable sources by 2010. On the national level, the Strengthening Federal Environmental Energy and Transportation Management Executive Order, signed by President Bush in 2007, mandates federal agencies improve energy efficiency and reduce greenhouse gas emissions by 30%by 2015. In addition, the renewable energy industry is expected to produce 4.2 million new environmentally friendly "green"jobs over the next three decades according to a study by the U.S. Conference of Mayors. Currently, 750,000 people work in green jobs. However, that is less than 1/2% of total employment. By 2038, another 4.2 million green jobs are expected to be added, accounting for 10% of new job growth over the next 30 years. This job growth will not be realized without an aggressive shift away from traditional fossil fuels toward alternative energy and a significant improvement in energy efficiency. CURRENT ISSUE: In an effort to join the shift to renewable energy, the Agency has enlisted the assistance of its Community Development Block Grant ("CDBG") consultant and financial adviser, National Development Council ("NDC"), to assist in the installation and financing of a photovoltaic solar power system ("Project') on the roof of the Agency-owned building located at 201 North "E" Street, San Bernardino, California. As an alternative to the complex structure of the proposed financing, the Agency could simply pay cash for 100% of the Project costs as most governmental agencies have done in the past. The proposed tax credit element of this financing is typically not available to both non-profit corporations and governmental entities that are exempt from taxation. However, through the structure as outlined in the attached chart, it is possible for the Agency through indirect participation in a series of limited liability companies to have the benefits of the Federal Tax Credits flow directly through to the Agency. Financial Incentives of Proposed Structure: NDC has created an equity fund backed by investment partners to promote the construction of renewable energy generation systems. The NDC Program will allow the Agency to considerably lower the cost of the system by taking advantage of the Federal 30% solar tax credit and a State solar rebate under the California Solar Initiative. PlAgendasWommD CommissionTDC2009I0 &W SCRIP Non-Profit Corotation Power PucheseAgreement SRdoc COMMISSION MEETING AGENDA Meeting Date: 09/08/2009 Economic Development Agency Staff Report Solar Project-201 North "E"Street Building Page 2 Historically, there have been significant barriers for entry for non-profit organizations to purchase renewable energy systems. Besides the general lack of funds for large capital expenditures, they have been unable to take advantage of the investment tax credit and the accelerated depreciation. This new Program will allow the Agency to go green without paying for the 100% of system costs upon acquisition and installation. There is an initial down payment followed by a fixed monthly Power Purchase Agreement ("PPA") payment to the tax credit investor, Greystone Renewable Energy 2008-A, LLC. After five years, there will be a purchase option of$1.00 allowing the Agency to take full ownership of the system. There are no other balloon payments or end of term fees or premiums to thus terminate the contractual arrangements at the end of the tax credit investment period. The tax credit financing is secured solely against the equipment and not against the real estate of the Agency-owned building. This Project allows the Agency to lock in at the current cost for electricity for the duration of the Project. The first year utility savings are estimated at $111,316 with 25-year savings estimated at$3,721,500. NDC, in conjunction with Agency Staff, solicited proposals for the installation of the Photovoltaic Solar Power System. SPG Solar, based in Oceanside, was selected for the installation and maintenance of the system, and RDA Solar I, LLC, will be the parry entering into the installation contract with SPG Solar. The Project structure does not require the contract with SPG Solar to be approved by the Agency. The Project will also include the construction of a new roof on the Agency-owned building and the required preparatory work necessary to accommodate the installation of the Photovoltaic Solar Power System. Agency Staff intends to utilize this financing structure for installation of similar photovoltaic solar systems on other Agency- and City-owned buildings in the City. After the completion of this initial solar financing Project for the 201 North "E" Street Building, the Agency will be reaching out to local vendors and contractors as potential participants to obtain local businesses in subsequent financings after this model structure has been developed and completed. Three agreements must be approved by the Community Development Commission of the City of San Bernardino ("Commission") for execution by the Agency to accomplish this financing. The required agreements include the following which are attached as Exhibits to the authorizing Resolution: (i) Solar Power Purchase Agreement, (ii) Photovoltaic System Site Lease Agreement for the roof areas of the 201 North "E" Street Building, and (iii) a Guaranty Agreement. In addition, there are numerous other documents that will be entered into by the other parties to the financing transaction as noted on the attached financing structure chart. See the discussion below as to the names and roles of the other Agency related entities participating in this Project financing to enable the Agency to receive the benefits of the Federal Tax Credits. Project Costs: The Project is estimated to cost $2,429,856 including a$307,155 developer fee payable annually over a 5- year period to SCRIP, LLC, as the Developer. The Greystone investor will fund $755,833 (approximately 31% of the Project) in return for the 30% Federal renewable energy tax credits. This tax credit investor exits the transaction after year five and the ownership of the system reverts to the Agency at that time. The Agency contribution will be $1,366,868 (approximately 69% of the Project costs). In addition, the Agency through the SCRIP, LLC, will receive a developer fee of$307,155 payable over five years. The Agency will be making a grant contribution to SCRIP, non-profit corporation, as the Lender which will in turn make an equity contribution of $31,868 to SCRIP, LLC, as the Project Owner and a loan for PAAgMasTommD Commission\CDC2009� 8-0 SCRIP Non-Profit Co ration Power PuchawAgeememSRAoc COMMISSION MEETING AGENDA Meeting Date: 09/08/2009 Economic Development Agency Staff Report Solar Project- 201 North "E"Street Building Page 3 $1,355,000 to RDA Solar I, LLC, of which SCRIP, LLC, is a 51% owner and the managing member. Following is a summary of the financial terms: Proiect Costs Net Cost to EDA Developer Fee $ 307,155 Total Cost $2,429,856 Tax Credits 755,833 Tax Credits (755,833) Equity 31,868 Developer Fee 30( 7.155) Loan 1,335,000 et Cost TOTAL Costs $2,429,856 — The SCRIP, non-profit corporation, was reactivated a few years ago in connection with the sale of property that was owned by this non-profit under the former name of "San Bernardino Economic Development Council", non-profit corporation, for the West Side Shopping Center at 5a' Street and Mt. Vernon Avenue. Since the time of the reactivation of this non-profit, the name has been changed to "SCRIP" which is an acronym for "Sustainable Communities Rehivestment Partnership." SCRIP will operate as an extension of the Agency activities to participate in transactions such as the solar project where several roles in the structure of the financing cannot be held by governmental entities. Additionally, a limited liability company known as SCRIP, LLC, has been formed that is wholly owned and controlled by the Agency through the SCRIP, non-Profit,to have the role as the Developer and to also be a part owner of and managing member of both RDA Solar I, LLC, the Owner of the Project, and Master Tenant 2008-13, LLC, the lessee of the solar power system. See the attached outline of the roles of the various Agency controlled entities and the structural outline chart. In addition, an enormous benefit of solar power is its impact on air quality and other aspects of the environment. According to the United States Environmental Protection Agency ("EPA"), electricity generation is the dominant industrial source of air emissions in the United States today. Fossil fuel-fired power plants are responsible for 67% of the nation's sulfur dioxide (SO2) emissions, 23% of nitrogen oxide (NOx) emissions, and 40%of man made carbon dioxide (CO2) emissions. These emissions can lead to smog, acid rain and haze. In addition, these power plant emissions increase the risk of climate change and global warming. Using Southern California Edison's ("SCE") average generation mix, the proposed 245 kW photovoltaic system will help contribute to a cleaner, less-polluted environment in California by off-setting electrical generation by conventional fossil-fuel sources. The EPA has calculated that over its 25-year design life, this Project will off-set the emission of more than 5,000 tons of dangerous pollutants, such as NOx, SO', and CO2. This Project reduces carbon dioxide emissions equal to removing 900 cars from our congested highways. ENVIRONMENTAL IMPACT: Approval of this Solar Power Purchase Agreement, Guaranty Agreement and Photovoltaic System Site Lease Agreement and installation of the photovoltaic solar power system has no environmental impact under the California Environmental Quality Act("CEQA') Guidelines. ------- — -------------------- -------------------------- P:Agendas\CommDevCommission\CDC2009\OAO&09SCRBNOmProftCorymrtionPO rPuchaxAgeementSR.doc COMMISSION MEETING AGENDA Meeting Date: 09/08/2009 .---a_ ,.__ ,'.. __. DVJ Economic Development Agency Staff Report Solar Project-201 North "E"Street Building Page 4 FISCAL IMPACT: The total cost of the 245 kW photovoltaic solar power system to be installed on the roof of the Agency's building is $2,429,856. The Agency will provide a $1,366,868 down payment and make $70,000 annual debt service payments under the Power Purchase Agreement for 5 years. The remaining cost is assumed by the equity investors through the Federal Solar Tax Credits. The Agency will receive the benefits of the State Solar Rebate. It is proposed that the Agency initially use tax increment revenues to be replaced with a CMB Export loan to provide the financing for this Project. This Project will have no fiscal impact on the City's General Fund. RECOMMENDATION: That the Community Development Commission adopt the attached Resolution. Emil A. Marzullo, Interim Executive Director --- --------------------------- — PAASendu\Comm Dev Commission\CDC 20 \O9-0 SCRIP Non-Profit CotPmmion PO %chm Agreement SRdoc COMMISSION MEETING AGENDA Meeting Date: 09/08///2009 / San Bernardino EDA Solar Project Organizational Chart LENDER $1.4M CDC/Agency SCRIP Non- Profit Equity $31,868 Loan DEVELOPER INVESTOR Agreement Dev. $1.3M SCRIP, LLC Fee Greystone (SCRIP N-P Renewable 49%MM; Energy Fund NDC-entity 51%) 2008-A, LLC Equity $30,868 Equity $1,000 OWNER TENANT BUILDING RDA Solar I, Master Tenant OWNER LLC 2008-13, LLC (SCRIP,LLC (Greystone Agency 51%;Master Renewable Energy Tenant 2008-13, Fund 2008A,LLC LLC 49%) 99.99%; SCRIP, LLC 0.01%) CONTRACTOR $1,945,000 Contract for Solar Panels and installation executed by RDA Solar I, LLC,with SPG Solar P:\AgeM \Agenda Attach nts�xhibitsU00 M-08-09 Photowllaic Sold Pmj=Organizational Ch=.doc 1 RESOLUTION NO. COPY 2 3 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND 4 AUTHORIZING THE EXECUTION OF A SOLAR POWER PURCHASE AGREEMENT, GUARANTY AGREEMENT AND A PHOTOVOLTAIC 5 SYSTEM SITE LEASE AGREEMENT FOR CERTAIN BUILDING AREAS 6 AND AUTHORIZING THE GRANT OF $1,400,000 TO THE SCRIP, INC., A NON-PROFIT CORPORATION, FOR THE FINANCING, ACQUISITION 7 AND INSTALLATION OF A PHOTOVOLTAIC SOLAR POWER SYSTEM ON THE REDEVELOPMENT AGENCY OF THE CITY OF SAN 8 BERNARDINO-OWNED BUILDING LOCATED AT 201 NORTH "E" 9 STREET 10 WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") is a 11 community redevelopment agency duly created, established and authorized to transact business and 12 exercise its powers, all under and pursuant to the California Community Redevelopment Law (the 13 "CRL"), codified under Division 24, Part 1 of the California Health and Safety Code commencing at 14 Section 33000, et seq.; and 15 WHEREAS, the Agency recognizes the financial and environmental benefits to acquire and 16 install a photovoltaic solar power system on the Agency building roof for the property located at 17 201 North"E" Street(the "Project'); and 18 WHEREAS, SCRIP, Inc., a non-profit corporation ("SCRIP"), is controlled by the Agency 19 and functions as an extension of the governmental and redevelopment activities of the Agency and 20 will be become the lender for the Project with the funds to be granted to SCRIP pursuant to this 21 Resolution and will cause to be formed one or more limited liability companies to thus assume 22 additional roles in the financing structure to provide for the Federal Solar Tax Credits as referenced 23 below; and 24 WHEREAS, the Agency anticipates a reduction in operating expenses due to reduced utility 25 costs of approximately $3,721,500 over the 25-year life of the Project; and 26 WHEREAS, the Agency will use the installation of a photovoltaic solar power system as a 27 demonstration project for other Agency- and City-owned facilities, as well as other public and 28 private facilities and buildings within the City; and P.UgenA sVt lutionsRewlutionst2M0 N9-0 SCR@ Non.Pmfit Corpe ion Power Pm Ag mmt CDC Reno dm t 1 WHEREAS, the Agency has structured the financing of the Project to access the 30% 2 Federal Solar Tax Credit reducing the Agency's project cost by $755,833. 3 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE 4 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS 5 FOLLOWS: 6 Section 1. The Community Development Commission of the City of San Bernardino 7 ("Commission") hereby approves the transfer of $1,400,000 of Agency tax increment revenues to 8 the SCRIP, Inc., a Non-profit corporation, for the purposes of funding a loan and grant of equity for 9 the Project on behalf of the Agency and to cause to be formed one or more limited liability 10 companies that will be controlled in whole or in part by SCRIP as participants in the financing of 11 the Project to establish the taxable basis for the benefit of the Agency to thus provide for the receipt 12 of the anticipated funding from the Federal Solar Tax Credits. The Commission hereby authorizes 13 the Interim Executive Director to execute a Solar Power Purchase Agreement, Guaranty Agreement 14 and a Photovoltaic System Site Lease Agreement, as such agreements are attached to this Resolution 15 as Exhibits "A", "B" and "C", on behalf of the Agency together with such technical and conforming 16 changes as may be recommended by the Interim Executive Director of the Agency and approved by 17 the Agency Counsel. 18 Section 2. This Resolution shall take effect from and after its date of adoption by this 19 Commission. 20 21 22 23 24 25 26 27 28 P.Wgndas\Rmlutiona�lmiotuUOG%09 S0 SCRIP NonPmfit Corporation Pow Purchm Agre mem CDC Reno doc I 1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND 2 AUTHORIZING THE EXECUTION OF A SOLAR POWER PURCHASE 3 AGREEMENT, GUARANTY AGREEMENT AND A PHOTOVOLTAIC SYSTEM SITE LEASE AGREEMENT FOR CERTAIN BUILDING AREAS 4 AND AUTHORIZING THE GRANT OF $1,400,000 TO THE SCRIP, INC., A NON-PROFIT CORPORATION, FOR THE FINANCING, ACQUISITION 5 AND INSTALLATION OF A PHOTOVOLTAIC SOLAR POWER SYSTEM ON THE REDEVELOPMENT AGENCY OF THE CITY OF SAN 6 BERNARDINO-OWNED BUILDING LOCATED AT 201 NORTH "E" 7 STREET 8 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community 9 Development Commission of the City of San Bernardino at a meeting 10 thereof, held on the day of 2009, by the following vote to wit: 11 Commission Members: Ayes Nays Abstain Absent 12 ESTRADA 13 BAXTER 14 BRINKER _ 15 SHORETT _ 16 KELLEY 17 JOHNSON MC CAMMACK 18 19 20 Secretary 21 The foregoing Resolution is hereby approved this day of 2009. 22 23 Patrick J. Morris, Chairperson 24 Community Development Commission 25 of the City of San Bernardino 26 Approved as to Form: 27 By. 28 Agency Niinsel P gendu%Retoluuom\RewlutioreUIW 06-09 SCRB Non-Profit CoryorRwn Power P haze Agreement CDC Rew dm ODRAFT - 08-25-2009 SOLAR POWER PURCHASE AGREEMENT between RDA SOLAR I, LLC and REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO September 8t", 2009 PkF.; DRAFT— 08-25-2009 SOLAR POWER PURCHASE AGREEMENT This SOLAR POWER PURCHASE AGREEMENT (the "Agreement') is made and entered into as of September 8t , 2009 (the "Effective Date"), between RDA SOLAR I, LLC, a California limited liability company ("Provider'), and REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic, established and existing pursuant to California Heath & Safety Code Section 33000, et seq., ("Host"; and, together with Provider, each, a"Part 'and together, the "Parties"). WITNESSETH: WHEREAS, Host owns the Premises (as hereafter defined); WHEREAS, Host desires that Provider install and operate a solar photovoltaic system at the Premises for the purpose of providing Solar Power (as hereafter defined), and Provider is willing to undertake to do the same; WHEREAS, Provider desires to sell, and Host desires to purchase, such Solar Power at the Premises,pursuant to the terms and conditions set forth herein; and NOW THEREFORE, in consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. DEFINITIONS. 1.1 Definitions. In addition to other terms specifically defined elsewhere in this Agreement, where capitalized, the following words and phrases shall be defined as follows: "Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such first Person. For the purposes of this definition, "control" and its derivatives mean, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or otherwise. "Control" may be deemed to exist notwithstanding that a Person owns or holds, directly or indirectly, less than 50% of the beneficial equity interest in another Person. "Agreement"has the meaning set forth in the preamble to this Agreement. "Applicable Law" means, with respect to any Person, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, I P.Agendas\Agenda Asuchments\Apnda Atuchmen&Agenda ArtuhmentsAgrmts-Amend 2009\0 S-W Photovoltaic Solar Power Purchase Ageement Dra dm DRAFT— 08-25-2009 Or certificate, holding, injunction, registration, license, franchise, permit, authorization, guideline, Governmental Approval, consent or requirement of any Governmental Authority having jurisdiction over such Person or its property, enforceable at law or in equity, including the interpretation and administration thereof by such Governmental Authority. "Business Day" means any day other than Saturday, Sunday or any other day on which banking institutions in New York, New York are required or authorized by Applicable Law to be closed for business. "Commercial Operation Date" has the meaning set forth in Section 3.3(c) of this Agreement. "Completion Notice"has the meaning set forth in Section 3.3(b) of this Agreement. "Confidential Information" has the meaning set forth in Section 15.1 of this Agreement. "Contract Price"has the meaning set forth in Section 6.1 of this Agreement. "Effective Date"has the meaning set forth in the preamble to this Agreement. "Emergency Condition means an imminent threat requiring immediate action to prevent or mitigate the loss or impairment of life, health, property or essential public services which is directly related to the System and does not originate from and is not caused by the Local Electric Utility. "Environmental Attributes" has the meaning set forth in Section 5.2 of this Agreement. "Expiration Date"has the meaning set forth in Section 2.1 of this Agreement. "Fair Market Value" means, with respect to any tangible asset or service, the price that would be negotiated in an arm's-length, free market transaction, for cash, between an informed, willing seller and an informed, willing buyer, neither of whom is under compulsion to complete the transaction. Fair Market Value of the System will be determined pursuant to Section 2.3. "Force Majeure Event"has the meaning set forth in Section 10.1 of this Agreement. "Governmental Approval"means any approval, consent, franchise, permit, certificate, resolution, concession, license, or authorization issued by or on behalf of any applicable Governmental Authority. 2 P:Ug<ndasNgenEe AnachmentiWgemla Anachm<msWgeMa Anaehments'Ag is-Amei 3009\09-0 Phaovoltvc Solar PowerNrcha AgmmmD doc DRAFT— 08-25-2009 "Governmental Authority" means any federal, state, regional, county, town, city, or municipal government, whether domestic or foreign, or any department, agency, bureau, or other administrative, regulatory or judicial body of any such government. "Host"has the meaning set forth in the preamble to this Agreement. "Host Default" has the meaning set forth in Section 11.2(a) of this Agreement. "Host Indemnified Parties" has the meaning set forth in Section 16.1 of this Agreement. "Indemnified Part y"has the meaning set forth in Section 163(a) of this Agreement. "Indemnified Persons" means the Host Indemnified Parties or the Provider Indemnified Parties, as the context requires. "Indemnifying Party"has the meaning set forth in Section 16.3(a)of this Agreement. "Installer" SPG Solar, Inc. a California corporation. "Installation Work" means the construction and installation of the System and the start-up, testing and acceptance (but not the operation and maintenance) thereof, all © performed by or for Provider at the Premises. "Invoice Date"has the meaning set forth in Section 6.2 of this Agreement. "Invoice Period"means the period between the current and next Invoice Date. "Lease"has the meaning set forth in Section 2.5(k)of this Agreement. "Lender"has the meaning set forth in Section 13.2 of this Agreement. "Liens"has the meaning set forth in Section 7.1(d) of this Agreement. "Local Electric Utility" means the local electric distribution owner and operator providing electric distribution and interconnection services to Host at the Premises. "Maximum Monthly Production" means the amounts described in Schedule 5 of Exhibit A. "Minimum Monthly Production" means the amounts described in Schedule 5 of Exhibit A. "Monitoring Equipment" has the meaning set forth in Section 3.5 of this Agreement. 3 P.Ugendn\Agenda Attachmews Ape Am hmnts�pnda Atu ntskA rmto- eM 3009b9-08-0 Phmovolwc Solar Power Nrch AUMM M D A dm DRAFT— 08-25-2009 "Notice of Claim"has the meaning set forth in Section 16.3(a)of this Agreement. "Option Price"has the meaning set forth in Section 23(a) of this Agreement. "lW" or"Parties"has the meaning set forth in the preamble to this Agreement. "Person" means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, firm, or other entity, or a Governmental Authority. "Premises" means the premises described in Schedule 1 of Exhibit A. "Provider"has the meaning set forth in the preamble to this Agreement. "Provider Default"has the meaning set forth in Section 11.1(a)of this Agreement. "Provider Indemnified Parties" has the meaning set forth in Section 16.2 of this Agreement. "Reiection Notice"has the meaning set forth in Section 3.3(b) of this Agreement. "Representatives"has the meaning set forth in Section 15.1 of this Agreement. "Solar Insolation" or "Insolation" means the amount of Mils per square meter falling on a particular location, as published by the National Renewable Energy Laboratory. "Solar Payment" has the meaning set forth in Section 6.1 of this Agreement. "Solar Power"means the supply of on-site electrical energy output from the System. "System" means the integrated assembly of photovoltaic panels, mounting assemblies, inverters, converters, metering, lighting fixtures, transformers, ballasts, disconnects, combiners, switches, wiring devices and wiring, more specifically described in Schedule 2 of Exhibit A and interconnected with the Local Electric Utility, owned by Provider and installed at the Premises. "System Acceptance Testing" has the meaning set forth in Section 33(a) of this Agreement. "System Installation Period" means the period from (and including) the date that Provider (or its subcontractors) commence physical installation of the System on the Premises to (but excluding)the Commercial Operation Date. 4 P.\Agendm\Agenda Anachments\ pg aAnachmen&Agenda Anachments\Ag Mmt eM 2009\09 48-09 Photovoltaic Salar Power Nrchw Aereemem DM.doc DRAFT — 08-25-2009 "System Operations" means the operation, maintenance and repair of the System performed by or for Provider during the Term, as more particularly described in Section 4.1. "System Test Requirements" has the meaning set forth in Section 33(b) of this Agreement. "Term" has the meaning set forth in Section 2.1 of this Agreement. 1.2 Interpretation. The captions or headings in this Agreement are strictly for convenience and shall not be considered in interpreting this Agreement. Words in this Agreement that import the singular connotation shall be interpreted as plural, and words that import the plural connotation shall be interpreted as singular, as the identity of the parties or objects referred to may require. The words "include", "includes", and "including" mean include, includes, and including "without limitation" and `without limitation by specification". The words "hereof', "herein", and "hereunder" and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement. Except as the context otherwise indicates, all references to "Exhibits", "Articles" and "Sections" refer to Exhibits, Articles and Sections of this Agreement. 2. TERM AND TERMINATION. 2.1 Term. The term (the "Term") of this Agreement shall commence on the Effective Date and shall continue for a period of ten (10) years after the Commercial Operation Date. The date on which this Agreement terminates is hereafter referred to as the "Expiration Date." 2.2 Substitution of Premises. If Host ceases to conduct business operations at and/or vacates the Premises prior to the Expiration Date, then Host shall have the option to provide Provider with a mutually agreeable substitute premises located within the same Local Electric Utility district as the terminated System or in a location with similar insolation and Local Electric Utility rates. If such a site is not immediately available, Host shall work with Provider in good faith to provide one when it becomes available or renegotiate a different site in a different territory. Host shall provide at least sixty (60) days' written notice prior to the date on which it desires to effect such substitution. In connection with such substitution, Host shall execute an amended agreement that shall have all of the same terms as this Agreement (including warranties) other than the "Effective Date" and "Term" of such amended agreement, the latter of which shall be the remainder of the Term of this Agreement, and the amended agreement shall be deemed to be a continuation of this Agreement without termination. Host shall also provide any new Host, owner, lessor, or mortgagee consents or releases required by Provider's lender in connection with the substitute s 5 P.Wgendas\Agm&AnachmentsUgenda Anachmm&Ager AnachmentsUgr tls end 2009`,09-08-09 Phmovoltmc Solar Pow rPurchase Agreemmt Dra doc DRAFT— 08-25-2009 Premises. Host shall pay all costs associated with relocation of the System including all costs and expenses incurred by or on behalf of Provider in connection with removal of the System from the existing Premises and installation and testing of the System at such substitute premises and all applicable interconnection fees and expenses at the substitute premises, as well as costs of new title search and other out of pocket expenses connected to preserving and refiling the security interest of Provider's lender in the System, with said costs not to exceed the costs as if System were installed at the original location. Provider shall remove or shall cause the removal of, the System from the vacated Premises prior to the termination of Host's ownership, lease, or rights to use such Premises. Provider will not be required to restore the Premises to its prior condition but shall leave the Premises in a reasonably neat order to the reasonable satisfaction of Host. 2.3 Purchase Option. (a) Price; Exercise. So long as no Host Default has occurred, Provider grants to Host an option to purchase the System on the Expiration Date for a purchase price (the "Option Price") equal to the greater of(i) $113,375, or(ii) the Fair Market Value of the System, as determined pursuant to this Section 2.3. Not less than sixty (60) days prior to the Expiration Date, Host may provide written notice to Provider of Host's intent to exercise its option to purchase the System. Upon receipt of OHost's notice, Provider shall specify the Option Price in writing, and Host shall then have a period of thirty (30) days after notification to confirm or retract its decision to exercise the purchase option. In the event Host confirms its exercise of the purchase option, (i) the Parties will promptly execute all documents necessary to (A) cause title to the System to pass to Host, free and clear of any Liens on the Expiration Date, and (B) assign all warranties for the System to Host, and (ii) Host will pay the Option Price to Provider, such payment to be made in accordance with any previous written instructions delivered to Host for payments under this Agreement. Thereafter, the System will be owned and operated by Host at its sole cost and expense. In the event Host retracts its exercise of, or does not timely confirm, the purchase option, the provisions of this Agreement shall be applicable as if this Section 2.3 were not included in this Agreement. (b) Fair Market Value. The Fair Market Value of the System shall be determined by the mutual agreement of Host and Provider; provided, however if Host and Provider cannot mutually agree to a Fair Market Value within ten (10) days of the need to determine Fair Market Value, then the Parties shall each select a nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry. Such appraisers shall select a third a nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry who shall act reasonably and in good faith to determine Fair Market Value and shall set forth such determination in a written opinion delivered i 6 P.Wpendai:Agenda Anachmemd.Agnda AnachmemsWgenda Aa hme., p to- .d 2009`:09-08-09 Photovaitdc Solar Power Pu¢hau A,...D,a d9 DRAFT — 08-25-2009 to the Parties. The valuation made by the appraiser shall be binding upon the Parties in the absence of fraud or manifest error. The costs of the appraisal shall be borne by the Parties equally. 2.4 Removal of System at Expiration. Upon the expiration or earlier termination of this Agreement according to its terms (provided Host does not exercise its purchase option pursuant to Section 2.3), Provider shall, at Provider's expense, remove, or cause the removal of, all of its tangible property comprising the System from the Premises on a mutually convenient date but in no case later than sixty (60) days after the Expiration Date. The Premises shall be returned to its original condition, except for System mounting pads or other support structures and ordinary wear and tear. For purposes of Provider's removal of the System, Host's covenants pursuant to Section 7.2 shall remain in effect until the date of actual removal of the System. Provider shall leave the Premises in neat and clean order to the reasonable satisfaction of Host. If Provider fails to remove or commence substantial efforts to remove the System by such agreed upon date, Host shall have the right, at its option, to remove the System to a public warehouse and restore the Premises to its original condition (other than System mounting pads or other support structures and ordinary wear and tear) at Provider's cost. 2.5 Conditions Precedent. The following are conditions of this Agreement that, if not met prior to commencement of the Installation Work on the System, will, at Provider's election, render this Agreement null,void and of no further force or effect. (a) Electrical Interconnection. There is a suitable electrical interconnection point of sufficient capacity to accommodate the System as designed located within 500 feet of the planned location of the System as described in Schedules 1 and 2 of Exhibit A. (b) Obstructions. For any underground placement of electrical cable or conduit,there are no rocks or other obstructions that would prevent ordinary trenching equipment to be used for the installation of underground electrical cable from providing a trench of sufficient depth to comply with National Electrical Code. (c) Site Conditions. There exist no other unknown site conditions or construction requirements that would materially increase the cost of Installation Work or would adversely affect the electricity production from the System as designed. (d) Subsidy/Rebate. A rebate or subsidy in an amount designated in Schedule 3 of Exhibit A is available to Provider from the state, local utility, or other source for the installation of the System and is reserved for the System as designed. 7 P.Agendes+Agenda Ann entsWgenda Anwhme s\Agenda Anwhmenes%AgrmtsA end 200 M\ 8-W Phmoroltale Solar Power Nn Agreament D,a d. DRAFT— 08-25-2009 (e) Tax Code. There is no material adverse change in the federal tax code that would adversely affect the economics of the installation for Provider and its investors. (f) Creditworthiness. There is no material adverse change that affects the creditworthiness of Host or the ability to obtain credit-committee approval of Lender or Provider's investors. (g) Ownership. Host has delivered (i) an Acknowledgement and Confirmation, in substantially the form of Exhibit B attached hereto, and (ii) a release or acknowledgment from any mortgagee of the Premises to establish the priority of Provider's Lender's security interest in the System. (h) Financing. Provider shall have received a commitment from Provider's Lender for financing of the System on terms and conditions reasonably satisfactory to Provider. (i) Subordinate Financing. Provider shall have received a commitment from Host for subordinate financing of the System on terms and conditions reasonably satisfactory to Provider. (j) Put Option. Provider and Host shall have executed an Option Agreement on terms and conditions reasonably satisfactory to Provider. (k) Lease. Provider and Host shall have entered into a lease agreement for the locations in which the System will be installed(the"Lease"). (1) Installment Contract. Provider and Installer shall have executed an installment contract on terms and conditions reasonably satisfactory to Provider and Installer shall have provided guaranties of its obligations under the installment contract and performance of the System on terms and conditions reasonably satisfactory to Provider. (m) Interconnection Agreement. Both Parties agree to the applicable Local Electric Utility interconnection agreement. In the event that either or both Parties do not agree to any terms or conditions in such utility interconnection agreement, Host and Provider shall work in good faith to address such terms and conditions in a separate agreement between the Parties. (n) Monitoring Agreement. A System monitoring agreement as more fully described in Section 3.5 hereof shall have been entered into on terms and conditions reasonably satisfactory to Provider. 8 P'AgeM \AgcM Anachments\Ag<nde Attwhmems\Agmda Atmchmems'AgrmtsAmend 200 NASA Phot...haic Solar Power Purchau Agreement Dra do DRAFT — 08-25-2009 (o) Solar Access Easements. Such solar access easements as more fully described in Section 3.4 hereof as desired by Provider have been entered into on terms and conditions reasonably satisfactory to Provider. (p) Opinions. Such opinions of Host as Provider reasonably requests shall have been provided in the form reasonably satisfactory to Provider. (q) Installation Site Structural Integriri. The structural integrity of the installation sites, as is, are sufficient to accommodate the System. In making this determination, Host shall, at its sole cost and expense, hire or provide a structural engineer to verify and confirm each of the locations' abilities to support the System and Installation Work. If, in Host's reasonable judgment, such investigation reveals that the structural integrity of the locations are, as is, sufficient to accommodate the System, Host shall then provide Provider with a copy of all reports, studies and other documentation created with respect to said structural investigation. Provider shall have thirty (30) days to review and evaluate all reports, studies and confirm its intention to proceed with the Installation Work on the System. (r) Other. Such other documents as reasonably requested by Provider shall have been executed and/or furnished. 2.6 Right to Terminate this Agreement. At any time during the Term of this Agreement, if Provider (with Host's assistance to the extent necessary) is unable to reserve and receive a rebate or subsidy in an amount not less than the amount stated in Schedule 3 of Exhibit A, said rebate or subsidy being made available from the state, local utility or other source for the installation of the System as designed, Provider has the unilateral right to terminate this Agreement and, in the case where the Installation Work has been initiated or substantially completed, remove any and all System infrastructure or components pursuant to Section 2.4. 3. CONSTRUCTION INSTALLATION AND TESTING OF SYSTEM. 3.1 Installation Work. Pursuant to the Lease, Host will grant to Provider the right to use portions of the Premises upon which to locate the System. Provider will cause the System to be designed, engineered, installed and constructed substantially in accordance with the terms of this Agreement. Host shall have the right to review and approve all construction plans including engineering evaluations of the impact of the System on (i) the structural integrity and strength of the locations on the Premises in which the System is to be installed, and (ii) the then current Local Electric Utility's equipment and service. Provider shall request the Installer to perform the Installation Work at the Premises between the hours of 7:00 a.m. and 5:00 p.m., Monday through Friday, in a manner that minimizes inconvenience to and interference with Host's and 9 P'.W9.4 \Ape A,h.,WMenda Muhment.Ngenda M=c CnuWgrmtsAmend 3009\09 S8 Phd Jtaic Sole Power Porchm Agreemem DrWdoc DRAFT — 08-25-2009 Host's invitees' and customers' use of the Premises to the extent commercially practical. During installation of the System, Host shall permit Provider to post a sign or banner on or in front of Host's building. 3.2 Approvals; Permits. Host shall assist Provider in obtaining necessary approvals from the Local Electric Utility, including the submission of applications for interconnection of the System with the Local Electric Utility. During the tie-in to the electrical system, Host will shut down any electrical service to its buildings. (a) Changes and Additions Required by Local Electric Utility Not Directly Related to System. If the Local Electric Utility fails to approve the interconnection of the System or requires equipment in addition to that shown in Schedule 2 of Exhibit A and such equipment is not directly related to the System, Host, at its sole cost and expense, may make such changes and additions as necessary to meet the Local Electric Utility's requirements, provided however, that Host must, within thirty (30) days of the Local Electric Utility's failure to approve interconnection, notify Provider as to whether it will make such changes and additions. If Host declines to make the changes and additions or fails to notify Provider of its decision to make or not make the changes and additions within the thirty (30) day notification period, Provider may, at Provider's option, immediately terminate this Agreement. If Provider elects not to terminate this Agreement pursuant to this Section, Host shall assist Provider in obtaining approval for a modified System that will likely succeed in obtaining the Local Electric Utility's approval for interconnection. (b) Changes and Additions Required by Local Electric Utility Directly Related to System. If the Local Electric Utility fails to approve the interconnection of the System or requires equipment in addition to that shown in Schedule 2 of Exhibit A and such equipment is directly related to the System, Provider, at its sole cost and expense, may make such changes and additions as necessary to meet the Local Electric Utility's requirements and as reasonably approved by Host, provided, however, that Provider must, within thirty (30) days of the Local Electric Utility's failure to approve interconnection, notify Host as to whether it will make such changes and additions. If Provider declines to make the changes and additions or fails to notify Host of its decision to make or not make the changes and additions within the thirty (30) day notification period, Host may, at Host's option, immediately terminate this Agreement. If Host elects not to terminate this Agreement pursuant to this Section, Host shall assist Provider in obtaining approval for a modified System that will likely succeed in obtaining the Local Electric Utility's approval for interconnection. (c) Governmental Approvals. Host shall assist Provider in obtaining the necessary local Governmental Approvals,which may include provision by Host of electrical 10 P_,Agendai Agenda AnachmemsUgenda Anechmems%Agenda AnachmentsWA r tsA cnd 2009\09-08-09 Photovolwc Solar Power Purchase Agreement Dra dm DRAFT— 08-25-2009 drawings and structural drawings at Provider's sole cost and expense. Host shall ensure that the Premises is ready for municipal and utility inspection within 30- days of completion of the installation of the System. If any applicable Governmental Authority does not provide the necessary Governmental Approvals, Provider may, at Provider's option, immediately terminate this Agreement subsequent to such notification from such Governmental Authority that the application for permits have not been accepted or permits have been denied. Host, at its sole cost and expense, shall have the option to make necessary repairs or changes to the existing electrical structure of the Premises so that Premises are eligible for state subsidy or rebate funding. In the event Host decides not to make necessary changes or repairs to the existing electrical structure of the Premises and the System has been installed, Host shall at its sole discretion have the right to relocate the System to another Premises, subject to the same terms and conditions set forth in Section 2.2 (Substitution of Premises) or assist Provider and Installer in obtaining approval for a modified System that will likely succeed in obtaining the necessary Local Government Approvals. 3.3 System Acceptance Testing. (a) Testing. Provider shall conduct testing of the System ("System Acceptance Testing'). Provider shall notify Host not less than seven (7) days prior to the anticipated date of System Acceptance Testing. Host shall have the right, but not the obligation, to be present at and observe the System Acceptance Testing, at Host's sole cost. (b) Results. If the results of such System Acceptance Testing indicate that the System is capable of generating electric energy for four (4) continuous hours (the "System Test Requirements"), using such instruments and meters as have been installed for such purposes, and the System has been approved for interconnected operation by the Local Electric Utility, then Provider shall send a written notice to that effect to Host (a"Completion Notice"), accompanied by a copy of the results of the System Acceptance Testing. Host shall have fifteen (15) Business Days after its receipt of the Completion Notice to review the System Acceptance Testing results. If the System Acceptance Testing indicates that the System fails to meet the System Test Requirements and Host provides Provider with a detailed notice of such failure (a "Rejection Notice") within such fifteen (15) Business Day period, then Provider shall promptly remedy at Provider's cost the relevant specified failure and conduct new System Acceptance Testing until the System Acceptance Testing indicates that the System meets the System Test Requirements. In each such case, Provider shall send a new Completion Notice to Host with a copy of the results of the new System Acceptance Testing as provided above and the foregoing procedures shall be repeated. 11 P.WgendasNgerda AmchmmuWge�a Ana<hmmts Agenda Ana<hments`Agrmts-Amend 3009',0408A Photovoltaic Soiar Power Purch Agmm=t Draft dm DRAFT— 08-25-2009 .r �raa+ (c) Commercial Operation Date. Absent Provider's receipt of a timely Rejection Notice from Host pursuant to Section 3.3(b), the "Commercial Operation Date" shall be the fifteenth (15th) Business Day after the date of Host's receipt of the Completion Notice. 3.4 Solar Access Easement. Host will use reasonable efforts to secure a solar access easement for the System, and to prevent other buildings, structures or flora from overshadowing or otherwise blocking access of the sunlight to the System. 3.5 Internet Connection. Provider shall install a wireless monitoring system separate from any Host system in order to connect the System monitoring equipment ("Monitoring Equipment") to the necessary intranet and/or inteanet networks so that it is possible for Provider to remotely monitor the production by the System. 4. SYSTEM OPERATIONS. 4.1 Provider as Owner and Operator. The System will be owned and operated by or for Provider at its sole cost and expense. "System Operation" means all actions, including monitoring and maintaining the System, necessary for Provider to fulfill its covenants under Section 7.1. Any repair or maintenance of the System will be completed by or for Provider, at its sole cost and expense, for Provider's benefit as legal and beneficial owner of the System. 4.2 Malfunctions and Emergencies. (a) Malfunctions. Host and Provider each shall notify the other within twenty-four (24) hours following their discovery of any material malfunction in the operation of the System or of their discovery of an interruption in the supply of Solar Power. Provider and Host shall each designate personnel and establish procedures such that each Parry may provide notice of such conditions requiring Provider's repair or alteration at all times, twenty-four (24) hours per day, including weekends and holidays. Provider and Host each shall notify the other Party upon the discovery of an Emergency Condition in the System. (b) Emergencies. If an Emergency Condition exists, Provider shall promptly dispatch the appropriate personnel immediately to perform the necessary repairs or corrective action in an expeditious and safe manner. For routine and emergency repairs, Host shall contact Provider with contacts for each listed in attached Schedule 4 of Exhibit A. 12 P:`Agend.s genda AnachmentsWgenda Anachmen ta`Agenda Anachments`Ag t¢- end 2009',09-08-09 Photovoltvc Sour Power Porchm Agraement Draft d« DRAFT— 08-25-2009 4.3 Metering. (a) Maintenance and Testing. Provider shall install and maintain a utility grade kilowatt-hour (kWh) meter for the measurement of electrical energy provided by the System. Upon Host's written request, Provider shall furnish a copy of all technical specifications and accuracy calibrations for the meter and test the meter upon Host's request. (b) Adjustments. If testing of the metering equipment pursuant to Section 4.3(a) indicates that such equipment is in error by more than 2%, then Provider shall promptly repair or replace such equipment. Provider shall make a corresponding adjustment to the records of the amount of electrical energy provided by the System delivered based on such test results for (i) the actual period of time when such error caused inaccurate meter recordings, if that period can be determined to the mutual satisfaction of the Parties, or (ii) if such period cannot be so determined, then a period equal to one-half of the period from the later of the date of the last previous test confirming accurate metering or the date the meter was placed into service, but not to exceed two (2) years. 5. DELIVERY OF SOLAR POWER. 5.1 Purchase Requirement. Host agrees to purchase one hundred percent (100%) of the Solar Power of the System during the Term. Neither Party may claim that by this Agreement, Provider is an electric utility subject to regulation as an electric utility or subject to regulated electricity rates. Provider shall not claim to be providing electric utility services to Host. 5.2 Environmental Attributes, Etc. Host's purchase of Solar Power does not include Environmental Attributes or any other attributes of ownership of the System, except that renewable energy credits, green tags, tradable renewable credits and Green-e® credits may be purchased by Host on the Commercial Operation Date pursuant to a separate bill of sale. Except as provided in the foregoing sentence, Environmental Attributes shall be retained by Provider. For purposes of this Agreement, "Environmental Attributes" shall include carbon trading credits, renewable energy credits or certificates, emissions reduction credits, investment credits, production tax credits, emissions allowances, green tags, tradable renewable credits, and Green-e® products. To avoid any conflicts with fair trade rules regarding claims of solar or renewable energy use, Host, if engaged in commerce and/or trade, shall submit to Provider for approval any press releases regarding Host's use of solar or renewable energy and shall not submit for publication any such releases without the written approval of Provider. Approval shall not be unreasonably withheld, and Provider's review and approval shall be made in a timely manner to permit Host's timely publication. Host and Provider may by mutual written agreement set forth specific 13 R: pndas\AgeMa Anachments\Agenda Anuhmems�genda AnachmenuUgrm[s-AmeM 2009M-0"Photovoltaic Solar Power Purchase Agrtement Dmft doc DRAFT— 08-25-2009 statements that may be used by Host in any press releases that address Host's use of solar or renewable energy. 5.3 Title to System. Throughout the duration of this Agreement, Provider shall be the legal and beneficial owner of the System at all times, including all Environmental Attributes, other than the renewable energy credits, green tags, tradable renewable credits and Green-e® credits purchased by Host, and the System shall remain the personal property of Provider and shall not attach to or be deemed a part of, or fixture to, the Premises. The System shall at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code. Host covenants that it will use reasonable commercial efforts to place all parties having an interest in or lien upon the real property comprising the Premises on notice of the ownership of the System and the legal status or classification of the System as personal property. If there is any mortgage or fixture filing against the Premises which could reasonably be construed as prospectively attaching to the System as a fixture of the premises, Host shall provide a disclaimer or release from the lienholder. Host consents to the filing of a disclaimer of the System as a fixture of the Premises in the office where real estate records are customarily filed in the jurisdiction of the Premises and shall execute such acknowledgments and other evidences of Provider's ownership of the System as Provider may request from time to time, and pay the cost of the filing or recording of the same as the case may be whenever Provider deems desirable, and will do such other acts and things as Provider may reasonably request in order to effectuate fully the intent of this Section. 6. PRICE AND PAYMENT. 6.1 Consideration. Host shall pay to Provider a monthly payment (the "Solar Payment") for the Solar Power produced by the System during each month of the Term in the amount set forth on Schedule 5 of Exhibit A; provided, however, that in any month in which less the Minimum Monthly Production for such month as set forth in Schedule 5 of Exhibit A is delivered, the Solar Payment shall be reduced by$.14 cents per kWh delivered less than the Minimum Monthly Production for such month, and in any month in which more than the Maximum Monthly Production as set forth in Schedule 5 of Exhibit A is delivered, the Solar Payment shall be increased by $.14 cents per kWh delivered more than the Maximum Monthly Production for such month and provided further that any shortfall below the Minimum Monthly Production as set forth in Schedule 5 of Exhibit A that arises solely as a result of a Force Majeure Event shall not be taken into account for purposes of this sentence. The sum of all Solar Payments paid (and remaining to be paid) less any reductions or increases in accordance with the preceding sentence during the Term shall be the "Contract Price" under this Agreement. Except as may be otherwise expressly provided in this Agreement, no other fees or charges shall be due from Host to Provider. 14 P:Wgendas�geo&Attachments) gwa A whments4lgende An hm.M$V g u-AmeM 2009\09-08-09 Photovohwc Solar Power Purchm Ageement Draft dew DRAFT— 08-25-2009 6.2 Payment. Provider shall invoice Host on a monthly basis (each, an "Invoice Date"), commencing on the tenth day of the month to occur after the Commercial Operation Date, for the Solar Payment in respect of such Invoice Period. The first invoice shall include any production that occurred prior to the initial Invoice Date. The last invoice shall be pro rated, as necessary, to include production only through the Expiration Date of this Agreement. 6.3 Time of Payment. Host shall pay all amounts due hereunder within five (5)days after the applicable Invoice Date. 6.4 Method of Payment. Host shall make all payments under this Agreement by wire transfer to the account designated by Provider. All payments that are not paid when due (i) shall be accompanied by a late charge in the amount of five percent (5%) of the Solar Payment or $25, whichever is greater, and (ii) shall bear interest accruing from the date becoming past due until paid in full at a rate per annum equal to the lesser of(a) five percent (5%) and (b) the maximum rate allowed by Applicable Law, provided that Host has received five (5) days to cure such late payment. All payments made hereunder shall be made free and clear of any tax, levy, assessment, duties or other charges and not subject to reduction, withholding, set-off, or adjustment of any kind. Upon receipt of written direction and instructions from Provider and Provider's Lender, all payments to be made by Host to Provider under this Agreement shall be made directly to the Lender or its agent designated in a writing addressed to Host from time to time. 6.5 Payment Disputes. If a dispute arises with respect to any invoice submitted or any payment owed by one Party to the other Party hereunder, the Parties shall attempt to resolve such dispute amicably. During the time a dispute is pending, the disputing Party shall not be deemed in default under this Agreement and the Parties shall not suspend the performance of their respective obligations hereunder, including payment of undisputed amounts owed hereunder. 6.6 Put Reserve. Host shall establish a separate reserve account maintained at an FDIC insured banking institution approved by Provider for the purpose of securing its payment of the Solar Payments (the "Reserve Account"). On the first Business Day of each month commencing on January 1, 2010 and terminating on June 30, 2014, Provider shall deposit into the Reserve Account a monthly amount equal to $1,712. Host hereby assigns to Provider and grants a security interest in all of Host's right, title and interest in and to the Reserve Account and in and to (a) all books and records relating thereto, whether presently existing or hereafter created, (b) all of the existing and future proceeds of any of the foregoing, or any other disposition of the foregoing, including but not limited to, any interest payment or other distribution of cash or property in respect thereof; and (c) any existing and future rights incidental to the � ,,II ownership of any of the foregoing. Without Provider's specific prior written consent, 15 P.Ugendas�genda An.hmen&AgeMa An.hments�Agenda Art.hmen[sWgem[sAmeM 3009�Phq dwo S.I.Pow.Puenh.e Agrtemtms DreR.do DRAFT— 08-25-2009 .. which consent shall be granted in Provider's sole discretion, Host shall neither withdraw funds from the Reserve Account nor sell nor offer to sell nor otherwise transfer nor encumber any portion of the Reserve Account. Host will cause the banking institution at which the Reserve Account is held to execute and deliver an Account Control Agreement in the form approved by Provider for the purpose of, perfecting the security interest granted by Host to Provider herein. In the event that Provider exercises its right under that certain Put Option Agreement by and between Provider and Host dated as of the date hereof, Host may withdraw funds in the Reserve Account to satisfy its obligations thereunder. 7. GENERAL REPRESENTATIONS. 7.1 Provider's Representations. As a material inducement to Host's execution and delivery of this Agreement, Provider covenants and agrees to the following: (a) System Condition. Provider shall take all reasonable actions to ensure that the System is capable of providing Solar Power at a commercially reasonable continuous rate. (b) Governmental Approvals. While providing the Installation Work, Solar Power, and System Operations, Provider shall obtain and maintain and secure all Governmental Approvals, licenses, and permits required to be obtained and maintained and secured by Provider and to enable Provider to perform such obligations. Provider shall deliver copies of all Governmental Approvals obtained pursuant to this section to Host. (c) Health and Safety. Provider shall take all necessary and reasonable safety precautions with respect to providing the Installation Work, Solar Power, and System Operations that shall comply with all Applicable Laws pertaining to the health and safety of persons and real and personal property. Provider shall immediately report to Host any death, lost time injury, or property damage to Host's property that occurs on the Premises. (d) Liens. Provider shall not directly or indirectly cause, create, incur, assume or suffer to exist any mortgage, pledge, lien (including mechanics', labor or materialmen's lien), charge, security interest, encumbrance or claim of any nature ("Liens") on or with respect to the Premises or any interest therein, other than Liens on the System granted to Provider's Lender. Provider also shall pay promptly before a fine or penalty may attach to the Premises any taxes, charges or fees of whatever type of any relevant Governmental Authority, relating to any work performed hereunder by Provider or its agents and subcontractors on the Premises. If Provider breaches its obligations under this Section, it shall (i) immediately notify Host in writing, (ii) promptly cause such Lien to be 16 P.Uge.&,s genda Attazhment,USerda AtuchroeeorWMends 2009\09 48-09 Phd oltaic Solar Power Purchase Agreement DrO dm DRAFT— 08-25-2009 discharged and released of record without cost to Host, and (iii) defend and indemnify Host against all costs and expenses (including reasonable attorneys' fees and court costs at trial and on appeal) incurred in discharging and releasing such Lien. (e) No Infrin eg ment. The System and Provider's services hereunder, including the Installation Work, Solar Power and System Operations, shall not infringe any third party's intellectual property or other proprietary rights. (f) Timely Services. Provider will perform its obligations hereunder in a timely, professional and workmanlike manner in accordance with all Applicable Laws, regulations, rules and ordinances. (g) Consents and Approvals. Provider shall assist Host in obtaining, maintaining, and securing necessary approvals, permits, and authorizations related to the installation of the System by providing any authorizations needed for the above and signing applications for permits, local utility grid interconnection applications and rebate applications and processing. Provider shall ensure that any authorizations required of Provider are provided in a timely manner. To the extent that only Provider is authorized to obtain or issue any necessary approvals, permits, rebates or other financial incentives, Provider shall deliver to Host copies of said consents, approvals, permits, and authorizations relating to the performance of Provider's obligations and the rights granted by Provider hereunder and that are required by the terms, conditions or provisions of any restriction or any agreement or instrument to which Provider is a party or by which Provider is bound. 7.2 Host's Representations. As a material inducement to Provider's execution and delivery of the Agreement, Host covenants and agrees as follows: (a) Health and Safety. Host shall at all times maintain the Premises consistent with all Applicable Laws pertaining to the health and safety of persons and property. (b) Security. Host shall provide and take reasonable measures for security of the System, including commercially reasonable monitoring of the Premises' alarms. (c) Notice of Damage. Host shall promptly notify Provider of any matters it is aware of pertaining to any damage to or loss of the use of the System or that could reasonably be expected to adversely affect the System. (d) Liens. Host shall not directly or indirectly cause, create, incur, assume or suffer to exist any Liens on or with respect to the System or any interest therein. If Host breaches its obligations under this Section, it shall immediately notify Provider in 17 P.\Agendas\Agenda A chments\AgeMa A hments\Agenda A chments\Ag ?mt eM 2(109\09-08A Photovoltaic Solar Power Nrch Agreement D e dm DRAFT— 08-25-2009 writing, shall promptly cause such Lien to be discharged and released of record without cost to Provider, and shall indemnify Provider against all costs and expenses (including reasonable attorneys' fees and court costs at trial and on appeal) incurred in discharging and releasing such Lien. (e) Consents and Approvals. Host shall assist Provider in obtaining, maintaining, and securing necessary approvals, permits, and authorizations related to the installation of the System by providing any authorizations needed for the above and signing applications for permits, local utility grid interconnection applications and rebate applications and processing. Host shall ensure that any authorizations required of Host are provided in a timely manner. To the extent that only Host is authorized to obtain or issue any necessary approvals, permits, rebates or other financial incentives, Host shall deliver to Provider copies of said consents, approvals, permits, and authorizations relating to the performance of Host's obligations and the rights granted by Host hereunder and that are required by the terms, conditions or provisions of any restriction or any agreement or instrument to which Host is a parry or by which Host is bound. (f) Access to Premises. During the performance of the Installation Work, System Operations or removal of the System ,pursuant to Section 2.4, Article 10 or Section 11.2(b), Host shall provide Provider with access to the Premises as reasonably necessary to allow Provider to perform the Installation Work, System Operations and System removal, including ingress and egress rights to the Premises for Provider and its employees, contractors and sub-contractors and access to electrical panels and conduits to interconnect or disconnect the System with the Premises' electrical wiring. Host shall provide Provider and Installer with all reasonably necessary access to the Premises and System during the Term of this Agreement and for so long as needed after termination to remove the System pursuant to the applicable provisions herein. Host and its authorized representatives shall at all times have access to and the right to observe the i Installation Work or System removal but shall not interfere or handle any Provider equipment or the System without written authorization from Provider except in accordance with Section 11.1(c); provided, however, in the event of a material malfunction or emergency as specified in Section 4.2, Host shall be permitted to take those actions necessary to prevent injury as specified in Section 11.1(c). (g) Temporary Storage Space During Installation or Removal. Host shall use its best efforts to provide sufficient space for the temporary storage and staging of tools, materials and equipment and for the parking of construction crew vehicles and temporary construction trailers and facilities reasonably necessary during the Installation Work, System Operations or System removal, and access for rigging j P Wgendaz ger Anachments`Agenda Amchments'Agenda Anachmenn`Agmts-Amend 2009\N9 8-N Phwovolimc Solar Power Nrch Age mt Dre d« DRAFT— 08-25-2009 and material handling. Host shall provide Provider a reasonable area for construction laydown. (h) Financial Statements. During the Term of this Agreement, Host shall deliver to Provider Host's annual internally prepared financial statements within 15 days after each calendar year end during the term of the Loan. Host acknowledges that these financial statements may be provided to Provider's Lender if so required. 8. WARRANTIES. 8.1 Warranties Relating to Agreement Validity. In addition to any other representations and warranties contained in this Agreement, each Party represents and warrants to the other as of the Effective Date that: (a) Organization. It is duly organized and validly existing and in good standing in the jurisdiction of its organization. (b) Authori . It has the full right and authority to enter into, execute, deliver, and perform its obligations under this Agreement. (c) Approval. It has taken all requisite corporate or other action to approve the execution, delivery, and performance of this Agreement. (d) Enforceability. This Agreement constitutes its legal, valid and binding obligation enforceable against such Party in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws now or hereafter in effect relating to creditors' rights generally. (e) Liti ation. There is no litigation, action, proceeding or investigation pending or, to the best of its knowledge, threatened before any court or other Governmental Authority by, against, affecting or involving any of its business or assets that would affect its ability to carry out the transactions contemplated herein. (f) Conflicts. Its execution and performance of this Agreement and the transactions contemplated hereby do not constitute a breach of any term or provision of, or a default under, (i) any contract or agreement to which it or any of its Affiliates is a Party or by which it or any of its Affiliates or its or their property is bound, (ii) its organizational documents, or(iii)any Applicable Laws. 8.2 Requisite Standards. The System shall be installed with due care by qualified employees, representatives, agents or contractors of Provider and shall conform to applicable industry standards and practices and Applicable Law. If Provider fails to meet any of the foregoing standards, Provider shall perform at its own cost, and without additional charge to Host,the professional services necessary to correct effors 19 P: gend., Sena,A hmeotaWgeMa AtuchmentsUgeMa MuhroemsUgro ftsA oend 3oo9w9-o-09 Pho ovolulc solo Power wrtn Ag«mem D doe DRAFT — 08-25-2009 and omissions, including any necessary replacement of the System, that are caused by Provider's failure to comply with the above standard so that the System is capable of providing Solar Power at a reasonably continuous rate. 8.3 EXCLUSION OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 3.1 AND 7.1 AND THIS ARTICLE 8, THE INSTALLATION WORK, SYSTEM OPERATIONS, AND SOLAR POWER PROVIDED BY PROVIDER TO HOST PURSUANT TO THIS AGREEMENT SHALL BE "AS-IS WHERE-IS."NO OTHER WARRANTY TO HOST OR ANY OTHER PERSON, WHETHER EXPRESS, IMPLIED OR STATUTORY, IS MADE AS TO THE INSTALLATION, DESIGN, DESCRIPTION,QUALITY, MERCHANTABILITY, COMPLETENESS, USEFUL LIFE, FUTURE ECONOMIC VIABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE SYSTEM, THE SOLAR POWER OR ANY OTHER SERVICE PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY PROVIDER. 9. TAXES AND GOVERNMENTAL FEES. 9.1 Host Obligations. Host shall reimburse and pay for any taxes, fees or charges imposed or authorized by any Governmental Authority and paid by Provider due to ® Provider's sale of the Solar Power to Host (other than income taxes imposed upon Provider). Provider shall notify Host in writing with a detailed statement of such amounts, which shall be invoiced by Provider and payable by Host. Host shall timely report, make filings for, and pay any and all sales, use, income, gross receipts, or other taxes, and any and all franchise fees or similar fees assessed against it due to its purchase of the Solar Power. This Section 9.1 excludes taxes specified in Section 9.2. 9.2 Provider Obligations. Subject to Section 9.1 above, Provider shall be responsible for all income, gross receipts, ad valorem, personal property or real property or other similar taxes and any and all franchise fees or similar fees assessed against it due to its ownership of the System. If Host is assessed any taxes or fees related to the existence of the System on the Premises, Host shall immediately notify Provider. Host and Provider shall cooperate in contesting such assessment; provided, however that Host shall pay such taxes to avoid any penalties on such assessments subject to reimbursement by Provider. If, after resolution of the matter, a tax is imposed upon Host related to the improvement of real property by the existence of the System on the Premises, Provider shall reimburse Host for such tax. Provider shall not be obligated for any taxes payable by or assessed against Host based on or related to Host's overall income or revenues. 20 P:UgeiWassNgeMa Avchmeml�pale Attach .Un gen&ML,chmen[sUgmt .nd 3009\09 .09 Photovoltaic Solar Pma Pmchne Agrmmmt D dm DRAFT — 08-25-2009 10. FORCE MAJEURE. 10.1 Definition. "Force Majeure Event" means any act or event that prevents the affected Party from performing its obligations in accordance with this Agreement, if such act or event is beyond the reasonable control, and not the result of the fault or negligence, of the affected Party and such Party had been unable to overcome such act or event with the exercise of due diligence (including the expenditure of reasonable sums). Subject to the foregoing conditions, "Force Majeure Event" shall include the following acts or events: (a) natural phenomena, such as storms, hurricanes, floods, lightning and earthquakes; (b) explosions or fires arising from lightning or other causes unrelated to the acts or omissions of the Party seeking to be excused from performance; (c) acts of war or public disorders, civil disturbances, riots, insurrection, sabotage, epidemic, terrorist acts, or rebellion; (d) action by a Governmental Authority, including a moratorium on any activities related to this Agreement; and(e) the impossibility for one of the Parties, despite its reasonable efforts, to obtain, in a timely manner, any Governmental Approval necessary to enable the affected Party to fulfill its obligations in accordance with this Agreement, provided that the delay or non-obtaining of such Governmental Approval is not attributable to the Party in question and that such Party has exercised its reasonable efforts to obtain such Pen-nit. 10.2 Excused Performance. Except as otherwise specifically provided in this Agreement, neither Party shall be considered in breach of this Agreement or liable for any delay or failure to comply with the Agreement, if and to the extent that such delay or failure is attributable to the occurrence of a Force Majeure Event; provided that the Party claiming relief under this Article 10 shall immediately (a) notify the other Party in writing of the existence of the Force Majeure Event, (b) exercise all reasonable efforts necessary to minimize delay caused by such Force Majeure Event, (c)notify the other Party in writing of the cessation or termination of said Force Majeure Event and (d) resume performance of its obligations hereunder as soon as practicable thereafter. 10.3 Termination in Consequence of Force Majeure Event. If a Force Majeure Event shall have occurred that has affected Provider's performance of its obligations hereunder and that has continued for a period of one hundred twenty (120) consecutive days or one hundred eighty (180) days in the aggregate, then Host shall be entitled to terminate this Agreement upon thirty (30) days' prior written notice to Provider. If at the end of such thirty (30) day period such Force Majeure Event shall still continue, this Agreement shall automatically terminate. Upon such termination for a Force Majeure Event, neither Party shall have any liability to the other, subject to Section 18.6 (Survival). By mutual agreement of the Parties, any System damaged or destroyed by a Force Majeure Event may be replaced by Provider within the time frames set forth above and subsequent to replacement and upon commencement of operation of the replacement System all terms and conditions of this Agreement will remain in effect, including the remaining Term of this Agreement. 21 P'ABndas'Agenda AnachmemsW cnda Atwhments'Agenda Anuhmems�Anwsd 200 481 Phmvoluic Soler Power Pch Agreemad DraftAm DRAFT— 08-25-2009 11. DEFAULT. 11.1 Provider Defaults and Host Remedies. (a) Provider Defaults. The following events shall be defaults with respect to Provider (each, a"Provider Default"): i. Provider shall (A) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property; (B) admit in writing its inability, or be generally unable, to pay its debts as such debts become due; (C)make a general assignment for the benefit of its creditors; (D) commence a voluntary case under any bankruptcy law; (E) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding up, or composition or readjustment of debts; (F) fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against Provider in an involuntary case under any bankruptcy law; or (G) take any corporate or other action for the purpose of effecting any of the foregoing; ii. a proceeding or case shall be commenced without the application or consent of Provider in any court of competent jurisdiction seeking (A) its liquidation, reorganization, dissolution or winding-up or the composition or readjustment of debts or, (B) the appointment of a trustee, receiver, custodian, liquidator or the like of Provider under any bankruptcy law, and such proceeding or case shall continue undefended, or any order,judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in effect for a period of ninety (90)days; and iii. Provider breaches any material term of this Agreement including but not limited to Provider's representations herein and (A) if such breach can be cured within thirty (30) days after Host's notice of such breach and Provider fails to so cure, or (B) Provider fails to commence and pursue said cure within such thirty (30) day period if, using its best efforts, a longer cure period is needed. (b) Host's Remedies. i. If a Provider Default described in Section 11.1(a)(i) or 11.1(a)(ii) has occurred, Host may terminate this Agreement upon at least fifteen (15) days' prior written notice to Provider and will have no further obligations under this Agreement; ii. If a Provider Default described in Section 11.1(a)(iii) has occurred and is continuing, Host may terminate this Agreement immediately upon the expiration 22 P:\Agendas Agenda AnachmentsAgenda Anachmems`,Agenda Anachmems`AgrmtsAmeiM]009\0 49419 Photovoltaic Solar Power Purchase Agmmcnt Draft dcc DRAFT — 08-25-2009 of the respective grace periods set forth in such provisions and will have no further obligations under this Agreement; and iii. If a Provider Default described in Section 11.1(a) has occurred and is continuing, Host may exercise any remedy it may have at law or equity or under this Agreement including but not limited to the termination of this Agreement and will have no further obligations under this Agreement. (c) Actions to Prevent Iniurv. If any Provider Default creates an imminent risk of damage or injury to any Person or any Person's property, then, in addition to any other right or remedy that Host may have, Host may (but shall not be obligated to) take such action as Host deems appropriate to prevent such damage or injury. Such action may include disconnecting and removing all or a portion of the System at Provider's cost and expense. Host shall not bear any liability or incur any costs for damages with respect to the removal, transport, or storage of the System, provided, however, that such damages are not due to Host negligence. 11.2 Host Defaults and Provider's Remedies. (a) Host Default. The following events shall be defaults with respect to Host(each, a "Host Default"): i. Host shall (A) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property; (B) admit in writing its inability, or be generally unable, to pay its debts as such debts become due; (C) make a general assignment for the benefit of its creditors; (D) commence a voluntary case under any bankruptcy law; (E) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding up, or composition or readjustment of debts; (F) fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against Host in an involuntary case under any bankruptcy law; or (G) take any corporate or other action for the purpose of effecting any of the foregoing; ii. a proceeding or case shall be commenced without the application or consent of Host in any court of competent jurisdiction seeking (A) its liquidation, reorganization, dissolution or winding-up or the composition or readjustment of debts or(B)the appointment of a trustee, receiver, custodian, liquidator or the like of Host under any bankruptcy law, and such proceeding or case shall continue undefended, or any order, judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in effect for a period of ninety(90) or more days; 23 P.NgendasWgeMa AttazhmcrosUg<nda AttachmmtsUgcnda Anachmem,�Agrmts-Amend 2009\09-08-09 Photovoltaic Solar POw<r P lrc AV...Draft doc DRAFT— 08-25-2009 r-� iii. Host breaches any material term of this Agreement if (A) such breach can be cured within thirty(30) days after Provider's notice of such breach and Host fails to so cure, or (B) Host fails to commence and pursue said cure within such thirty (30) day period if a longer cure period is needed; iv. Host fails to pay Provider any amount due Provider under this Agreement within five (5)days from receipt of notice from Provider of such past due amount; and v. Host refuses to sign authorizations needed to obtain any rebate or subsidy contemplated in Section 2.5 or refuses to sign or purposefully breaches any term of the interconnection agreement required by the Local Electrical Utility for interconnection of the System. (b) Provider's Remedies. i. If a Host Default described in Section 11.2(a)(i) or 11.2(a)(ii) has occurred, this Agreement shall terminate immediately; ii. If a Host Default described in Section 11.2(a)(iii), 11.2(a)(iv) or 11.2(a)(v) has occurred and is continuing, Provider may terminate this Agreement immediately upon the expiration of the respective grace periods set forth in such provisions; t ` and iii. If a Host Default described in Sections 11.2(a) has occurred and is continuing, in addition to any other remedy hereunder, (A) Provider may (i) cease the provision of all Solar Power, and (ii) remove the System from the Premises in compliance with the conditions of Section 2.4 herein, and(B) Provider may exercise any other remedy it may have at law or equity or under this Agreement. (c) Actions to Prevent Iniurv. If any Host Default creates an imminent risk of damage or injury to any Person or any Person's property, then in any such case, in addition to any other right or remedy that Provider may have, Provider may (but shall not be obligated to) take such action as Provider deems appropriate to prevent such damage or injury. Such action may include disconnecting and removing all or a portion of the System, in compliance with the conditions of Section 2.4 herein, or suspending the supply of Solar Power to Host, provided, however, that Provider shall use commercially reasonable efforts to provide Host with reasonable notice of such disconnection or removal or suspension of supply. 11.3 Removal of System. Upon any termination of this Agreement pursuant Section 11.2, Provider will remove the System pursuant to Section 2.4 hereof, absent any purchase of the System by Host pursuant to Section 2.3 hereof. 24 P UgenduUgeMa Annchmenu\Agenda Artuhmenu�Agenda Aruchmemt4�mtsAmmM 2009 48-0 Ph .vottac S.I.Pawer Purchax Ageemmt Dn d. DRAFT— 08-25-2009 12. LIMITATION OF LIABILITY. NEITHER PARTY NOR ANY OF ITS INDEMNIFIED PERSONS SHALL BE LIABLE TO THE OTHER PARTY OR ITS INDEMNIFIED PERSONS FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR LOSSES OR DAMAGES FOR LOST REVENUE OR LOST PROFITS, WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, A PARTY'S MAXIMUM LIABILITY TO THE OTHER PARTY, EXCEPT INDEMNITY OBLIGATIONS IN RESPECT OF PERSONAL INJURY, PROPERTY DAMAGE, BREACH OF CONFIDENTIAL INFORMATION, AND INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS, UNDER THIS AGREEMENT SHALL BE LIMITED, IN THE AGGREGATE, TO THE CONTRACT PRICE. 13. ASSIGNMENT. 13.1 Assignment. Host shall not sell, transfer, pledge or assign its interests in this Agreement without Provider's prior written consent, which consent shall not be unreasonably withheld or delayed. Host shall not sell, transfer, pledge or assign its interests in the Premises, or any part thereof, unless such sale, transfer, pledge or assignment is made subject to this Agreement. Provider shall not be prohibited from selling,transferring, pledging or assigning its interests in this Agreement. - 13.2 Lender Accommodations. Host acknowledges that Provider will be financing the acquisition and installation of the System with financing accommodations from one or more financial institutions and that Provider's obligations will be secured by, among other collateral, a pledge or collateral assignment of this Agreement and a first security interest in the System. In order to facilitate such necessary financing, and with respect to any such financial institutions of which Provider has notified Host in writing(a"Lender"), Host agrees as follows: (a) Consent to Collateral Assignment. Host acknowledges the collateral assignment by Provider to the Lender, of Provider's right, title and interest in and to this Agreement. (b) Rights Upon Event of Default. Notwithstanding any contrary term of this Agreement: i. The Lender, as collateral assignee, shall be entitled to exercise, in the place and stead of Provider, any and all rights and remedies of Provider under this Agreement in accordance with the terms of this Agreement and only in the event of Provider's or Host's default. Lender shall also be entitled to exercise all rights and remedies of secured parties generally with respect to this Agreement and the System. 25 P'Wgendas\Agenda AmchmenWAgenda Amchmm&Agenda Anachmew3Agmts-Amend 2009\W-08-09 Photovolmc Solu Power Pmchasc Agmmmt D dm DRAFT— 08-25-2009 ii. The Lender shall have the right, but not the obligation, to pay all sums due under this Agreement and to perform any other act, duty or obligation required of Provider thereunder or cause to be cured any default of Provider thereunder in the time and manner provided by the terms of this Agreement. Nothing herein requires the Lender to cure any default of Provider under this Agreement or (unless the Lender has succeeded to Provider's interests under this Agreement) to perform any act, duty or obligation of Provider under this Agreement, but Host hereby gives it the option to do so. iii. Upon the exercise of remedies under its security interest in the System, including any sale thereof by the Lender, whether by judicial proceeding or under any power of sale contained therein, or any conveyance from Provider to the Lender (or any assignee of the Lender) in lieu thereof, the Lender shall give notice to Host of the transferee or assignee of this Agreement. Any such exercise of remedies shall not constitute a default under this Agreement. iv. Upon any rejection or other termination of this Agreement pursuant to any process undertaken with respect to Provider under the United States Bankruptcy Code, at the request of Lender made within ninety (90) days of such termination or rejection, Host shall enter into a new agreement with Lender or its assignee having the same terms and conditions as this Agreement. v. At no time during the Term of this Agreement, shall Provider or Lender have any lien interest whatsoever in the real property or building to which the System is attached. (c) Right to Cure. i. Neither Host nor Lender will exercise any right to terminate or suspend this Agreement unless it shall have given the other Party prior written notice of its intent to terminate or suspend this Agreement, as required by this Agreement, specifying the condition giving rise to such right, and the Lender shall not have caused to be cured the condition giving rise to the right of termination or suspension within thirty (30) days after such notice or (if longer) the periods provided for in this Agreement; pLovide d that if such Provider Default reasonably cannot be cured by the Lender within such period and the Lender commences and continuously pursues cure of such default within such period, such period for cure will be extended for a reasonable period of time under the circumstances, such period not to exceed additional ninety (90) days. The Parties' respective obligations will otherwise remain in effect during any cure period. ii. If the Lender or its assignee (including any purchaser or transferee), pursuant to an exercise of remedies by the Lender, shall acquire title to or control of 26 P.`Agendas`.Agenda Anachmenrs Agenda Anwinoao ts�Ageada Anechmems�Agrono-Amend 2009\09 48-09 Photovoltaic Solar Power Purchaa,Agreemen Draft.doc DRAFT— 08-25-2009 Provider's assets and shall, within the time periods described in Section 13.2(c)(i) above, cure all defaults under this Agreement existing as of the date of such change in title or control in the manner required by this Agreement and which are capable of cure by a third person or entity, then such person or entity shall no longer be in default under this Agreement, and this Agreement shall continue in full force and effect. 14.NOTICES. 14.1 Notice Addresses. Unless otherwise provided in this Agreement, all notices and communications concerning this Agreement shall be in writing and addressed to the other Party as follows: 14.2 If to Provider: RDA SOLAR I, LLC 201 North"E" Street, Suite 301 San Bernardino, CA 92401 With a copy to: And: Greystone Renewable Energy Manager LLC c/o Greystone & Co. Inc. Attention: General Counsel Carnegie Hall Tower 152 West 57th Street, 60d'Floor New York,NY 10019 Facsimile: (212)649-9701 And: Nixon Peabody LLP Attention: Michael J. Goldman 401 Ninth Street,N.W., Suite 900 Washington, D.C. 20004 Telephone: (202) 585-8000 Facsimile: (202) 585-8080 And: Law Office of Mark D. Foster Attention: Mark D. Foster 4835 LBJ Freeway, Suite 424 Dallas, Texas 75244 Telephone No: (214)363-9599 Facsimile No.: (214) 363-9551 27 P:Ug<nduUgerds Amchm U\Awde A[uchmenssUgeMa A hmrn \Ag=rtm end 2009\09 "Ph owMaic Solu Power Po hs Agrx Deetl.doc DRAFT — 08-25-2009 If to Host: Redevelopment Agency of the City of San Bernardino Attention: Emil A. Marzullo, Interim Executive Director 201 North"E", Street, Suite 301 San Bernardino, CA 92401-1520 Telephone: (909) 663-1044 Facsimile: (909) 888-9413 With a copy to: Lewis Brisbois Bisgaard& Smith, LLP Attention: Tim Sabo 650 East Hospitality Lane, Suite 600 San Bernardino, CA 92408 Telephone: (909)387-1130 Facsimile No: (909) 387-1138 sabo(a,lbbslaw.com or at such other address as may be designated in writing to the other Party. 14.3 Notice. Any notice provided for in this Agreement shall be in writing, shall contain the information required by this Agreement to be communicated to any Person, and shall be (a) personally delivered to such Person, (b) sent by registered or certified mail, postage prepaid, to such Person at the address of such Person specified in this Agreement, (c) sent by a nationally recognized overnight delivery service to such Person at the address of such Person specified in this Agreement, (d) sent by facsimile transmission to such Person at the facsimile number specified in this Agreement, or (e) sent as an attachment to an e-mail in customary format to such Person at the e-mail address specified in this Agreement. Notice shall be deemed to have been given three (3) Business Days after the date of mailing when sent by registered or certified mail, postage prepaid, one (1) Business Day after delivery by the sender to a nationally recognized courier delivery service for overnight delivery, or upon actual confirmation by the recipient for personal, facsimile or e-mail delivery. 14.4 Notices of Default. Host will deliver to the Lender, concurrently with delivery thereof to Provider, a copy of each notice of default given by Host under this Agreement, inclusive of a reasonable description of Provider default. No such notice will be effective absent delivery to the Lender. Host will not mutually agree with Provider to terminate this Agreement without the written consent of the Lender. 14.5 Address for Invoices. All invoices under this Agreement shall be sent to the address provided by Host. Invoices shall be sent by regular first class mail postage prepaid. 28 P:4 gen&a Agenda AnachmemSUgeMa Anachmmts Agenda Anach.en&Ag ,.S end 3009',09-08-09 Phrn.v.a S.I.Power Purchase A,...t D ft d. I DRAFT— 08-25-2009 15. CONFIDENTIALITY. 15.1 Confidentiality Obligation. If either Parry provides confidential information, including business plans, strategies, financial information, proprietary, patented, licensed, copyrighted or trademarked information, and/or technical information regarding the design, operation and maintenance of the System or of Host's business ("Confidential Information") to the other or, if in the course of performing under this Agreement or negotiating this Agreement a Parry learns Confidential Information regarding the facilities or plans of the other, the receiving Parry shall (a) protect the Confidential Information from disclosure to third parties with the same degree of care accorded its own confidential and proprietary information, and (b) refrain from using such Confidential Information, except in the negotiation and performance of this Agreement. Notwithstanding the above, a Party may provide such Confidential Information to its, officers, directors, members, managers, employees, agents, contractors and consultants (collectively, "Representatives'), and Affiliates, lenders, and potential assignees of this Agreement (provided and on condition that such potential assignees be bound by a written agreement restricting use and disclosure of Confidential Information), in each case whose access is reasonably necessary to the negotiation and performance of this Agreement. Each such recipient of Confidential Information shall be informed by the Party disclosing Confidential Information of its confidential nature and shall be directed to treat such information confidentially and shall agree to abide by these provisions. In any event, each Party shall be liable (with respect to the other Party) for any breach of this provision by any entity to whom that Party improperly discloses Confidential Information. The terms of this Agreement (but not its execution or existence) shall be considered Confidential Information for purposes of this Article, except as set forth in Section 15.3. All Confidential Information shall remain the property of the disclosing Party and shall be returned to the disclosing Party or destroyed after the receiving Party's need for it has expired or upon the request of the disclosing Party. The receiving Party shall notify the disclosing party immediately upon discovery of any suspected unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by the receiving party, and cooperate with the disclosing party in every reasonable way to help the disclosing party regain possession of the Confidential Information and prevent its further use or disclosure. Notwithstanding anything herein to the contrary, the Parties agree that they (and each employee, representative, or other agent of such Party) may disclose to any and all Persons the tax treatment and tax structure of the transaction and any transactions proposed or entered into by and between the Parties and all materials of any kind (including opinions or other tax analysis) that are provided to the Parties relating to such tax treatment or tax structure. 15.2 Permitted Disclosures. Notwithstanding any other provision herein, neither Party shall be required to hold confidential any information that (a) becomes publicly available other than through the receiving Party; (b) is required to be disclosed by a 29 P:4�ndu\Agenda Anachmems\Agenda"achmenss\Agenda.Amchmems\Agrmn-Amend 2 0\N-0"Phosovol,a,S.I.Power Nrch A,...,Dn doc DRAFT— 08-25-2009 Governmental Authority, under Applicable Law or pursuant to a validly issued subpoena, but a receiving Party subject to any such requirement shall promptly notify the disclosing Party of such requirement; (c) is independently developed by the receiving Party; or (d) becomes available to the receiving Parry without restriction from a third party under no obligation of confidentiality. 15.3 Goodwill and Publicity. Neither Party shall use the name, trade name, service mark, or trademark of the other Party in any promotional or advertising material without the prior written consent of such other Party. The Parties shall coordinate and cooperate with each other when making public announcements related to the execution and existence of this Agreement, and each Party shall have the right to promptly review, comment upon, and approve any publicity materials, press releases, or other public statements by the other Party that refer to, or that describe any aspect of, this Agreement; provided that no such publicity releases or other public statements (except for filings or other statements or releases as may be required by Applicable Law) shall be made by either Party without the prior written consent of the other Party. At no time will Provider acquire any rights whatsoever to any trademark,trade name, service mark, logo or other intellectual property right belonging to Host. 15.4 Enforcement of Confidentiality Obligation. Each Party agrees that the disclosing Party would be irreparably injured by a breach of this Article by the receiving Party (' or its Representatives or other Person to whom the receiving Party discloses �•+ Confidential Information of the disclosing Party and that the disclosing Party may be entitled to equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Article. To the fullest extent permitted by Applicable Law, such remedies shall not be deemed to be the exclusive remedies for a breach of this Article, but shall be in addition to all other remedies available at law or in equity. 16. INDEMNITY. 16.1 Provider's Indemnity. Provider agrees that it shall indemnify, defend and hold harmless Host, its permitted successors and assigns and their respective directors, officers, members, shareholders and employees (collectively, the "Host Indemnified Parties") from and against any and all Losses incurred by the Host Indemnified Parties to the extent arising from or out of the following: (a) any claim for or arising out of any injury to or death of any Person or loss or damage to property of any Person to the extent arising out of Provider's negligence, recklessness, or willful misconduct, including without limitation, the actions or omissions of Provider's onsite employees and/or subcontractors; (b) any infringement of patents or the improper use of other proprietary rights by Provider or its employees or representatives that may occur in connection with the performance of the Installation Work or Solar Power and the ownership and use of the System; or(c)material breach 30 P.Agendas Agenda Anachmem9Ageada Amchmems.Agenda Machmen¢`Agrmb-Amend 200909-08-09 Phom..ft.c Solar Power Purchase Agramera D d. DRAFT — 08-25-2009 of Provider's representations. Provider shall not, however, be required to reimburse or indemnify any Host Indemnified Party for any Loss to the extent such Loss is due to the negligence, recklessness or willful misconduct of any Host Indemnified Party. 16.2 Host's Indemnity. Host agrees that it shall indemnify, defend and hold harmless Provider, its permitted successors and assigns and their respective directors, officers, members, shareholders and employees (collectively, the "Provider Indemnified Parties") from and against any and all Losses incurred by the Provider Indemnified Parties to the extent arising from or out of the following: (a) any claim for or arising out of any injury to or death of any Person or loss or damage to property of any Person to the extent arising out of Host's negligence or willful misconduct, including without limitation, the actions or omissions of Host's onsite employees and/or subcontractors; or (b) any loss or damage to the Provider arising out of or resulting from the actions or inactions of the Host. Host shall not, however, be required to reimburse or indemnify any Provider Indemnified Party for any Loss to the extent such Loss is due to the negligence, recklessness or willful misconduct of any Provider Indemnified Party. 16.3 Indemnification Procedure. (a) Notice. Whenever any claim arises for indemnification under this Agreement,the Person who has the right to be indemnified (the "Indemnified Party") shall notify �. the Person who has the indemnification obligation (the "Indemnifying Party') in writing as soon as practicable (but in any event prior to the time by which the interest of the Indemnifying Party will be materially prejudiced as a result of its failure to have received such notice) after the Indemnified Party has knowledge of the facts constituting the basis for such claim (the "Notice of Claim"). Such Notice of Claim shall specify all facts known to the Indemnified Party giving rise to such indemnification right and the amount or an assessment of the amount of the liability arising therefrom. (b) Third Party Claims. If the facts giving rise to any such indemnification shall involve any actual or threatened claim or demand by any third party (including an inquiry or audit by any Governmental Authority with respect to any period in whole or in part prior to the date of this Agreement)against the Indemnified Party or any possible claim or demand by the Indemnified Party against any such third party, the Indemnifying Party shall (without prejudice to the right of the Indemnified Party to participate at its expense through counsel of its own choosing) defend such claim in the name of the Indemnified Party at the Indemnifying Party's expense and through counsel of its own choosing. The Parties shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony and attend such conferences and discovery as reasonably requested in connection therewith. 31 P NpndaaAgend&A aahnWAgeada AttachmeimUgmhht Amchmems`Agmts-Amend 20091,09-08-09 Photovoltaic Solar Power Purchase Ageement D af[doc DRAFT— 08-25-2009 (c) Settlement: Judgment. Notwithstanding the Indemnifying Party's obligation to assume and conduct the defense of a claim for indemnification with counsel of its choice, the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to a claim for indemnification without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves the payment of money damages and does not impose an injunction or other equitable relief upon the Indemnified Parry or any acknowledgment of the validity of any claim. Until the Indemnifying Parry assumes the defense of a claim of indemnification arising out of a third party claim, the Indemnified Party may defend against the third party claim in any manner it may deem reasonably appropriate at the Indemnifying Party's cost and expense; provided that in no event shall the Indemnified Party consent to the entry of any judgment or enter into any settlement with respect to the third party claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld). (d) Indemnification Payments. At the time that the Indemnifying Party makes any indemnity payment under this Agreement, the indemnification payment shall be adjusted such that the indemnification payment, will result in the Indemnified Party receiving an amount equal to such indemnity payment, after taking into account (i) all national, state, and local income taxes that are actually payable by the Indemnified Party with respect to the receipt of such indemnity payment, and (ii) all national, state, and local income tax deductions allowable to the Indemnified Party for any items of loss and deduction for which the Indemnified Party is being indemnified. 17. INSURANCE. 17.1 Generally. Host shall maintain the following insurance coverages in full force and effect throughout the Term: (a) Workers' Compensation Insurance as may be from time to time required under applicable federal and state law, and (b) Commercial General Liability Insurance with limits of not less than $5,000,000 general aggregate, $2,000,000 per occurrence. Additionally, Host shall carry adequate property loss insurance, including loss of rents, terrorism, inflation, on the Premises which shall cover System and builder's risk coverage for the System, each providing replacement cost coverage in an amount equal to 100% of replacement costs. The amount and terms of insurance coverage will be determined at Provider's sole discretion. 17.2 Certificates of Insurance. Host shall furnish current certificates evidencing that the insurance required under Section 17.1 is being maintained. Host's insurance policies provided hereunder shall contain a provision whereby the insurer agrees to give Provider thirty (30) days' written notice before the insurance is cancelled or materially altered. 32 P.V gM,Ape Au.h.Mts pMa A h.Mm\A,,M A=hm ,kA ,nd 2�-08-09 Phorovohvc Solar PuwV Nrch Agmmcm D dm DRAFT — 08-25-2009 yr 17.3 Additional Insureds. Host's insurance policy shall be written on an occurrence basis and shall include Provider as an additional insured as its interest may appear. 17.4 Insurer Oualifications. All insurance maintained hereunder shall be maintained with companies either rated no less than A- as to Policy Holder's Rating in the current edition of Best's Insurance Guide (or with an association of companies each of the members of which are so rated) or having a parent company's debt to policyholder surplus ratio of 1:1. 18. MISCELLANEOUS. 18.1 Integration, Exhibits. This Agreement, together with the Exhibits and Schedules attached hereto, constitutes the entire agreement and understanding between Provider and Host with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof, which are of no further force or effect. The Exhibits and Schedules attached hereto are integral parts hereof and are made a part of this Agreement by reference. In the event of a conflict between the provisions of this Agreement and those of any Exhibit, the provisions of this Agreement shall prevail, and such Exhibit or Schedule shall be corrected accordingly. 18.2 Amendments. This Agreement may only be amended, modified or supplemented by an instrument in writing executed by duly authorized representatives of Provider and Host. 18.3 Industry Standards. Except as otherwise set forth herein, for the purpose of this Agreement the normal standards of performance within the solar photovoltaic power generation industry in the relevant market shall be the measure of whether a Party's performance is reasonable and timely. Unless expressly defined herein, words having well-known technical or trade meanings shall be so construed. 18.4 Cumulative Remedies. Except as set forth to the contrary herein, any right or remedy of Provider or Host shall be cumulative and without prejudice to any other right or remedy, whether contained herein or not. 18.5 Limited Effect of Waiver. The failure of Provider or Host to enforce any of the provisions of this Agreement, or the waiver thereof, shall not be construed as a general waiver or relinquishment on its part of any such provision, in any other instance or of any other provision in any instance. 18.6 Survival. The obligations under Sections 2.4 (Removal of System), Section 7.1(d) (Provider Representations), Sections 7.2(d), (e), (f) and (g) (Host Representations), Section 8.3 (Exclusion of Warranties), Article 9 (Taxes and Governmental Fees), Article 12 (Limitation of Liability), Article 14 (Notices), Article 15 (Confidentiality), 33 P.�gce sAgenda Amchmmts\Agei aAmchments\Agenda AnachmentsAg tsAm 2WYt09-08-09Plwmwl cSalo Power Purchue Ages p dm DRAFT— 08-25-2009 Article 18 (Miscellaneous), or pursuant to other provisions of this Agreement that, by their sense and context, are intended to survive termination of this Agreement shall survive the expiration or termination of this Agreement for any reason. 18.7 Severabilitv. If any term, covenant or condition in this Agreement shall, to any extent, be invalid or unenforceable in any respect under Applicable Law, the remainder of this Agreement shall not be affected thereby, and each term, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by Applicable Law and, if appropriate, such invalid or unenforceable provision shall be modified or replaced to give effect to the underlying intent of the Parties and to the intended economic benefits of the Parties. 18.8 Relation of the Parties. The relationship between Provider and Host shall not be that of partners, agents, landlord/tenant or joint ventures for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership, lease agreement or agency agreement between them for any purposes, including federal income tax purposes. Provider and Host, in performing any of their obligations hereunder, shall be independent contractors or independent parties and shall discharge their contractual obligations at their own risk. 18.9 Successors and Assigns. This Agreement and the rights and obligations under this Agreement shall be binding upon and shall inure to the benefit of Provider and Host and their respective permitted successors and assigns. 18.10 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument 18.11 Facsimile Delivery. This Agreement may be duly executed and delivered by a Party by execution and facsimile delivery or delivery sent as an attachment to an e-mail in customary format of the signature page of a counterpart to the other Party, and, if delivery is made by facsimile or sent as an attachment to an e-mail in customary format, the executing Party shall promptly deliver, via overnight delivery, a complete original counterpart that it has executed to the other Party, but this Agreement shall be binding on and enforceable against the executing Party whether or not it delivers such original counterpart. 18.12 Attorneys' Fees. If any legal action or other proceeding is brought for the enforcement of this Agreement or because of an alleged dispute, default, misrepresentation, or breach in connection with any of the provisions of this Agreement, except as expressly excluded in this Agreement, the successful or prevailing Party shall be entitled to recover reasonable attorneys' fees, expenses expert witness fees, and other costs incurred in that action or proceeding in addition to any other relief to which it may be entitled 34 P:'Agendu'AgeM Anachm m\Ag.Wa Anachmems\Agenda Anachmems'Agm 1,A 3009\09-0"PM,ow1,S.I.Power P r,h Agreemmt Daft d. DRAFT— 08-25-2009 18.13 Equitable Relief. The parties recognize and agree that there is no adequate remedy at law for a breach of Section 7 or Section 15 that such a breach would irreparably harm the non-breaching party and that the non-breaching party is entitled to seek equitable relief (including, without limitation, injunctions with respect to any such breach or potential breach) in addition to any other remedies available at law or equity. 18.14 Subcontractors. Provider may perform services and System Installation through subcontractors it chooses and who will be bound by this Agreement. Provider acknowledges and agrees that it shall be solely responsible and liable for its subcontractors and its subcontractors shall be subject to the terms of this Agreement. 18.15 Governing Law. This Agreement shall be interpreted and governed by the laws of the state where the System is located, without regard to conflict of laws provisions. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 35 P.Agendas'Agenda Anach.em.s Benda Alwhments Agenda AnachmcntsUgrmtsAmend 2009\09-08A9 Photovoltaic Solar Power P Chm Awe ms D A dm IN WITNESS WHEREOF and in confirmation of their consent to the terms and conditions contained in this Agreement and intending to be legally bound hereby, Provider and Host have executed this Agreement as of the Effective Date. PROVIDER: RDA Solar I, LLC, a California limited liability company By: Sustainable Communities Reinvestment Partnership, LLC, a California limited liability company Its: Managing Member Date: By: Name: Title: (� HOST: �+' Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic Dated: By: Emil A. Marzullo, Interim Executive Director Approved as to Form and Legal Content: Agency Counsel P.AgeMssUpe A chmemMgenda Amchmmts\A enda A=hmentsWg taAmend 200 W48-09 Phnwvoltaic Solar Powa Purcl Agreement Draft.dm This Exhibit consists of four (4) schedules and relates to the Solar Power Purchase Agreement, dated as of September _, 2009 (as amended, supplemented or otherwise modified from time to time, the "Agreement"), between REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, ("Host") and RDA Solar I, LLC ("Provider'). Capitalized terms used and not otherwise defined herein have the meanings ascribed thereto in the Agreement. 1. Schedule 1 Description of the Premises. The Premises for the installation of the System provided pursuant to this Agreement are described in Schedule 1 to this Exhibit A. 2. Schedule 2 Description of System. The System to be installed in the Premises subject to this Agreement shall be as described in Schedule 2 to this Exhibit A. 3. Schedule 3 Rebate/Subsidy. The amount of the rebate or subsidy available to Provider from the state, local utility, or other source for the installation of the System shall be as specified in Schedule 3 to this Exhibit A. 4. Schedule 4 Emergency Contact Information. Emergency Contact Information for each Party shall be as specified in Schedule 4 to this Exhibit A. 5. Schedule 5 Solar Payment. The amount of the Solar Payments, the Minimum Monthly �,. Production and the Maximum Monthly Production shall be as specified in Schedule 5 to this Exhibit A. P.UFdasNgenda Anachmeme genda AnwhmentsUgenda AnachmentsWg ts.Amend 2009`,09-06 49 Photovoltaic Solar Power Purchase Agreement Draft.doc Schedule 1 Description of the Premises PARCEL NO. IA: THAT PORTION OF BLOCK 13,CITY OF SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 PAGE 1 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE EAST LINE OF "E" STREET WITH THE NORTH LINE OF "2ND" STREET AS DESCRIBED IN THAT CERTAIN DEED TO THE CITY OF SAN BERNARDINO RECORDED MAY 21, 1970 IN BOOK 7447 PAGE 275 OFFICIAL RECORDS OF SAID COUNTY; THENCE SOUTH 890 56'00" EAST ALONG SAID NORTH LINE, 111.67 FEET; THENCE NORTH 450 04' 11"EAST,9.90 FEET; THENCE NORTH 00 04' 11" EAST, 112.21 FEET; THENCE NORTH 150 04' 11" EAST, 100.46 FEET; THENCE NORTH 00 04' 11" EAST, 111.75 FEET TO A LINE PARALLEL WITH AND DISTANT 225.92 FEET SOUTHERLY MEASURED AT RIGHT ANGLES,FROM THAT CERTAIN COURSE RECITED AS "NORTH 890 55'49" WEST 206.48 FEET" IN THE BOUNDARY DESCRIBED IN DEED TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, CALIFORNIA RECORDED JUNE 4, 1970 IN BOOK 7455 PAGE 214 OFFICIAL RECORDS OF SAID COUNTY; THENCE NORTH 890 55'49"WEST ALONG SAID PARALLEL LINE 137.19 FEET TO SAID EAST LINE OF "E" STREET; THENCE SOUTH 30 57'5 1" WEST ALONG SAID EAST LINE 116.07 FEET; THENCE CONTINUING ALONG SAID EAST LINE SOUTH 00 02'25"EAST 212.20 FEET TO THE POINT OF BEGINNING. ALSO KNOWN AS PARCEL NO. 27 OF PARCEL MAP NO. 688 IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 25 OF PARCEL MAPS, PAGES 47 TO 58 INCLUSIVE, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. P:Ngendaa`.Agenda Anachments Agenda Attazhments Agenda Aruch .e \Ag tsA end 200 N\ 8-09 Photovoltaic Solar Power Nrch Agrc m D doc PARCEL NO. IB: TOGETHER WITH AN EASEMENT FOR VEHICULAR INGRESS AND EGRESS OVER THAT PORTION OF SAID BLOCK 13 DESCRIBED AS FOLLOWS: COMMENCING AT SAID INTERSECTION OF THE EAST LINE OF "E" STREET WITH THE NORTH LINE OF "2ND" STREET; THENCE SOUTH 890 56'00" EAST ALONG SAID NORTH LINE 111.67 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 450 04' 11" EAST ALONG THE EAST LINE OF THE ABOVE DESCRIBED PARCEL 9.90 FEET; THENCE CONTINUING ALONG SAID EAST LINE NORTH 00 04' 11"EAST, 112.21 FEET; THENCE CONTINUING ALONG SAID EAST LINE NORTH 150 04' 11"EAST, 100.46 FEET; THENCE CONTINUING ALONG SAID EAST LINE NORTH 00 04' 11" EAST, 11.75 FEET TO THE NORTH LINE OF SAID PARCEL; THENCE SOUTH 890 55'49" EAST ALONG THE EASTERLY PROLONGATION OF SAID NORTH LINE 30.50 FEET; THENCE SOUTH 00 04' 11" WEST, 138.74 FEET; THENCE SOUTH 150 04' 11 WEST, 113.98 FEET; THENCE SOUTH 00 04' 11-WEST,79.16 FEET TO SAID NORTH LINE OF "2ND" STREET; THENCE NORTH 890 5700" WEST, 34.00 FEET TO THE POINT OF BEGINNING. END OF LEGAL DESCRIPTION P:'A,e&d ,Agend.Artachm=n genda A"echmems\Agenda Anachmenti AgrmtsA end 2009\09-08-09 Phdowhic Solar Power Nmhw Agreemem D aft doc Schedule 2 Description of System Equipment and Services Quantity Description 1 SatCon PVS-250 208 1392 Sanyo HIP-195BA3 1 Energy Recommerce Inc. Monitoring Solution and—Kiosk — I SunLink Mounting System Related Services and Deliverables. ❑ California State Sales Tax ❑ 20 Year Manufacturer's Performance Warranty on Solar Modules ❑ 10-Year Warranty on All Inverters and Transformers(if built into inverter) ❑ 15-Year OEM SunLink Support System Warranty ❑ SPG 10-Year Installation Warranty with Annual System Inspections(10 years) ❑ PV Panels and Inverters with a Minimum Total Rating of 245.215 AC-CEC kilowatts ❑ All Electrical Switch Gear Preparation to Accept Solar System ❑ All Electrical Connectors,Cabling&Components Nec. for a Complete Solar System ❑ Complete Electrical Engineering Services Including Diagrams ❑ Complete Structural Engineering Services Including Diagrams ❑ Planning and Design Review Services Including All Meetings with Building Department ❑ All Building Permit and Utility Processing Costs ❑ Utility Interconnect Agreement Processing Services ❑ Rebate Application Processing&Coordination ❑ Incentive Program Inspections Coordination ❑ Local Building and Electrical Inspections Coordination ❑ Secure Storage Facility at Job Site for All PV System Equipment and Supplies ❑ Project Manager/Foreman ❑ Lavatory Facilities at Job Site, if needed ❑ System Operation and Safety Manuals and Customer Training ❑ Final PV System"As-Built"schematics ❑ Final Cleanup to"broom clean"condition P.V gendu\Agenda AtuchmentsWger Anazh msUApM Attachmms%AgrmtrAmend 3009\0949-0 Phatow[Wc Solo Power Purchm Agramm D dm c�edu'�e Rebate/Subsidy SAN BERNARDINO UTILITY REBATE PAYMENT SCHEDULE Yr. 1 Prod: 462,921 Yr. 2 Prod: 460,606 System Size: 245.214 Yr. 3 Prod: 458,303 Yr. 4 Prod: 456,012 System Annual Production: 462,921 (100%) Yr. 5 Prod: 453,732 Proiected Proiected Year End Date Rebate (kWh) Rebate January 1, 2010 6,386 29,025 February 1, 2010 6,253 28,423 March 1, 2010 7,852 35,691 April 1, 2010 7,984 36,293 May 1, 2010 9,319 42,357 June 1, 2010 10,907 49,579 July 1, 2010 10,775 48,977 August 1, 2010 10,643 48,375 September 1, 2010 9,319 42,357 October 1, 2010 7,984 36,293 November 1, 2010 7,720 35,089 December 1, 2010 6,650 30,229 $101,791.70 January 1, 2011 6,354 28,880 February 1, 2011 6,222 28,281 March 1, 2011 7,813 35,513 April 1, 2011 7,945 36,112 May 1, 2011 9,120 41,455 June 1, 2011 10,853 49,331 July 1, 2011 10,721 48,732 August 1, 2011 10,589 48,133 September 1, 2011 9,272 42,145 October 1, 2011 7,945 36,112 November 1, 2011 7,681 34,914 December 1, 2011 6,617 30,078 $101,130.74 January 1, 2012 6,322 28,736 P.WgeM \AgcM A hmems\ pMa AmmhmmnsUgenda Anachmems�Amevd 2009\09 48-09 Phmovoluic Solar Power Purchase Agreement Dmft.dac February 1, 2012 6,191 28,140 March 1, 2012 7,774 35,335 April 1, 2012 7,905 35,931 May 1, 2012 9,074 41,247 June 1, 2012 10,799 49,084 July 1, 2012 10,667 48,488 August 1, 2012 10,536 47,893 September 1, 2012 9,226 41,935 October 1, 2012 7,905 35,931 November 1, 2012 7,643 34,739 December 1, 2012 6,584 29,927 $100,625.09 January 1, 2013 6,290 28,592 February 1, 2013 6,160 27,999 March 1, 2013 7,735 35,159 April 1, 2013 7,865 35,751 May 1, 2013 9,029 41,041 June 1, 2013 10,745 48,839 July 1, 2013 10,614 48,246 August 1, 2013 10,484 47,653 September 1, 2013 9,180 41,725 October 1, 2013 7,865 35,751 November 1, 2013 7,604 34,566 December 1, 2013 6,551 29,778 $100,121.96 January 1, 207.4 6,259 28,449 February 1, 2014 6,129 27,859 March 1, 2014 7,696 34,983 April 1, 2014 7,826 35,573 May 1, 2014 8,984 40,836 June 1, 2014 10,691 48,595 July 1, 2014 10,561 48,005 August 1, 2014 10,431 47,415 September 1, 2014 9,134 41,516 October 1, 2014 7,826 35,573 November 1, 2014 7,566 34,393 December 1, 2014 6,518 29,629 $99,621.35 P.Ngeada\Agmda A ac emsNpe Aaa ft&Ageeda AttachmemskAgmss-AmeM 20 0 498 Phmov Uc Sole Powa Purchase Ageemem DM.doc Schedule 4 Emeraency Contact Information Michael Johnson National Development Council 3 Hart Lane Mill Valley, CA 94941 Miohnson44(i ,macxom (0) (415)380-9601 (C) (415) 686-5586 P'.UgendaAAgenda 3009 &-N Photosoltwc Solar Power Nmrc w Agreement Draft doc OD 00 to N 7 M 00 r, U1 M 0 .i U1 0000 000 O 00 O O In O N iD V 0U1 V U1 m C 00000000 00 O O r, vt 00 OCMNN N V 007 'i 7OIt r, IT 0 N �O OO 6 I mtn r: C» M OT r� 00 � rl1 O R0 tD �D 0 N ^ N r r, r. 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V 00000000 00 00 <` N N N 7 7 IT 7 It 7 t0 t0 t0 t0 t0 t0 t0 0 t0 t0 t0 t0 tO t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 iA to iA Or iA iA Uf if,iA iA i!f if}H} N} V} fA iff Vf iA iA YI HT to to iA VA VI E 0 t� F Ln tO ' t0 r, rl rl O t0 to H H 0 ^ Nti ti NN ~O � 0 �0 N NN DO N N coo OONN - -Z a) O1 d E Y L d L ri N cu E m � L 'i '� .i V) aE E Ln N V) 01 Ln J L U - 0) J Y t0 01 t0 O1 t0 J L U - OJ 0 � ow m M Ei= ov m000 w oo m � > w) — > 0 N OZNON LL � Qf n QnN OZNON > o � o F < MN OZNa n: o n m N lq N v v 00000000 00 O o 00000000 0o O O 00000000 00 0 0 00000000 00 O o Nt0 O ton OIt n nt0 M V m007 Ln r` .-Im Ln V N M m 00 t0 t0 N O m O N t0 Ln O m 00 Ln t0 N m m W N t0 Ln O N N M M V Ln -t 7 V M M M N N M m Q It 7 V 't M M M 00000000 O O O O 00000000 O O O O 00000000 O O O O 00000000 O O O O . t0m7 N m � m n 7 V N OMMMM N N r\ LnM N .i Ln -13 O 1 t0 N N . tO .Z O t0 LA t O 1 t0 N N 1 t0 1 O t0 N N MMM -t V v M M M N N NMMM V at IT M M M N 00 . 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It -00m IT m S 00 M N 00 t0 t0 O IT tD 00 r\ O N . . t0 It M 00 N It t0 Ln 00 Ncq m P) Ohvv 't m M m NNm m OIt IO tO 07 M O F - N N M M 7 � � t t � M M N N N M MIt It It IT It M M N E E ID tO 0 t0 0 tO 0 tO t0 tD t0 t0 r\ r% N N r\ N NN r, r, I\ N MM M M M M MM MM M M a` I" llrl rIz. r. 11 r. r- mm mmmmmm mm m m t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 t0 tO tO t0 t0 iR iR HT iPr iPr iR iR iPr iPr iPr iR vi iR iR iA H}iR iA V1 iA iR iR, VR W 5 c a w m ti� 0 00 " O 0t N N p 00 00 O N m m m 0 00 m E N `ti ~ NN 00 C:) ice 'ti C7 N '"i ~ NNO N C) m m 'i .;N ;NNE W E Z r Nr �' n E vE E s r� V ~ ~ J Y 07 Q d 00 w 00 l V ~ W ~ : Y m Q V m d m T C T OL C..i Y > .-t V .� C i= T C T lT a H Y > .� V .� � a@ > > > a� o V 0ovo rov onm > > > wo V 00 w s IL � Q E .� < MN OZNON r� LL Z < Z n n QLON OZNON d EXHIBIT B Acknowledgment and Confirmation Pursuant to Section 2.5(g) of that certain Solar Power Purchase Agreement, dated as of September_, 2009 (as amended, supplemented or otherwise modified from time to time, the "Agreement"), between SAN BERNARDINO REDEVELOPMENT AGENCY ("Host") and RDA SOLAR I, LLC ("Provider'), Host hereby acknowledges and confirms: 1. That throughout the duration of the Agreement, Provider shall be the legal and beneficial owner of the System at all times, including all Environmental Attributes, provided that the renewable energy credits, green tags, tradable renewable credits and Green-e® credits may be purchased by Host in accordance with the Agreement, and the System shall remain the personal property of Provider and shall not attach to or be deemed a part of, or fixture to, the Premises. 2. That the System shall at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code. 3. That Host will use reasonable commercial efforts to place all parties having an interest in or lien upon the real property comprising the Premises on notice of the ownership of the System and the legal status or classification of the System as personal property and if there is any mortgage or fixture filing against the Premises which could reasonably be construed as prospectively attaching to the System as a fixture of the premises, Host shall provide a disclaimer or release from the lienholder. 4. That Host consents to the filing of a disclaimer of the System as a fixture of the Premises in the office where real estate records are customarily filed in the jurisdiction of the Premises and shall execute such acknowledgments and other evidences of Provider's ownership of the System as Provider may request from time to time, and pay the cost of the filing or recording of the same as the case may be whenever Provider deems desirable, and will do such other acts and things as Provider may reasonably request in order to effectuate fully the intent of this Section. P:blyendas Agenda Artachroents Agenda AnachonemiAgeoda Am ems`Agrmts-Amend 2009\09-08-09 Photovoltaic Solar Power Porch Agreamam Dra doc Capitalized terms used and not otherwise defined herein have the meanings ascribed thereto in the Agreement. RDA SOLAR I, LLC, a California limited liability Company By: Sustainable Communities Reinvestment Partnership, LLC, a California limited liability company Its: Managing Member By: Name: Title: P:V4W&eM8e0dt AmKh�M4m4 AMdMMV488h AmrlmmldAWm Amd WOU9 "Phmwkw Sole P.Rmhm AWE DmA.doe DRAFT GUARANTY This Guaranty (this "Guaranty"), dated and effective as of September 8`h, 2009, is made by the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the"Guarantor"). Recitals WHEREAS, Sustainable Communities Reinvestment Partnership, LLC, a California limited liability company (the "Managing Member") is the managing member of Master Tenant 2008-B LLC, a Delaware limited liability company (the "Company") and of RDA Solar I LLC, a California limited liability company (the "Lessor"); and WHEREAS, the Guarantor is an affiliate of the Managing Member; and WHEREAS, Greystone Renewable Energy Fund 2008-A LLC, a Delaware limited liability company (the "Investor Member"), and the Managing Member are the only members of the Company; and WHEREAS, the Company is operating pursuant to that certain Operating Agreement dated as of the date hereof(the "Operating Agreement'); and WHEREAS, the Lessor was formed to construct a 243 kW photovoltaic solar power system (the "Energy Systems") in accordance with the provisions of that certain Development Agreement dated as of even date herewith between the Guarantor and Lessor in a manner that will qualify for the energy credit under Section 48 of the Code; and WHEREAS, the Company was formed for the purpose of leasing the Energy Systems from the Lessor pursuant to that certain Master Lease dated as of the date hereof(the "Master Lease"); and WHEREAS, the Lessor and the Company have executed or will execute that certain Pass- Through Agreement (the "Pass Through Agreement') of even date herewith pursuant to which the Lessor will elect under Section 50 of the Code to pass through to the Tenant the Energy Credits to which the Lessor is otherwise entitled as a result of the installation of the Energy Systems following the purchase of such Energy Systems and the assumption of the associated agreements from Lessor; and WHEREAS, the Managing Member, under the Operating Agreement, represents, warrants and covenants, among other things, that it will use diligent efforts to operate the Energy Systems as required by the Code in order to qualify for and maintain the Energy Credits and other tax benefits anticipated in connection therewith; and WHEREAS, the Guarantor will benefit from the installation and operation of the Energy Systems and has agreed to provide certain guaranties. L" Nrr P.Nge�MasWgrnda AnuhmentSAgeMa Anxlunenu�Agenda Anachmenu�Agrmts-Amrnd 200 W\ 8-09 PhW.Imn Guaranty A�.m Daft.DOC Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby agrees for the benefit of the Investor Member as follows: 1. Covenants, Representations and Warranties. Guarantor represents and warrants to the Investor Member as follows: (a) the execution, delivery and performance by it of this Guaranty does not and will not contravene or conflict with any law, order, rule, regulation, writ, injunction or decree now in effect of any government, governmental instrumentality or court or tribunal having jurisdiction over it, or any contractual restriction binding on or affecting it; (b) the execution, delivery and performance by it of this Guaranty does not and will not conflict with or result in a breach of the terms or provisions of any indenture, agreement or instrument to which it is a party, or by which it is bound, or to which it is subject, or constitute a default thereunder; (c) with the assistance of counsel of its choice, it has read and reviewed this Guaranty and such other documents as it and its counsel deemed necessary or desirable to read; (d) it is a public body, corporate and politic and is formed and existing under the laws of the State of California and has the full power and authority to enter into and perform +�.. its obligations under this Guaranty; and (e) it has duly authorized, executed and delivered this Guaranty, and this Guaranty is fully enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency and other laws affecting creditors' rights and remedies generally and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether a proceeding is sought in equity or at law). 2. Guaranty. (a) Guarantor shall unconditionally guarantee due payment, performance and fulfillment of any and all of the Managing Member's obligations (i) related to any Recapture Event as set forth in Section 5.01(e) of the Operating Agreement, (ii) related to any repurchase obligation as set forth in Section 5.05 of the Operating Agreement, (iii)to fund Excess Development costs and to make Operating Deficit Loans pursuant to Sections 8.09(a) and (b), respectively, of the Lessor Operating Agreement, (iv)to make Operating Deficit Loans pursuant to Section 8.09(b) of the Operating Agreement, and (v) with respect to the exercise of the Put Option as set forth in Section 9.05 of the Operating Agreement. (b) The Guarantor's obligations under Section 2(a) shall expire upon the last day of the fourth year following the year in which the Recapture Period for the Energy Credits shall have ended. 2 P Ng-W-\AVnda Amchmm \APW.AnachmenuUgeMa A hmem,\Agrmt end 2009 09-oa-g9 Photovoltaic G mry Agreement o aft c 3. Attorneys' Fees and Expenses. The Guarantor shall reimburse the Investor -' Member for all reasonable attorneys' fees and expenses which the Investor Member pays or incurs in connection with enforcing this Guaranty, including, without limitation, all costs, attorneys' fees and expenses incurred by the Investor Member in connection with any insolvency, bankruptcy, reorganization, arrangement or other similar proceedings involving the Guarantor which affect the exercise by the Investor Member of its rights and remedies hereunder. Any and all such costs, attorneys' fees and expenses not so paid shall bear interest at an annual interest rate equal to the lesser of (i) 18%, or (ii)the highest rate permitted by applicable law, from the date incurred by the Investor Member until paid by the Guarantor. 4. Direct and Primary Obligations. The Guarantor agrees that if the obligations guaranteed by this Guaranty are not fully and timely paid or performed according to the tenor thereof, whether by acceleration or otherwise, Guarantor shall immediately upon receipt of written demand therefor from the Investor Member pay all amounts due or performance obligations hereby guaranteed in like manner as if the obligations constituted the direct and primary obligations of the Guarantor. The Guarantor shall not have any right of subrogation as a result of any payment or performance hereunder or any other payment made or performance by the Guarantor on account of the amounts or obligations due hereunder, and the Guarantor hereby waives, releases and relinquishes any claim based on any right of subrogation, any claim for unjust enrichment or any other theory that would entitle the Guarantor to a claim against the Company based on any payment made or performance hereunder or otherwise on account of the amounts or obligations due hereunder. 5. Continuing and Irrevocable Obligations. This Guaranty and the obligations of the Guarantor hereunder shall be continuing and irrevocable until all amounts have been satisfied in full. Notwithstanding the foregoing or anything else set forth herein, and in addition thereto, if at any time all or any part of any payment received by the Investor Member from the Guarantor under or with respect to this Guaranty is or must be rescinded or returned for any reason whatsoever (including, but not limited to, determination that said payment was a voidable preference or fraudulent transfer under insolvency, bankruptcy or reorganization laws), then the Guarantor's obligations hereunder sha.l, to the extent of the payment rescinded or returned, be deemed to have continued in existence, notwithstanding such previous receipt of payment by the Investor Member, and the Guarantor's obligations hereunder shall continue to be effective or be reinstated as to such payment, all as though such previous payment to the Investor Member had never been made. The provisions of the foregoing sentence shall survive termination of this Guaranty, and shall remain a valid and binding obligation of the Guarantor until satisfied. 6. No Discharge. The Guarantor acknowledges that the Investor Member is a member of the Company. Guarantor agrees that the exercise by the Investor Member, of any of its rights or remedies under the Operating Agreement for Managing Member's failure to fulfill its obligations related to any Recapture Event set forth in Section 5.01(e) or obligations as set forth in Sections 5.05 and 9.05 of the Operating Agreement shall not serve to reduce or discharge the liability of the Guarantor hereunder, except to the extent of any recovery actually realized by the Investor Member in cash; provided, however that the Investor Member shall have no obligation to exercise any of its rights or remedies under the Operating Agreement. The Guarantor waives and releases any claim it may now or hereafter have against the Investor Member based on any theory or cause of action that conflicts with the agreements of the parties set forth in this Section 6. 3 P\AgendnNge AnechmentsAgenda Attachmems\Agenda AnachmemsAg ts-Amend 3009\09-08-09 PhotovolWc Oumamy AW"ment@ DOC 7. Other Indebtedness Subordinated. Any payments or obligations owing under the Operating Agreement to the Managing Member and/or the Guarantor shall be subordinate to the obligations of the Guarantor to the Investor Member under this Guaranty. 8. Waiver and Estoppel. Guarantor hereby grants to the Investor Member, in its absolute discretion and without notice to the Guarantor, the power and authority to deal in any lawful manner with the obligations guaranteed hereby. Without limiting the generality of the foregoing, the Guarantor knowingly waives and agrees that it will be estopped from asserting any argument to the contrary as follows: (a) any and all notice of acceptance of this Guaranty or of the creation, renewal or accrual of any of the obligations or liabilities hereunder indemnified against, either now or in the future; (b)protest, presentment, demand for payment, notice of default or nonpayment, notice of protest or default; (c)any and all notices or formalities to which it may otherwise be entitled, including, without limitation, notice of the granting of any indulgences or extensions of time of payment of any of the liabilities and obligations hereunder and hereby indemnified against; (d)any promptness in making any claim or demand hereunder; (e) the defense of the statute of limitations in any action hereunder or in any action for the collection of amounts payable hereunder; (f) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other person or persons or the failure to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other person or persons; (g) any defense based upon an election of remedies which destroys or otherwise impairs any or all of the subrogation rights of the Investor Member or the right of the Investor Member to proceed against any other person for reimbursement, or both; (h)any duty or obligation of the Investor Member to perfect, protect, retain or enforce any security for the payment of amounts payable by the Guarantor's hereunder or to proceed against any one or more persons as a condition to proceeding against the Guarantor; and (i) to the extent it may be waived, any principle or provision of law, statutory or otherwise, which is or might be in conflict with the terms and provisions of this Guaranty. No delay or failure on the part of the Investor Member in the exercise of any right or remedy against any other party against whom the Investor Member may have any rights shall operate as a waiver of any agreement or obligation contained herein, and no single or partial exercise by the Investor Member of any rights or remedies hereunder shall preclude other or further exercise thereof or other exercise of any other right or remedy. No provision of this Guaranty or right of the Investor Member hereunder can be waived, nor can the Guarantor be released from its obligations hereunder, except by a writing duly executed by the Investor Member. This Guaranty may not be modified, amended, revised, revoked, terminated, changed or varied in any way whatsoever, except by the express terms of a writing duly executed by the Guarantor and the Investor Member. 9. Notices. All notices, demands, requests or other communications to be sent by one party to the other hereunder or required by law shall be in writing, shall be sent by certified mail, postage prepaid, return receipt requested, or by overnight courier, or by hand delivery, and shall be effective as of the date on which it is received or would have been received but for the refusal of the addressee to accept delivery, and shall be addressed as follows: 4 P.\Agendaa4 Sg AtuchmemsUgenda Anachmmrs\A,e Ava<hmcntsUgrmtsAmend 3009\W9 8 Phmvohuc Guaranty ABeemem GaA DGC To the Investor Member: Greystone Renewable Energy Fund 2008-A LLC Attention: Matthew James 152 West 57"'Street, 60th Floor New York,NY 10019 Facsimile: (212) 649-9701 And copies to: Nixon Peabody, LLP Attention: Michael J. Goldman 401 Ninth Street,NW, Suite 900 Washington, DC 20004 Facsimile: (202) 585-8080 Greystone Renewable Energy Manager LLC c/o Greystone & Co., Inc. Carnegie Hall Tower Attention: General Counsel 152 West 57th Street, 60th Floor �-� New York,NY 10019 Facsimile: (212) 896-9155 To Guarantor: Redevelopment Agency of the City of San Bernardino Attention: Emil A. Marzullo, Interim Executive Director 201 North"E" Street, Suite 301 San Bernardino,California 92401 Phone: (909) 663-1044 Facsimile: (909) 888-9413 And a copy to: Lewis Brisbois Bisgaard& Smith, LLP Attention: Tim Sabo 650 East Hospitality Lane, Suite 600 San Bernardino, California 92408 Phone: (909) 387-1130 Facsimile: (909) 387-1138 By giving to the other party hereto at least fifteen (15) business days' written notice thereof in accordance with the provisions hereof, the parties hereto shall have the right from time to time to change their respective addresses and each shall have the right to specify as its address any other address within the United States of America. 5 P:UgendaatAgenda AnachmentsUgenda Attachr a \Agenda AtwlaneatsiA r e-AmeM 7WM 49-0 Photovoltaic Guaranty Agreement p afl.DOC 10. Assignment. If the Interest of the Investor Member is transferred and the person - to whom the Interest is transferred is admitted as a member to the Company, all in accordance with the Operating Agreement, this Guaranty shall automatically be assigned therewith , to such person without the need of any express assignment, and, when so assigned, the Guarantor shall be bound as set forth herein to the assignee(s) without in any manner affecting the Guarantor's liability. 11. Governing Law. This Guaranty shall be governed by and construed in accordance with the laws of the State of California (the "State") without regard to principles of conflicts of law, except to the extent that any of such laws may now or hereafter be preempted by Federal law, in which case, such Federal law shall so govern and be controlling. In any action brought under or arising out of this Guaranty, the Guarantor hereby consents to the jurisdiction of any competent court within the State and consent to service of process by any means authorized by the laws of the State. Except as provided in any other written agreement now or at any time hereafter in force between the Investor Member and the Guarantor, this Guaranty shall constitute the entire agreement of Guarantor with the Investor Member with respect to the subject matter hereof, and no representation, understanding, promise or condition concerning the subject matter hereof shall be binding upon the Investor Member and the Guarantor unless expressed herein. 12. Duration. The Guarantor hereby agrees that this Guaranty, shall remain in full force and effect at all times hereinafter until paid and/or performed in full subject to the limitations and expiration periods set forth herein, notwithstanding any action or undertakings by or against the Investor Member and the Guarantor in any proceeding in the United States Bankruptcy Court, including, without limitation, any proceeding relating to valuation of collateral, election or imposition of secured or unsecured claim status upon claims by the Investor Member pursuant to any Chapter of the Bankruptcy Code or the Rules of Bankruptcy Procedure, as same may be applicable from time to time. Except as otherwise provided in Section 2(b) hereof, the Guarantor acknowledges that it may not be possible to determine the existence of liability hereunder until after such time as the IRS is prohibited from assessing additional tax liability against the Investor Member for any year in which it claimed Tax Credits, which may be at a point in time subsequent to when the Investor Member has disposed of its Company Interest. 13. Miscellaneous. (a) Should any one or more provisions of this Guaranty be determined to be illegal or unenforceable, all other provisions shall nevertheless be effective. (b) When the context and construction so require, all words used in the singular herein shall he deemed to have been used in the plural, and the masculine shall include the feminine and neuter and vice versa. The word "person," as used herein, shall include any individual, company, firm, association, limited liability company, corporation, trust or other legal entity of any kind whatsoever. (c) All headings in this Guaranty are for convenience of reference only and yr are not intended to qualify the meaning of any provision of this Guaranty. 6 P'.U811,d a p.da AnachmmtsUgeMa MacM1mrnuUg<nda Anuhmem V4r.ta ,.d 2009b O38 Phw.v]Wc Gusrm t,Agramem DM.DOC (d) The obligations of the Guarantor contained herein are undertaken solely and exclusively for the benefit of the Investor Member and its permitted successors and assigns, and no other person or entities shall have any standing to enforce such obligations or be deemed to be beneficiaries of such obligations. (e) This Guaranty may be executed in any number of counterparts, each of which shall be effective only upon delivery and thereafter shall be deemed to be an original, and all of which, when taken together, shall be one and the same instrument, with the same effect as if all parties hereto had signed the same signature page. Any signature page of this Guaranty may be detached from any counterpart of this Guaranty without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Guaranty identical in form hereto but having attached to it one or more additional signature pages. (f) Capitalized terms used in this Guaranty and not specifically defined herein shall have the meanings assigned to them in the Operating Agreement dated of even date herewith. [signatures begin on !be following page] 7 P.UV-n AMda AmchmemsWgmWa".hmemsVsgenda AnachmemsUAgrmssAmend 200909 8-0 Phmow]W c G y Ageemem Draft D()C DRAFT IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the date first above written. Guarantor: Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic Dated: By: Emil A. Marzullo, Interim Executive Director Approved as to F nn and Legal Content: Agency Counsq P9Agendas\Agenda Attachments\Agenda Anachments'Agenda Attachmen6\Agrmts-Amend 2009\09-OM9 Photovoltaic Guaranty Agreement Draf,DOC LESSOR DRAFT-AUGUST 25, 2009 PHOTOVOLTAIC SYSTEM SITE LEASE AGREEMENT This PHOTOVOLTAIC SYSTEM SITE LEASE AGREEMENT (the "A�reement" or the "Lease") made and entered into this 8a' day of September, 2009 (the "Effective Date"), by and between REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic, established and existing pursuant to California Health& Safety Code Section 33000, et seq., ("Lessor"), and RDA SOLAR 1, LLC, a California limited liability company (the "Lessee"). Lessor and Lessee are sometimes referred to individually as a"Ear ' and collectively hereinafter as the "Parties." RECITALS A. Lessee is the developer, owner, and operator of solar energy generation equipment and facilities suitable for delivery of electrical energy to be used on the Property identified below, and to be delivered to the Lessor for use at Lessor's business premises. B. Lessor is the owner of(i) certain real property located in San Bernardino County, California more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the "Pro a "), and (ii) structures on the Property consisting of one building, on the rooftop of which solar energy generation equipment will be installed as shown on the site plan as more particularly described on Exhibit B attached hereto and incorporated herein by this reference (the"Premises"). C. Lessee desires to obtain (i) an exclusive lease of the Premises for purposes of constructing, installing, owning and operating Solar Facilities (as defined below) and with the specifications set forth in Exhibit C attached hereto and incorporated herein by this reference, and (ii) an easement over the Property for purposes of transmission, access to and egress from, installation and repair of the Solar Facilities. D. Lessor desires to lease the Premises to Lessee for the purposes set forth in Recital C above and to grant to Lessee such access, light and interconnection easements as necessary for such purposes on the terms and conditions herein contained; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Lessee and Lessor hereby agree as follows: AGREEMENT 1. Definitions. Capitalized terms not otherwise defined herein shall have the meaning set forth below: 1.1 "Access Easement" has the definition set forth in Section 3.1 of this Agreement. P:1 Agendas Agenda AnzchmentsAgenda AnachmentsAgenda AnachmenuUgmts-AmesW 2009109-08A9 Photovoltaic System Site Le Agrtement DRAFf.doc LESSOR DRAFT- AUGUST 25, 2009 1.2 "Commencement Date" means the date of initial commercial operation of the Solar Facilities. 1.3 "Commencement of Construction" or "Commence Construction" means with respect to the Solar Facilities on the Premises, the earlier of the delivery of the Photovoltaic Facilities or any components thereof to the Premises, or the commencement of construction of the Solar Facilities. 1.4 "Day" means business days; that is, days other than state or national holidays and weekends. 1.5 "Environmental Attributes" means any and all environmental benefits, air quality credits, emissions reductions, offsets, and allowances, howsoever entitled, directly or indirectly attributable to the generation from the Solar System and its displacement of conventional energy. Environmental Attributes include but are not limited to: (1) any benefit accruing from the renewable nature of the generation's motive source, (2) any avoided emissions of pollutants to the air, soil or water (such as sulfur oxides (SOx), nitrogen oxides (NOx), and carbon monoxide (CO)), (3) any avoided emissions of carbon dioxide (CO2), methane (CH4) and other greenhouse gases (GHGs) that may contribute to the actual or potential threat of altering the Earth's climate by trapping heat in the atmosphere, (4) any property rights that may exist with respect to the foregoing attributes howsoever entitled, (5) displacements of energy generation by fossil fuel sources, and (6) any reporting rights to these avoided emissions such as Green Tag Reporting Rights. 1.6 "Environmental Incentives" include, but are not limited to, (i) federal, state or local production tax credits associated with the construction or operation of the energy projects; (ii) any other financial incentives in the form of credits, reductions, or allowances associated with the Solar System that are applicable to a local, state or federal income taxation obligation, (iii) grants or subsidies in support of renewable energy, (iv) emission reduction credits encumbered or used by the Solar Facilities for compliance with local, state, or federal operating and/or air quality permits, and all rebates, benefits, reductions, tax deductions, offsets, and allowances and entitlements of any kind, howsoever entitled, resulting from the Environmental Attributes or the installation and operation of the Solar Facilities. 1.7 "Initial Term" shall have the meaning set forth in Section 5 hereof. 1.8 "Interconnection Facilities" means the facilities for connecting the Solar Facilities to the electrical system of the building on which the Solar Facilities are located. 1.9 "Lender" means Sustainable Communities Reinvestment Partnership, Inc., a California non profit corporation. 1.10 "Lessee Indemnitees" means Lessee, its officers, agents and employees. 1.11 "Lessor Indemnitees" means Lessor, its directors, its officers, agents employees, attorneys and volunteers. 2 P 9--d-Ugenda Machmems PM- Mxh..kAg mu-AmeM 2009\09 "PhMldWv System Site Lease Agramem DkA do LESSOR DRAFT - AUGUST 25, 2009 1.12 [Reserved] 1.13 [Reserved] 1.14 "Operations" shall have the meaning set forth in Section 4.1 hereof. 1.15 "Photovoltaic Facilities" shall mean any photoelectric cells designed for the generation of electrical power from solar radiation, including without limitation, the associated support structure, braces, wiring, and related equipment. 1.16 "Solar Facilities" shall have the meaning set forth in Section 4.IN hereof. 1.17 "Renewal Term" shall have the meaning set forth in Section 5 hereof. 1.18 "Taxes" means all real estate or personal property taxes, possessory interest taxes, business or license taxes or fees, service payments in lieu of such taxes or fees, annual or periodic license or use fees, excises, assessments, bonds, levies, fees or charges of any kind which are assessed, levied, charged, confirmed, or imposed by any public authority due to Lessee's occupancy and use of the Premises (or any portion or component thereof). 1.19 "Term" means the Initial Term and one or more Renewal Term, asset forth in Section 5 hereof. 1.20 "Transfer" shall mean the sale, lease, assignment, mortgage, pledge or otherwise alienation or encumbrance of any property, and"Transferred" means the past tense of Transfer. 2. Lease of Premises. Lessor does hereby lease the Premises to Lessee for the Term in accordance with the terms and conditions set forth herein 3. Easements. 3.1 Access Easement. Lessor hereby grants to Lessee, for the Tenn, a non- exclusive easement to access the Premises across or through the Property, including any building or structure below the Premises, passage through which is necessary or convenient to gain access to the Solar Facilities or the Premises (the "Access Easement"). Without limiting the foregoing grant, Lessor covenants that the Access Easement may be used to achieve all the purposes set forth in Section 4 of this Agreement. 3.2 Solar Easement. Lessor hereby grants to Lessee, for the Tenn, a non- exclusive Solar Easement on the Premises, as more specifically set forth in Section 13.2 of this Agreement. 3.3 Notice. Except as may be required by an emergency, Lessee will give Lessor reasonable written or telephonic notice before any entry onto the Property or Premises by Lessee's employees, agents or contractors. In the event of Lessee's entry due to an emergency, Lessee will promptly notify Lessor of its entry and the nature of the emergency. 3 P A g..ditt A,n"Anachmenn'Agenda AaachmentsWgei .Attwh em9Ag tsAmend 2009to 4"Photovoltaic Sygem Site Lax Agreemem DRAFT doe LESSOR DRAFT-AUGUST 25,2009 4. Use of the Property. 4.1 Permitted Uses. Lessee shall have the right to occupy and use the Premises to serve as the site for the Solar Facilities and the use thereof for solar energy conversion, for the collection and transmission of electric power, and for related and incidental purposes and activities (collectively,the "Operations"), including,without limitation: (a) conducting studies of solar energy and other meteorological data; (b) constructing, reconstructing, erecting, installing, improving, replacing, relocating and removing from time to time, and maintaining, using, monitoring and operating, existing, additional or new (i) Photovoltaic Facilities, (ii) electrical transmission and distribution facilities, including without limitation, overhead and underground transmission, distribution or collector lines, circuit breakers, meters, conduit, footings, poles, crossarms, guy lines, anchors, cabling and wires, (iii) overhead and underground control, communications and radio relay systems, (iv) interconnection and/or switching facilities, transformers and inverters, (v) control boxes and computer monitoring hardware, (vi) utility installation, (vii) safety protection facilities, (viii) signs and fences, and (ix) other improvements, fixtures, facilities, machinery and equipment associated or connected with the generation, conversion, storage, switching, metering, step-up, step-down, transmission, distribution, conducting, wheeling, sale or other use or conveyance of electricity (all of the foregoing, including the Photovoltaic Facilities, collectively the "Solar Facilities"); (c) generating, producing, inverting, transforming, and transmitting energy; and (d) undertaking any other lawful activities, whether accomplished by Lessee or a third party authorized by Lessee, that Lessee determines are necessary, helpful, appropriate or convenient in connection with, incidental to, or to accomplish any of the foregoing purposes. 4.2 Lessee's Exercise of Riahts. Lessee may construct and install the Solar Facilities on the Premises in the manner Lessee deems reasonable and appropriate, provided, however, that Lessee will cant' out the activities set forth in this Section 4 in such a manner as will not unreasonably interfere with Lessor's use, operation, or maintenance of the Property. Nothing expressly or impliedly contained in this Agreement shall be construed as requiring Lessee to generate or sell to Lessor any minimum or maximum amount of electrical energy from the Premises. 5. Term. The term of the Lease shall be composed of the Initial Term, and one or more Renewal Terms (collectively, the "Term"). The Lease shall commence on the Effective Date and shall, unless earlier terminated pursuant to Section 15 of this Agreement, terminate twenty (20) years from the Commencement Date (the "Initial Term"). Lessee may extend the term of the Lease for up to two successive terms of five (5) years (each a "Renewal Term"), by delivering notice of such extension to Lessor not less than sixty (60) days prior to the end of the Initial Term and the first Renewal Term, as the case may be. 4 P.Nge.das'Wge.de AtuchmemsUgende A h..MgmWa Artachmen[sUgmtsAmend 3009\09 "Photovoltaic Syrtem Site Lea=Ag ecmem DRA dm LESSOR DRAFT-AUGUST 25,2009 6. Payments to Lessor. Lessee shall pay Lessor as annual rent the sum of one dollar �✓ ($1.00) for each calendar year during the Initial Term and during any Renewal Term of the Lease. The rent for the first calendar year of the Term shall be due and payable on the Effective Date and annually thereafter on the same day and month. 7. Exclusive Rights. Lessee shall have the sole and exclusive right to convert all of the solar resources of, and to conduct the Operations on, the Premises. Lessor shall not grant any rights in the Premises purporting to permit others to conduct the Operations on the Premises in derogation of Lessee's sole and exclusive rights and privileges hereunder. Without the prior written consent of Lessee, Lessor shall not (i) waive any right available to Lessor or grant any right or privilege subject to the consent of Lessor by law or contract, including without limitation any environmental regulation, land use ordinance or zoning regulation, with respect to setback requirements, or other restrictions and conditions respecting the placement of the Solar Facilities on the Premises or (ii) grant, confirm, acknowledge, recognize or acquiesce in any right claimed by any other person to conduct the Operations on the Premises, and Lessor agrees to give Lessee notice of any such claims and to cooperate with Lessee in resisting and disputing such claims. 8. Ouiet Enjoyment. Lessor covenants and agrees that Lessee, provided it remains in compliance with its obligations under this Agreement, shall lawfully and quietly have, hold, occupy and enjoy the System Facilities and the appurtenant rights thereto in accordance with the terms hereof throughout the entire term of this Agreement free from any claim of any entity or person of superior title thereto without hindrance to, interference with or molestation of Lessee's © use and enjoyment thereof, whether by Lessor or any of its agents, employees or independent contractors. 9. Design and Construction of Solar Facilities: Acknowledgment of Lessor. 9.1 Design and Construction. Lessor hereby consents to the construction by the Lessee of the Solar Facilities. Lessee shall provide to Lessor a construction schedule, and Lessee and Lessor shall coordinate construction of the Solar Facilities so as to minimize disruption to the Property and to Lessor's activities thereon. 9.2 Acknowledgment and Warranty By Lessor. Lessor acknowledges that the installation of all or a portion of the Solar Facilities may require physically mounting and adhering the Photovoltaic Facilities to the roof of a building where the Premises is located, or to the ground or a combination thereof. Lessor has provided data to the Lessee concerning the weight bearing capability, construction specifications and condition of the roof and load bearing structures of the Premises and warrants that such data is accurate to the best of Lessor's knowledge. 10. Maintenance of Premises. 10.1 Maintenance. Lessee shall, for the Term of this Agreement, at Lessee's sole cost and expense, maintain the Solar Facilities and all areas of the Premises used by Lessee in Lessee's Operations, in accordance with all applicable laws, rules, ordinances, orders, and regulations of all governmental agencies. i 5 P:UgeM sWAp a Atn emlAge A hmemsV gen Amchmems Agrms-Amend 2009\09-08-N Phrnovolsvc Synem SHE Lease Ageemem DRA doc LESSOR DRAFT-AUGUST 25, 2009 10.2 Clean Condition. Lessee shall not unreasonably clutter the Premises or the Property and shall promptly collect and dispose of any and all of Lessee's refuse and trash. 10.3 Roof Replacement. In the event Lessor deems it necessary to repair or replace the roof or other structure upon which the Solar Facilities is installed, Lessor shall notify Lessee of Lessor's intent to perform said work not less than 60 days prior to the commencement of the work. If the repair or replacement work will require removal of the Solar Facilities or the relocation of the Solar Facilities equipment and support structures to some other portion of the roof or structure upon which the Solar Facilities is installed during the work, Lessee shall remove and replace the Solar Facilities at Lessor's expense except as provided herein. Lessor shall also be responsible for such other costs, lost revenue and expenses incurred by Lessee as a result of any such removal or relocation of the Solar Facilities as are specified in the Solar Power Purchase Agreement (the "Power Purchase Agreement"). The expense of removal or relocation and reinstallation of the Solar Facilities for the purposes of this Section 10.3 shall be based upon the labor rates then in effect for service and maintenance of the Solar Facilities and/or other solar installations subject to contract(s)with Lessee plus costs incurred by Lessee for equipment and materials. 11. Ownership of Improvements. The Solar Facilities shall not be deemed to be permanent fixtures (even if permanently affixed to the Premises) and shall be and remain the sole property of Lessee. Without limiting the generality of the foregoing, Lessor hereby waives any statutory or common law lien that it might otherwise have in or to the Solar Facilities or any part thereof and agrees that, notwithstanding the occurrence of an event of default under this Agreement 1.. beyond all applicable notice and cure periods (including those granted to Lender or its designee), Lessee may remove the Solar Facilities from the Premises. Within the ninety(90)-day period after receipt by Lender of a notice that the Lease has been terminated prior to the expiration date (or such longer time as may be reasonably necessary to remove the Solar Facilities from Lessor's Property), Lender or Lessee may remove the Solar Facilities from the Premises. 12. Security All security measures reasonably necessary, in Lessee's opinion, shall be provided for the Solar Facilities. Such measures may, but not -necessarily will, include warning signs, closed and locked gates, and other measures appropriate and reasonable to protect against damage or destruction of the Solar Facilities or injury or damage to persons or property resulting from the Solar Facilities and Operations. 13. Lessor's Representations and Warranties: No Interference. Lessor represents and warrants to Lessee that there are no circumstances known to Lessor and no commitments to third parties that may damage, impair or otherwise adversely affect the Solar Facilities or their function by blocking sunlight from the Photovoltaic System. Lessor covenants that Lessor has lawful title to the Property and the Premises free and clear of all liens, security interests and encumbrances other than those listed on Exhibit E attached hereto and incorporated herein, and full right to enter into this Agreement and that Lessee shall have quiet and peaceful possession of the Premises throughout the Term of this Agreement. 13.1 No Interference. Lessor hereby agrees, for itself, its agents, employees, representatives, successors and assigns, that it will not initiate or conduct activities that it knows or reasonably should know may damage, impair or otherwise adversely affect the 6 P UgerAas\Agende A hmmb WWa A Cu mtMgerda A=hmems\ 9=s- .M 3009\09-0&09 Phm olW.Symem She Lean Agreement DRAF,. LESSOR DRAFT-AUGUST 25, 2009 Solar Facilities or their functions, including, without limitation, activities that may adversely affect the Photovoltaic Facilities exposure to sunlight. Lessor further covenants for itself, its agents, employees, representatives, successors and assigns that it will not (i)materially interfere with or prohibit the free and complete use and enjoyment by Lessee of its rights granted under this Agreement, (ii)take any action which will materially interfere with the availability and accessibility of solar radiation over and above the Premises, (iii)take any action that will or may materially interfere with the transmission of electric, electromagnetic or other forms of energy to or from the Premises, (iv)take any action that may impair Lessee's access to the Premises for the purposes specified in this Agreement, (v) plant or maintain any vegetation or erect or maintain any structure which will, during daylight, cast a shadow on the Photovoltaic Facilities, or(vi) take any action that may impair Lessee's access to any portion of the Solar Facilities. 13.2 Solar Facilities Property of Lessee; Transfer of Property. Lessor acknowledges and agrees that Lessee is the exclusive owner and operator of the Solar Facilities, that no portion or component of the Solar Facilities is a fixture, and the Solar Facilities may not be Transferred with the fee interest or leasehold rights to the Property (except those leasehold rights granted hereunder). Lessor shall give Lessee at least fifteen (15) days written notice prior to any Transfer of all or any portion of the Property identifying the transferee, the portion of Property to be Transferred and the proposed date of Transfer. Lessor agrees that this Agreement and the easements granted in Section 3 of this Agreement shall run with the land and survive any Transfer of the Property. 13.3 Lessee Rights to Electricity and Environmental Attributes. Lessor acknowledges that Lessee or its affiliate or transferee is the exclusive owner of electricity (kWh) generated by the Solar Facilities and of the Environmental Attributes and Environmental Incentives of and arising from the Solar Facilities. Subject to applicable federal, state, municipal and local laws, statutes, codes, ordinances, regulations, or rules, as amended from time to time (collectively,the "Laws"), without the express written consent of Lessee, Lessor shall not make or publish any statement or notice regarding any Environmental Incentive relating to the Solar Facilities or any Environmental Attribute of the Solar Facilities or the energy output from the Solar Facilities;provided, however that for so long as there is a Power Purchase Agreement in full force and effect between Lessee and Lessor, Lessor . may make such public statements as Lessor deems reasonable and commercially appropriate regarding the use of renewable energy for Lessor's facilities and business operation and such public statements as are required buy applicable Laws. 14. Permits and Governmental Approvals. Lessee shall be responsible for obtaining at its sole cost and expense any governmental approvals necessary for the construction and operation of the Solar Facilities, including but not limited to any zoning variances, building permits, approvals, environmental statements, licenses or authority from any county, state or federal authority (collectively, "Permits") and shall pay all costs associated therewith. Lessor shall cooperate with Lessee as necessary to obtain any governmental approvals, at no cost or expense to Lessee, provided that Lessee shall reimburse Lessor for its reasonable out-of-pocket expense directly incurred in connection with such cooperation. Lessor hereby gives its consent to any action taken by Lessee in applying for any and all Permits Lessee finds necessary or desirable for 7 P NW S\AgeM Arad =U%AgeMa AnachmemsA9e Attic mMgrns .nd 2009 48-0 PhmoMW,Syvem ShI L..Agrzcmm DRAMA. LESSOR DRAFT - AUGUST 25, 2009 the operation of the Solar Facilities, and Lessor hereby appoints Lessee its agent for applying for such Permits. 15. Termination and Abandonment. 15.1 Surrender by Lessee. Subject to Section 17 below, but notwithstanding any other provisions of this Agreement, Lessee shall have the right at any time to quitclaim and surrender to Lessor all of Lessee's right, title and interest in and to the Property and the Premises by executing and delivering to Lessor, or placing on record, a quitclaim and surrendering to Lessor all of the Premises and by paying to Lessor on or before the effective date of such termination a sum equal to all rent and royalties accruing to the time of surrender. 15.2 Abandonment; Lessor's Right to Terminate Agreement. If the Premises are abandoned (as defined below) by Lessee, Lessor shall have the right to terminate this Agreement upon thirty (30) days' prior written notice to Lessee. For the purpose of this Section, "abandonment" shall mean cessation of use of the Solar Facilities for a period of four (4) consecutive months other than as a result of (i) events of Force Majeure, (ii) the expiration of any power purchase agreement between Lessee and; provided, however, that Lessee (including for purposes of this Section 15.2 any assignee of Lessee) shall not actively be pursuing entry into a new agreement for the sale of electrical energy generated by the Solar Facilities, or (iii) loss of transmission or interconnection capabilities theretofore available to the Solar Facilities, if such are deemed necessary for continued operation of the Solar Facility by the Lessee, provided that Lessee shall not actively be pursuing alternate transmission or interconnection capability. Abandonment of the Premises by Lessee shall constitute a default by Lessee hereunder. 15.3 Hold Over. At the end of the Initial Term, or any extension thereof, should Lessee hold over for any reason, it is agreed that in the absence of a written agreement to the contrary, that tenancy shall be from month-to month only and not a renewal of this Agreement, nor an extension for any further Term. Lessee shall pay to Lessor a minimum monthly payment of rent for each month rent in an amount equal to one sixth (1/6t') of the annual payment of rent paid by Lessee for the year prior to the expiration date of this Agreement. 16. Default. 16.1 The occurrence of any of the following shall be an "Event of Default": 16.1.1 The failure by Lessee to pay any rents due and payable hereunder within ten (10) days from receipt of written notice from Lessor that such amounts are due; 16.1.2 The failure by Lessee to perform any of the other terms and conditions of this Lease and fail to remedy the same within forty-five (45) days after receipt of notice from Lessor to do so. 16.2 Remedies in the Event of Default. Upon the occurrence and continuation of any Event of Default by the Lessee hereunder: 8 PMgendas\Agestda AnachmentsUgeMa A[uchme tu\AgesMa Asuchments\A81mt1Amend 3009\09-0&09 Phomvohaic System Site Lease Agreement DRAFT d9c LESSOR DRAFT-AUGUST 25,2009 16.2.1 Lessor may continue this Lease in effect as long as Lessor does not terminate Lessee's right to possession, and Lessor shall have the right to collect rent, plus accrued interest, if any, when due. 16.2.2 Lessor may cure any default by Lessee after Lessee's cure period has expired. If Lessor at any time by reason of Lessee's default, pays any sum or does any act that requires the payment of any sum, the sum paid by Lessor shall be due immediately from Lessee to Lessor as additional rent hereunder,together with any interest due. 16.2.3 Subject to the requirement for notice and right to cure set forth hereinabove, Lessor may terminate Lessee's right to possession of Lessor's Property and the premises upon twenty (20) days prior written notice to Lessee. No act by Lessor other than the giving of such prior written notice to Lessee shall terminate this Lease. (a) Upon termination, and subject to Lessor's compliance with the requirements of applicable laws, Lessor has the right to recover from Lessee the unpaid rent plus interest on overdue amounts plus all other fees, charges and amounts due under the Lease. (b) Lessor shall not terminate this Lease by reason of the nonpayment of rent if Lessee in good faith disputes the amount of rent claimed by Lessor and if, within the period of cure set forth in Section 16.1 above, Lessee pays to Lessor the undisputed portion of such rent, provided that any award in favor of Lessor shall include interest on the amount of unpaid rent at the per annum rate of eight percent (8%). (c) Following Lessor's delivery of a notice of default, which default remains uncured, Lessee may at any time surrender Lessor's Premises to Lessor pursuant to Section 17. 17. Surrender and Restoration. 17.1 Surrender. Upon any termination, surrender, or expiration of this Agreement, Lessee shall remove the Solar Facilities and all of Lessee's improvements and shall peaceably deliver up to Lessor possession of the Premises and the Property or any part thereof, and other rights granted by this Agreement, and shall execute, at Lessor's request, a quitclaim deed evidencing such surrender and conveyance, to be recorded in the records of San Bernardino County, California. 17.2 Restoration. Upon any termination, surrender or expiration of this Agreement, Lessee shall restore the Premises and the Property to its approximate condition at the Effective Date, taking into account ordinary and reasonable wear and tear since the Effective Date, and shall repair any damage, to the extent reasonably practicable, to the Premises and/or the Property as a result of any removal of the Solar Facilities under this Section. Said restoration shall be completed within one year of the termination, surrender, or expiration. 18. Insurance. 9 P.WgeiWZSWgenda AtuchmentsUgenda AaachmrntaUgesda AnachmentsUg u-Amend 2009',09-09-09 Photovolwc System Site L.Agrtement DRA dac LESSOR DRAFT-AUGUST 25, 2009 18.1 Liability Insurance. At all times during the Term of this Agreement, Lessee shall, at its own cost and expense, obtain and maintain in effect: (a) comprehensive general liability insurance, covering all aspects of Lessee's Operations, naming Lessor as an additional insured thereunder, with bodily injury and property damage coverage, of at least Two Million Dollars ($2,000,000) combined single limit, and (b) environmental impairment liability insurance of at least Two Million Dollars ($2,000,000)combined single limit. 18.2 Builders' Risk [Reserved] 18.3 Workers Compensation. Lessee shall have workers compensation insurance covering its employees, and shall require any of Lessee's subcontractors engaging in Operations to have workers compensation insurance as required by law. 18.4 Certificates. Lessee shall provide to Lessor certificates evidencing such coverages prior to Lessee commencing Operations and thereafter once per year during the Term. 18.5 Increased Insurance Policy Covera¢e. In the event that Lessor determines, in Lessor's reasonable judgment, that the limits of the public liability, property damage, or products liability insurance or any other insurance policy whether or not then carved by Lessee are materially less than the amount or type of insurance typically carried by owners or tenants of properties located in San Bernardino, California, which are similar to and operated for similar purposes as the Property and the Premises, Lessor may elect to require Lessee to increase the amount of specific coverage, change the type of policy carved, or both. If Lessor so elects, Lessee shall be notified in writing of the specific change in policy amount or type required and shall have thirty (30) days after the date of Lessor's notice to effect the change I amount or type of policy. Any adjustment pursuant to this subsection may be made not more often than every two(2)years unless otherwise agreed by Lessor and Lessee. 19. Liability: Indemnity. 19.1 Lessee Indemnity. Lessee shall indemnify,defend,protect and hold harmless Lessor, its parent, directors officers, agents and employees (the "Lessor Indemnitees") of and from any claim, demand, lawsuit, or action or liability of any kind for injury to or death of persons, including, but not limited to, employees of Lessee or Lessor, and damage or destruction of property, including, but not limited to,property of Lessee, any utility company or Lessor, or other loss or damage incurred by Lessor, arising out of(a) grossly negligent acts or omissions or wilful misconduct of Lessee, its agents, officers, directors, employees or contractors; or (b) the material breach by Lessee of any of its obligations under this Agreement. The obligation to indemnify shall extend to and encompass all costs inured by Lessor and any Lessor Indemnitee in defending such claims, demands, lawsuits or actions, including, but not limited to, attorney, witness and expert witness fees, and any other litigation related expenses. Lessee's obligations pursuant to this Section 19.1 shall not extend to claims, demands, lawsuits or actions for liability to the extent attributable to the negligence or wilful misconduct of Lessor, the Lessor Indemnitees, or their respective contractors, successors or assigns, or to the acts of third parties. Lessee shall pay any cost 10 P UgeMsstAgeMa AnachmentsWgeMe A tttz mtsNgenda A hmentsVt emtaA eeM 2009\09-"PhMowttaic System Site Lax Agreemem DRA dm LESSOR DRAFT-AUGUST 25,2009 that may be incurred by Lessor or the Lessor Indemnitees in enforcing this indemnity, including reasonable attorneys' fees, court costs, witness fees and consultant fees. 19.2 Lessor Indemnity. Lessor shall indemnify, defend and hold harmless Lessee, its officers, agents and employees (the "Lessee Indemnitees") of and from any claim, demand, lawsuit, action of any kind or liability for injury to or death of persons, including, but not limited to, employees of Lessee or of Lessor, and damage or destruction of property, including, but not limited to, property of either Lessee or of Lessor, or other loss or damage incurred by Lessee, arising out of. (i) grossly negligent acts or omissions or wilful misconduct of Lessor, its agents, officers, directors, employees or contractors; or (ii) the material breach by Lessor of any of its obligations under this Agreement. The obligation to indemnify shall extend to and encompass all costs incurred by Lessee and any Lessee Indemnitee in defending such claims, demands, lawsuits or actions, including, but not limited to, attorneys, witness and expert witness fees, and any other litigation related expenses. Lessor's obligations pursuant to this Section 19.2 shall not extend to claims, demands, lawsuits or actions for liability to the extent attributable to the negligence or willful misconduct of Lessee, the Lessee Indemnitees, or their respective contractors, successors or assigns, or the acts of third-parties. Lessor shall pay any cost that may be incurred by Lessee or the Lessee Indemnitees in enforcing this indemnity, including reasonable attorneys' fees, court costs, witness fees and consultant fees. 19.3 No Consequential Damages. Notwithstanding any provision in this Agreement to the contrary, neither Lessee nor Lessor shall be liable to the other for incidental, consequential, special, punitive or indirect damages, including without limitation, loss of use, loss of profits, cost of capital or increased operating costs, arising out of this Agreement whether by reason of contract, indemnity, strict liability, negligence, intentional conduct,breach of warranty or from breach of this Agreement. The foregoing provision shall not prohibit Lessee or Lessor from seeking and obtaining general contract damages or equitable relief for a breach of this Agreement. 19.4 Hazardous Materials. 19.4.1 Lessor's Obligations. Lessor shall not violate, and shall indemnify Lessee for, from and against any claims, costs, damages, fees or penalties arising from a violation (past, present or future) by Lessor or Lessor's agents or contractors of, any federal, state or local law, ordinance, order, or regulation relating to the generation, manufacture, production, use, storage, release or threatened release, discharge, disposal, transportation or presence of any substance, material or waste which is now or hereafter classified as hazardous or toxic, or which is regulated under current or future federal, state or local laws or regulations, on or under the Premises. 19.4.2 Lessee's Obligations. Lessee shall not violate, and shall indemnify Lessor against, any claims, costs, damages, fees or penalties arising from a violation by Lessee or Lessee's agents or contractors of any federal, state or local law, ordinance, order, or regulation relating to the generation, manufacture, production, use, storage, release or threatened release, discharge, disposal, transportation or presence of any substance, material or waste which is now 11 P:lAgendasWgeMa AnachmenuUgeMa AnachmrntsUgeika AnachmentsWSrn¢s M 3009\09-05-09 Phl,voJtaic Syvem SO L.Ageemem DkA dac LESSOR DRAFT-AUGUST 25, 2009 or hereafter classified as hazardous or toxic, or which is regulated under current or future federal, state or local laws or regulations, on or under the Property. 19.5 Waiver. The express remedies and measures of damages provided for in this Agreement shall be the sole and exclusive remedies for a party hereunder and all other remedies or damages at law or in equity are hereby waived. 20. Taxes. 20.1 Payment of Taxes. Lessee shall pay all real estate or personal property taxes, other ad valorem taxes arising from or relating to Lessee's leasehold interest, business or license taxes or fees, service payments in lieu of such taxes or fees, annual or periodic license or use fees, excises, assessments, bonds, levies, fees or charges of any kind which are assessed, levied, charged, confirmed, or imposed by any public authority due to Lessee's occupancy and use of the Premises (or any portion or component thereof) ("Taxes"), except (i) real and personal property taxes relating to the Property on which the Premises is situated, (ii)inheritance or estate taxes imposed upon or assessed against the Premises, or any part thereof or interest therein, (iii) taxes computed upon the basis of the net income or payments derived from the Premises by Lessor or the owner of any interest therein, and(iv)taxes, fees, service payments, excises, assessments, bonds, levies, fees or charges of any kind which are adopted by any public authority after the date hereof. Lessor shall pay all amounts in connection with clauses (i), (ii), (iii) and(iv) of this Section 20.1. 20.2 Lessee's Rieht to Contest. Lessee may contest the legal validity or amount of any Taxes, assessments, or other charges for which it is responsible under this Agreement, and may institute such proceedings as it considers necessary. Lessee shall bear all expenses in pursuing such contest or proceeding. With respect to any Taxes for which Lessee is responsible that may constitute a lien on the Permises and/on the Property, Lessee shall promptly pay such Taxes unless the proceeding in which it contests such tax shall operate to prevent or stay the collection of the Taxes so contested or unless Lessee removes any such lien by bonding or otherwise. Lessor agrees to render to Lessee all reasonable assistance, at no cost or expense whatsoever to Lessor, in contesting the validity or amount of any Taxes, assessments or charges, including joining in the signing of any reasonable protests or pleadings which Lessee may reasonably deem advisable to file; provided, however, that Lessee shall reimburse Lessor for its reasonable attorneys' fees incurred in connection with providing such assistance. 21. Assienment. Except as provided in this Section 21, neither party shall have the right to assign any of its rights, duties or obligations under this Agreement without the prior written consent of the other party, which consent may not be unreasonably withheld or delayed. Lessee may assign any of its rights, duties or obligations under this Agreement (i) to one or more of its affiliates, (ii) to one or more third parties in connection with a sale-and-leaseback or other financing transaction, (iii)to any present or future purchaser of the power generated by the Solar Facilities, (iv)to any person or entity succeeding to all or substantially all of the assets of Lessee, or (v)to a successor entity in a merger or acquisition transaction. For the sake of clarity, the Parties hereby acknowledge that the sale or transfer by Lessee to a third party of equity ownership interests in Lessee, including any such sale or transfer that results in a change in 12 P:\AgendmWgenda Artachmems\Agenda A hments\Agende A tt,,ientMU is Amend 3009\N498 Photovoluic System Site Leeu A®eemem DRAF dw LESSOR DRAFT-AUGUST 25,2009 control of the Lessee, shall not constitute a transfer or assignment of this Agreement that requires *� the prior written consent of the Lessor, and no consent of the Lessor shall be required in connection with or as a condition to any sale or transfer of equity ownership interests in the Lessee. 22. Consent to Loan. 22.1 Consent. Lessee or an assignee may from time to time, without the prior written consent of Lessor, encumber the interest of Lessee or an assignee in this Agreement and the rights granted hereunder by one or more loans, provided that any loan and all rights acquired under it shall be subject to each and all of the covenants, conditions and restrictions stated in this Lease and to all rights and interests of Lessor and further provided, that Lessee or an assignee shall promptly upon the execution of any loan deliver a true copy thereof to Lessor. Without limiting the generality of the foregoing nothing contained in such loan shall release or be deemed to relieve Lessee from full and faithful observance and performance of the terms, covenants and conditions herein contained to be observed and performed by Lessee or from any liability for the non-observance or non-performance of any of the terms and conditions hereof, nor be deemed to constitute a waiver of any rights of Lessor hereunder, except as expressly provided for herein. 22.2 Statement by Lessor. At the request of Lessee or a Lender, Lessor (a) shall execute, acknowledge and deliver to such Lessee or Lessee's Lender, a written statement declaring: (i) either that the Agreement is unmodified and in full force and effect, or the manner in which the Agreement had been modified and whether the Agreement as so modified is in full force and effect; (ii) the dates to which Lessee's monetary obligations hereunder have been paid in advance; (iii) whether Lessee is or is not then in default hereunder; and (iv) whether any past defaults have been fully cured and (b) enter into an estoppel and consent agreement recognizing the rights of the Lenders of Lessee as may be reasonably requested by Lenders of Lessee. 22.3 Statement by Lessee. At the request of Lessor, Lessee shall execute, acknowledge and deliver to Lessor a written statement declaring: (i) either that this Agreement is unmodified and whether the Agreement as so modified is in full force and effect; (ii)whether the Lessor is or is not then in default hereunder; and (iii) whether any past defaults of Lessor have been fully cured. 22.4 Protection of Lender. Any Lender to Lessee hereunder shall for so long as its loan is in existence and until the lien thereof has been extinguished be entitled to the following protections: 22.4.1 No Amendment. Lessor shall not agree to any amendment, mutual termination or modification or accept any surrender of this Agreement, nor shall any such amendment, termination, modification or surrender be effective, without the written consent of such Lender. 22.4.2 Notice of Default. Notwithstanding any default by Lessee under this Agreement, Lessor shall have no right to terminate this Lease unless and until Lessor shall first 13 P.WgenduU,enda AnachmemsUgenda AtuchmMn Agenda AnachmemsAg is-Amend 2009 09-08-09 Phg o]Wc Syaem Site Lesu Ageemem DR dx LESSOR DRAFT-AUGUST 25, 2009 have given such Lender a second written notice of Lessee's default and failure to cure same within the period(s) specified in Section 16 and thereafter afforded such Lender an opportunity to cure such default within the period(s) specified in Section 16 and such Lender shall have failed to effect the cure of such default within the period(s) specified in Section 16. 22.4.3 Right to Perform. Such Lender shall have the right at any time to pay any rent due hereunder and to perform or cause to be performed any other obligation of Lessee at or within the time such payment or performance is required under this Agreement. Nothing in this Agreement shall be construed to obligate such Lender to cure any default of Lessee. 22.4.4 Riaht to Cure. Such Lender shall be entitled to remedy any default under this Lease in the manner and on the same terms as granted to Lessee in Section 16 of this Lease. 22.4.5 Foreclosure. If Lessee's First Lender (meaning the Lender that recorded first in time) becomes the assignee of this Lease by means of foreclosure or transfer in lieu thereof, such First Lender shall be personally liable under this Agreement only for the period First Lender remains a Lessee hereunder, provided that any subsequent assignee or Lessee shall assume and agree to be bound by all the terms and conditions of this Agreement. 22.4.6 Termination of Agreement. If this Agreement shall terminate prior to the expiration of the Term for any reason, including without limitation by operation of law or because of a failure to cure a default pursuant to Section 16, Lessor shall enter into a new agreement in recordable form with the Lender that holds the most senior lien against Lessee's leasehold estate and demands such new agreement within thirty (30) days following receipt of Lessor's notice of termination. Such new agreement shall contain the same terms and provisions as this Agreement. Lessor's obligation to enter into a new agreement as provided herein is conditioned upon the cure of any and all defaults under this Agreement other than defaults, if any, that are unique to the defaulting Lessee which cannot be cured by the payment of money or the acts of the curing Lender. 22.4.7 Assianment Following Foreclosure or Termination. In the event (i) that any Lender acquires the Lessee's leasehold estate hereunder following judicial foreclosure of, or exercise of the power of sale contained in, any Loan Agreement or by a Transfer in lieu thereof, or (ii) any Lender enters into a new lease, such Lender shall have the right to assign or transfer this Agreement or any such new lease, one time only, to any person or entity without Lessor's consent, provided notice of such assignment is given to Lessor. The liability of such Lender under this Lease or any such new lease shall cease upon the assignment,provided that the assignee agrees to perform each and every obligation of the Lessee under this Agreement or such new agreement and that there is no default under this Agreement or any such new agreement. The right of such Lender to assign this Agreement or any such new lease as provided herein is conditioned upon the cure of any and all defaults under this Agreement as of the time of such assignment. 22.5 Nondisturbance. Lessor shall timely perform all of its covenants contained in any and every obligation which is the subject of an encumbrance on Lessor's Property prior to the encumbrance effected hereby. On request by Lessee, Lessor shall obtain a Nondisturbance, Recognition and Attomment Agreement substantially in the form attached 14 P.Agendas`Agenda Attachments Agenda Auzchments%Agenda Amchments'Ag tsA end3009\09- "PhmOvOtWc Sptcm Site I Agrament DRAPi.dm LESSOR DRAFT-AUGUST 25,2009 hereto and incorporated herein as Exhibit D. or such other form approved by Lessee and the beneficiary of any such prior encumbrance providing that in the event of enforcement of the encumbrance or lien, the validity and effectiveness of this Agreement shall be maintained as an encumbrance on the Property according to its terms. 23. Estonoel Certificate. From time to time, upon written request by Lessee, Lessor shall provide within fifteen (15) days thereafter an estoppel certificate attesting, to the knowledge of Lessor, of Lessee's compliance with the terms of this Agreement or detailing any known issues of noncompliance. 24. Notice. 24.1 Writine. All notices given or permitted to be given hereunder shall be in writing. 24.2 Delivery. Notice is considered given either (i) when delivered in person to the recipient named below, (ii) when sent by email or facsimile with reasonable electronic confirmation of receipt by the addressee, or (iii)three (3) business days after deposit in the United States mail-in a sealed envelope or container, postage and postal charges prepaid, addressed by name and addressed to the party or person intended as follows: Notice to Lesser: RDA SOLAR I, LLC 201 North"E" Street, Suite #301 San Bernardino, CA 92401 With copies to: Nixon Peabody LLP Attention: Michael J. Goldman 401 Ninth Street,N.W., Suite 900 Washington, D.C. 20004 And Law Office of Mark D. Foster 4835 LBJ Freeway, Suite 424 Dallas, Texas 75244 Notice to Lessor: San Bernardino Redevelopment Agency Attention: Emil A. Marzullo, Interim Executive Director 201 North"E" Street, Suite#301 San Bernardino, California 92401-1520 Phone: (909) 663-1044 With copies to: 15 P.Ngeml.sNgend.Amchm,MMwM.M.chnl. sU,,.d.nrc,cnmeirtewgrmtsanena 2oosM4"Phmovoluic System site L A® mm DRAFr.doc LESSOR DRAFT-AUGUST 25, 2009 Lewis, Brisbois, Bisgaard& Smith, LLP Attention: Tim Sabo 650 East Hospitality Lane, Suite 600 San Bernardino, CA 92408-3508 Phone: (909)387-1130 And: Greystone Renewable Energy Manager LLC c/o Greystone & Co.Inc. Carnegie Hall Tower Attention: General Counsel 152 West 57a' Street, 60s'Floor New York,NY 10019 Facsimile: (212)649-9701 24.3 . Change of Recipient or Address. Either party may, by notice given at any time or from time to time, require subsequent notices to be given to another individual person, whether a party or an officer or representative, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change. 25. Further Assurances. Upon the receipt of a written request from the other Party, each Party shall execute such additional documents, instruments and assurances and take such additional actions as are reasonably necessary and desirable to carry out the terms and intent hereof. Neither Party shall unreasonably withhold, condition or delay its compliance with any reasonable request made pursuant to this section. 26. No Partnership or Sale. Nothing contained in this Agreement shall be deemed or construed by the Parties or by any third person to create the relationship of principal and agent, partnership,joint venture, buyer and seller of electrical energy, or any other association between Lessor and Lessee, other than the relationship of Lessor and lessee. 27. Miscellaneous. 27.1 Waiver. The waiver by either party of any breach of any term, condition, or provision herein contained shall not be deemed to be a waiver of such term, condition, or provision, or any subsequent breach of the same, or any other term, condition, or provision contained herein. 27.2 Headings. The headings in this Agreement are solely for convenience and ease of reference and shall have no effect on interpreting the meaning of any provision of this Agreement. 27.3 Memorandum. Lessor and Lessee agree to execute a memorandum of this Agreement, substantially in the form attached as Exhibit F hereto and incorporated herein, and to record same upon the request of either party. 16 P.WSendas'.Agenda Anachmen&Agelda An¢hments�Agenda PW-t -[Wc Synem Sill Lee.Agrtemens DRAFr.d. LESSOR DRAFT-AUGUST 25, 2009 27.4 Amendments. This Agreement may be amended only in writing signed by Lessee and Lessor or their respective successors in interest. 27.5 Disputes and Choice of Law; Attorneys Fees. In the event of a dispute arising from or related to this Agreement, the prevailing party in any proceeding to enforce this Agreement or to resolve the dispute shall be entitled to recover its expenses incurred in the proceeding, including reasonable attorneys' fees, court costs, witness fees and consultant fees. This Agreement shall be construed in accordance with the laws of the State of California without regard to its conflict of laws principles. 27.6 Force Maieure. Notwithstanding any other provision of this Agreement, Lessee's obligations under this Agreement (exclusive of payments of rent) shall be suspended and excused, and the Term and any other time periods set forth herein shall continue and be Initial for a like period of time, while (a) Lessee is hindered or prevented, in whole or in part, from (i) conducting Operations or (ii) complying with any term, covenant, condition or provision of this Agreement, by: strikes, lockouts or other labor disturbances; delays in transportation; inability to secure labor or materials in the open market; acts of God or the elements, including without limitation, fire, flood, washout, perils at sea, lightning, earthquake or accidents; conditions arising out or attributable to acts of war, civil disturbances or riots; acts or failures to act of Lessor; the effects of any law, statute, decree, ordinance, rule or regulation; the failure of any governmental authority to issue any permit, entitlement, approval or authorization within a reasonable period of time after an application for the same has been submitted; or any other matter or condition beyond the reasonable control of Lessee, whether or not similar to the matters or conditions herein specifically enumerated. 27.7 Counterparts. This Agreement may be executed in one or more counterparts, which shall together constitute one and the same agreement. Facsimile signatures shall have the same effect as original signatures, and each party consents to the admission in evidence of a facsimile or photocopy of this Agreement in any court or arbitration proceedings between the parties. 27.8 Binding Effect. This Agreement and the rights, privileges, duties and obligations of the Parties as set forth herein shall inure to the benefit of and be binding upon each of the Parties,together with their respective successors and assigns. 27.9 Entire Agreement. This Agreement represents the frill and complete agreement between the Parties with respect to the subject matter contained herein and supersedes all prior written and oral agreements between the Parties with respect to said subject matter. SIGNATURE PAGES FOLLOW 17 P:\Agendu\Agenda ArtachmengWgeMa Attachmenn\Agenda Annhmcnta'A,.,sA d 3009\09A Photovoltaic S,9.Site Isaac Ag,eemem DRAFTAd LESSOR DRAFT-AUGUST 25, 2009 IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year first above written. LESSEE: RDA Solar I, LLC, a California limited liability company By: Sustainable Communities Reinvestment Partnership, LLC, a California limited liability company Its: Managing Member Date By: Name: Title: LESSOR Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic Date By: Emil A. Marzullo, Interim Executive Director Approved as to Form and Legal Content: Agency Cou 18 P:Agendas'Age�a Anachments\Agcnda AnachmentAAgeMa A hmiiw'%A [t An.tW 2009\09-0M Phm,,ethic System Site Lea.Agrxment DRAFf.doc LESSOR DRAFT-AUGUST 25, 2009 EXF UIT A (LEGAL DESCRIPTION OF PROPERTY) PARCEL NO. 1A: THAT PORTION OF BLOCK 13,CITY OF SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 PAGE 1 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE EAST LINE OF "E" STREET WITH THE NORTH LINE OF "2ND" STREET AS DESCRIBED IN THAT CERTAIN DEED TO THE CITY OF SAN BERNARDINO RECORDED MAY 21, 1970 IN BOOK 7447, PAGE 275 OFFICIAL RECORDS OF SAID COUNTY; THENCE SOUTH 890 56'00"EAST ALONG SAID NORTH LINE, 111.67 FEET; THENCE NORTH 450 04' 11"EAST,9.90 FEET; THENCE NORTH 00 04' 11"EAST, 112.21 FEET; THENCE NORTH 150 04' 11"EAST, 100.46 FEET; THENCE NORTH 00 04' 11"EAST, 111.75 FEET TO A LINE PARALLEL WITH AND DISTANT 225.92 FEET SOUTHERLY MEASURED AT RIGHT ANGLES,FROM THAT CERTAIN COURSE RECITED AS "NORTH 890 55'49" WEST 206.48 FEET"IN THE BOUNDARY DESCRIBED IN DEED TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, CALIFORNIA RECORDED JUNE 4, 1970 IN BOOK 7455 PAGE 214 OFFICIAL RECORDS OF SAID COUNTY; THENCE NORTH 890 55'49" WEST ALONG SAID PARALLEL LINE 137.19 FEET TO SAID EAST LINE OF "E" STREET; THENCE SOUTH 3°57'51" WEST ALONG SAID EAST LINE 116.07 FEET; THENCE CONTINUING ALONG SAID EAST LINE SOUTH 00 02'25" EAST 212.20 FEET TO THE POINT OF BEGINNING. ALSO KNOWN AS PARCEL NO.27 OF PARCEL MAP NO. 688 IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 25 OF PARCEL MAPS, PAGES 47 TO 58 INCLUSIVE, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. Exhibit A LESSOR DRAFT-AUGUST 25,2009 PARCEL NO. 1B: TOGETHER WITH AN EASEMENT FOR VEHICULAR INGRESS AND EGRESS OVER THAT PORTION OF SAID BLOCK 13 DESCRIBED AS FOLLOWS: COMMENCING AT SAID INTERSECTION OF THE EAST LINE OF "E" STREET WITH THE NORTH LINE OF "2ND" STREET; THENCE SOUTH 890 56'00" EAST ALONG SAID NORTH LINE 111.67 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 450 04' 11" EAST ALONG THE EAST LINE OF THE ABOVE DESCRIBED PARCEL 9.90 FEET; THENCE CONTINUING ALONG SAID EAST LINE NORTH 00 04' 11" EAST, 112.21 FEET; THENCE CONTINUING ALONG SAID EAST LINE NORTH 150 04' 11" EAST, 100.46 FEET; THENCE CONTINUING ALONG SAID EAST LINE NORTH 00 04' 11"EAST, 11.75 FEET TO THE NORTH LINE OF SAID PARCEL; THENCE SOUTH 890 55'49" EAST ALONG THE EASTERLY PROLONGATION OF SAID NORTH LINE 30.50 FEET; THENCE SOUTH 00 04' 11"WEST, 138.74 FEET; C,. THENCE SOUTH 150 04' 11" WEST, 113.98 FEET; THENCE SOUTH 00 04' 11"WEST,79.16 FEET TO SAID NORTH LINE OF "2ND" STREET; THENCE NORTH 890 57'00" WEST,34.00 FEET TO THE POINT OF BEGINNING. END OF LEGAL DESCRIPTION V Exhibit A i LESSOR DRAFT-AUGUST 25,2009 EXHIBIT B (DIAGRAM OF THE PREMISES) Exhibit B LESSOR DRAFT-AUGUST 25, 2009 EXHIBIT C (SOLAR FACILITIES SPECIFICATIONS) Equipment and Services uanti Description I SatCon PVS-250(208) 1392 Sanyo HIP-195BA3 1 Energy Recommerce Inc. Monitoring Solution and Kiosk 1 SunLink Mounting System Related Services and Deliverables. ❑ California State Sales Tax ❑ 20 Year Manufacturer's Performance Warranty on Solar Modules ❑ 10-Year Warranty on All Inverters and Transformers(if built into inverter) ❑ 15-Year OEM SunLink Support System Warranty ❑ SPG 10-Year Installation Warranty with Annual System Inspections(10 years) ❑ PV Panels and Inverters with a Minimum Total Rating of 245.215 AC-CEC kilowatts ❑ All Electrical Switch Gear Preparation to Accept Solar System ❑ All Electrical Connectors,Cabling&Components Nee. for a Complete Solar System ❑ Complete Electrical Engineering Services Including Diagrams © ❑ Complete Structural Engineering Services Including Diagrams ❑ Planning and Design Review Services Including All Meetings with Building Department ❑ All Building Permit and Utility Processing Costs ❑ Utility Interconnect Agreement Processing Services ❑ Rebate Application Processing&Coordination ❑ Incentive Program Inspections Coordination ❑ Local Building and Electrical Inspections Coordination ❑ Secure Storage Facility at Job Site for All PV System Equipment and Supplies ❑ Project Manager/Foreman ❑ Lavatory Facilities at Job Site, if needed ❑ System Operation and Safety Manuals and Customer Training ❑ Final PV System"As-Built" schematics ❑ Final Cleanup to"broom clean"condition Exhibit C LESSOR DRAFT- AUGUST 25, 2009 EXHIBIT D (NONDISTURBANCE, RECOGNITION AND ATTORNMENT AGREEMENT) Exhibit D LESSOR DRAFT-AUGUST 25, 2009 EXHIBIT E EXISTING LIST OF LIENS, SECURITY INTERESTS AND OTHER ENCUMBRANCES ON THE PROPERTY AND THE PREMISES Exhibit E LESSOR DRAFT-AUGUST 25, 2009 EXHIBIT F FORM OF MEMORANDUM OF LEASE PHOTOVOLTAIC SYSTEM SITE LEASE AGREEMENT Exhibit F