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Trade Secret
<br />required assignment to the Utility, Customer owns all RECs.
<br />For purposes of this Agreement, RECs include all attributes of
<br />an environmental or other nature that are created or otherwise
<br />arise from the Energy System, including without limitation tags,
<br />certificates or similar projects or rights associated with solar
<br />energy as a "green" or "renewable" electric generation
<br />resource. RECs shall also include any other environmental
<br />attribute intended to be transferred to the Utility under the Utility
<br />Agreement.
<br />5. Term. The term (the "Term") of this Agreement shall begin on
<br />the date that Final Project Completion occurs and shall expire
<br />on the date that is the 20year anniversary of the Project's Final
<br />Project Completion Date.
<br />6. Late Charge/Costs of Collection. In the event Customer fails
<br />to make any Power Payment when due, Customer agrees that
<br />the greater of $50, or interest due based on an interest rate not
<br />to exceed the lesser of one and one-half percent (1.50%) per
<br />month or the highest rate permitted by law for commercial
<br />transactions, may be charged as a late charge on a monthly
<br />basis on the amount of any Power Payment remaining unpaid
<br />more than ten (10) days after it is due from the due date until
<br />paid in full. In addition, Customer agrees to pay Tenant's
<br />attorney's fees and costs of collection, including expert witness
<br />fees, whether a lawsuit is commenced or not commenced, and
<br />Customer's liability for attorneys' fees and costs of collection,
<br />including expert witness fees, extends to any appeals.
<br />7. Grant of Security Interest. In order to secure the payment
<br />and performance of all of Customer's liabilities, obligations and
<br />covenants under this Agreement or the Facility Lease,
<br />Customer hereby grants to Tenant a security interest in the
<br />Energy System, together with all attachments, accessories or
<br />replacement parts and labor placed upon the Energy System
<br />and proceeds thereof. Upon the request of Tenant, Customer
<br />shall promptly obtain a subordination agreement in favor of
<br />Tenant from any third -party lienholder who may have a lien in
<br />the Energy System. Tenant's security interest and other rights
<br />under this Section shall be extinguished upon the later of
<br />termination of this Agreement and the Facility Lease and
<br />performance of all of Customer's obligations hereunder and
<br />thereunder, and Tenant shall execute and file any evidence of
<br />such extinguishment reasonably requested by Customer.
<br />8. Insurance. Customer shall keep the Energy System insured
<br />against loss by fire, theft, hail and wind and such other hazards
<br />as required by the Facility Lease. The loss, injury or destruction
<br />of the Energy System shall not release Customer from making
<br />all power payments described in Schedule A.
<br />9. Events of Default. Each of the following shall constitute an
<br />event of default ("Event of Default"):
<br />a. Customer shall fail to make any undisputed payment to
<br />Tenant when due hereunder, Tenant has notified the
<br />Customer of such failure, and the failure has continued
<br />without cure by Customer or written waiver by Tenant for
<br />a period of thirty (30) days after the notice of failure,
<br />b. Customer shall breach any representation, warranty or
<br />covenant contained in this Agreement in any material
<br />respect, Tenant has notified Customer of the breach, and
<br />the breach has continued without cure by Customer or
<br />written waiver by Tenant for a period of thirty (30) days
<br />after the notice of breach,
<br />c. Customer shall cease to do business, become insolvent,
<br />make an assignment for the benefit of creditors or file any
<br />petition under bankruptcy, reorganization, insolvency or
<br />moratorium law, or any other lawfor the relief of debtors,
<br />d. Any involuntary petition shall be filed under any bankruptcy
<br />statute against Customer or any receiver, trustee, or
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<br />similar official shall be appointed to take possession of the
<br />properties of Customer unless such petition or
<br />appointment ceases to be in effect within thirty (30) days
<br />of such filing or appointment, or
<br />e. The Customer fails to comply with any of its obligations
<br />under any of Customer's agreements with the Utility.
<br />The Customer's
<br />recommission the
<br />loss.
<br />10. Remedies.
<br />failure or refusal to repair and
<br />Energy System following a casualty
<br />a. If an Event of Default shall occur, Tenant may, at its option,
<br />exercise any one or more of the following remedies:
<br />i. Declare all amounts due or to become due under this
<br />Agreement immediately due and payable,
<br />ii. Recover any additional damages and expenses
<br />sustained by Tenant by reason the Event of Default,
<br />iii. Enforce the security interest granted hereunder, in
<br />which event Customer agrees to make the Energy
<br />System available to Tenant at a place or places
<br />acceptable to Tenant and Tenant shall have the right
<br />to take possession of the Energy System without legal
<br />process for which purpose Tenant may enter any
<br />premises where the Energy System may be found
<br />without legal process and without breaching the
<br />peace, provided that in such case the fair market
<br />value of the Energy System shall offset any amounts
<br />due under this Agreement,
<br />iv. Retain all payments made by Customer as liquidated
<br />damages for the non-performance of this Agreement,
<br />for use of the Energy System and for depreciation
<br />thereof, and
<br />V. Exercise any other remedies available under law,
<br />including those under Article 9 of the UCC.
<br />In the event the Energy System is sold, foreclosed on, or
<br />repossessed in the manner provided herein or by law and
<br />the fair market value of the Energy System is not sufficient
<br />to pay the amount due under this Agreement, Customer
<br />agrees to pay immediately to Tenant such deficiency. In
<br />the event the Energy System is sold, foreclosed on, or
<br />repossessed in the manner provided herein or by law and
<br />the fair market value of the Energy System exceeds the
<br />amountthat Customer is required to pay Tenant under this
<br />Agreement, Tenant agrees to pay immediately to
<br />Customer such excess.
<br />c. The remedies provided herein shall be cumulative and
<br />may be exercised singularly, concurrently or successively
<br />with and in addition to all other remedies in law or equity.
<br />If either Party fails to perform any of its obligations under
<br />this Agreement, the other Party may (but need not) at any
<br />time thereafter perform such obligation, and the expenses
<br />incurred in connection therewith shall be payable in full by
<br />the nonperforming Party upon demand. In addition, the
<br />nonperforming Party agrees to pay the other Party's
<br />reasonable attorney's fees and costs of collection in
<br />pursuing any remedies.
<br />11. Annual Enerav Production Not Guaranteed. THE
<br />PARTIES UNDERSTAND AND AGREE THE ANNUAL
<br />ENERGY PRODUCTION FROM THE ENERGY
<br />SYSTEM MAY VARY FROM ANNUAL PROJECTIONS
<br />FOR REASONS BEYOND THE PARTIES CONTROL
<br />INCLUDING WITHOUT LIMITATION SEASON
<br />WEATHER VARIATIONS, ROUTINE AND NOW
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