Common use of Construction Events of Default Clause in Contracts

Construction Events of Default. Subject to the notice and cure provision set forth below, any Construction Event of Default shall give EPE the unconditional right, in its sole discretion, to: (i) either terminate the Agreement or complete construction of the Facility at the expense of and for the account of Seller and operate the Facility during the Interim Period or beyond pursuant to Section 12.12 below, (ii) draw upon or otherwise negotiate and liquidate the Security Fund, and (iii) in the event EPE elects not to terminate this Agreement under Section 12.1(i) above, negotiate changes to this Agreement. EPE shall provide notice to Seller thirty (30) Days prior to taking any of the actions set forth in Section 12.1(i) above, specifying the Construction Event(s) of Default triggering such action(s), and shall not take such action(s) if Seller has remedied or is making significant progress towards remedying the specified Construction Event(s) of Default within the thirty (30) Day period following EPE’s notification; provided, however, such notice period shall be fifteen (15) Days with respect to Sections 12.1(B) and (C) herein. The following shall constitute Construction Events of Default: (A) Seller becomes insolvent, becomes a debtor in any bankruptcy or receivership proceedings, or dissolves as a legal business entity; (B) Any representation or warranty made by Seller is false or misleading in any material respect, and Seller fails to comply or make significant progress towards compliance with such representation or warranty within thirty (30) Days after a demand by EPE to do so; (C) Seller fails to comply with any other material terms and conditions of the Agreement within sixty (60) Days after a demand by EPE to do so; (D) Seller fails to meet any Construction Milestone, unless such failure is due to the action(s) or inaction(s) of EPE or is otherwise excused under this Agreement; (E) Seller fails to diligently pursue construction after the Construction Commencement Date; (F) The Facility fails, for reasons other than Force Majeure, to meet the Commercial Operation Milestone, unless Seller (i) notifies EPE ninety (90) Days prior to the Commercial Operation Milestone of a Revised Commercial Operation Milestone that is no later than December 31, 2011, as may be extended pursuant to Sections 4.4(i)-(ii) of this Agreement, and (ii) pursuant to Section 10.3 of this Agreement, agrees to obtain and deliver replacement solar RECs to EPE for the quantity of solar RECs that EPE notifies Seller EPE requires, up to the ****=Confidential treatment has been requested for the redacted portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as ****. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission. quantity of solar RECs associated with the Committed Solar Energy for the period between the Commercial Operation Milestone and the Revised Commercial Operation Milestone, in order for EPE to meet its obligations under NMPRC Rule 572 as a result of EPE’s acceptance of the Revised Commercial Operation Milestone; (G) The Facility fails to meet the Commercial Operation Milestone or the Revised Commercial Operation Milestone; or (H) The Facility is transferred by Seller without the requisite consent of EPE, as provided in Section 18.6 of this Agreement.

Construction Events of Default. If any one or more of the following events (each a “Construction Event of Default”) shall occur: (a) the Completion Date shall fail to occur, for any reason, on or prior to the Construction Period Termination Date, subject to extension for Force Majeure Events; (b) at any time, (i) the remaining Available Commitment of the Lessor is not sufficient to (A) complete construction of the New Improvements (Fremont 3E) in all material respects in accordance with the Plans and Specifications and the Construction Budget (in each case, as supplemented or amended pursuant to Section 3.2) on or before the Construction Period Termination Date or (B) subject to any increase in Commitments permitted under Section 3.4(e) of the Participation Agreement, pay all Construction Costs or (ii) subject to any extension of the Construction Period permitted under Section 3.4(f) of the Participation Agreement, construction of the New Improvements (Fremont 3E) cannot be completed for any reason on or prior to the Construction Period Termination Date; (c) Constructor fails to apply Advances to the payment of Construction Costs or comply with the covenants set forth in Sections 2.7(d), (p) or (t); (d) Constructor fails to comply with the covenants set forth in Sections 2.7(a)(i), (b), (f), (k), (o) or (v) and such failure shall remain uncured for a period of ten (10) days after the earlier of the date Constructor has Actual Knowledge or receives notice thereof from Lessor; (e) Construction fails to comply with the covenants set forth in Sections 2.7(a) (other than as set forth in clause (d) above), (c), (g), (h), (i), (s) or (u), and such failure shall remain uncured for a period of forty-five (45) days after the earlier of the date Constructor has Actual Knowledge or receives notice thereof from Lessor; (f) Constructor fails in any material respect to observe or perform any other term, covenant or condition of this Agreement (except those specified in clauses (a) through (e) above), and such failure shall remain uncured for a period of ninety (90) days after the earlier of the date Constructor has Actual Knowledge or receives notice thereof from Lessor; or (g) any Event of Default under the Lease shall have occurred and be continuing; then, in any such event, the Lessor may, in addition to the other rights and remedies provided for in this Article V, immediately terminate this Agreement (in the sole discretion of the Lessor) by giving the Constructor written notice of such termination and, upon the giving of such notice, this Agreement shall terminate. Upon termination of this Agreement, all rights of the Constructor and all obligations of the Lessor under this Agreement shall cease. Subject to Section 5.3(c) hereof, the notice Constructor shall pay upon demand all reasonable costs, expenses, losses, expenditures and cure provision set forth belowdamages (including, without limitation, reasonable attorneys’ fees) incurred by or on behalf of the Lessor in connection with any Construction Event of Default and such obligations shall give EPE survive the unconditional right, in its sole discretion, to: (i) either terminate the Agreement or complete construction termination of the Facility at the expense of and for the account of Seller and operate the Facility during the Interim Period or beyond pursuant to Section 12.12 below, (ii) draw upon or otherwise negotiate and liquidate the Security Fund, and (iii) in the event EPE elects not to terminate this Agreement under Section 12.1(i) above, negotiate changes to this Agreement. EPE Notwithstanding the foregoing, the Constructor shall provide notice have the right to Seller thirty (30) Days prior to taking cure any of the actions set forth in Section 12.1(i) above, specifying the Construction Event(s) Event of Default triggering such action(s)by purchasing, and shall not take such action(s) if Seller has remedied or is making significant progress towards remedying the specified Construction Event(s) of Default within the thirty (30) Day period following EPE’s notification; provided, however, such notice period shall be fifteen (15) Days with respect to Sections 12.1(B) and (C) herein. The following shall constitute Construction Events of Default: (A) Seller becomes insolvent, becomes a debtor in any bankruptcy or receivership proceedings, or dissolves as a legal business entity; (B) Any representation or warranty made by Seller is false or misleading in any material respect, and Seller fails to comply or make significant progress towards compliance with such representation or warranty within thirty (30) Days after a demand by EPE to do so; (C) Seller fails to comply with any other material terms and conditions of the Agreement within sixty (60) Days after a demand by EPE to do so; (D) Seller fails to meet any Construction Milestone, unless such failure is due to the action(s) or inaction(s) of EPE or is otherwise excused under this Agreement; (E) Seller fails to diligently pursue construction after the Construction Commencement Date; (F) The Facility fails, for reasons other than Force Majeure, to meet the Commercial Operation Milestone, unless Seller (i) notifies EPE ninety (90) Days prior to the Commercial Operation Milestone of a Revised Commercial Operation Milestone that is no later than December 31, 2011, as may be extended pursuant to Sections 4.4(i)-(ii) of this Agreement, and (ii) pursuant to Section 10.3 of this Agreement, agrees to obtain and deliver replacement solar RECs to EPE for the quantity of solar RECs that EPE notifies Seller EPE requires, up to the ****=Confidential treatment has been requested for the redacted portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as ****. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission. quantity of solar RECs associated with the Committed Solar Energy for the period between the Commercial Operation Milestone and the Revised Commercial Operation Milestone, in order for EPE to meet its obligations under NMPRC Rule 572 as a result of EPE’s acceptance of the Revised Commercial Operation Milestone; (G) The Facility fails to meet the Commercial Operation Milestone or the Revised Commercial Operation Milestone; or (H) The Facility is transferred by Seller without the requisite consent of EPE, as provided in Section 18.6 of this Agreement.

Construction Events of Default. Subject If any one or more of the following events (each a “Construction Event of Default”) shall occur: (a) the Construction Agent fails to apply, or cause to be applied, the proceeds of any Construction Draw or any funds paid to the Construction Agent by or on behalf of the City, as the case may be, within ten (10) days after the receipt of the same in a manner consistent with the requirements of the Operative Documents and as specified in any applicable Disbursement Request Form, to the payment of costs of constructing, renovating, installing, equipping, and otherwise improving the Project; (b) following the giving of a Termination Notice pursuant to any Termination Event, the Construction Agent shall fail to pay any amounts that become due as the result thereof, and such failure continues for five (5) Business Days; (c) the Construction Agent shall commit or perform any act constituting fraud, misapplication of funds, intentionally illegal acts, or willful misconduct in connection with the performance of its obligations under this Agreement or any other Operative Document to which it is a party; (d) the filing by Construction Agent of any petition for dissolution or liquidation of Construction Agent, or the commencement by the Construction Agent of a voluntary case under any applicable bankruptcy, insolvency or other similar law for the relief of debtors, foreign or domestic, now or hereafter in effect, or Construction Agent shall have consented to the entry of an order for relief in an involuntary case under any such law, or the appointment of or taking possession by a receiver, custodian or trustee (or other similar official) for the Construction Agent or any substantial part of its property, or a general assignment by the Construction Agent for the benefit of its creditors, or the Construction Agent shall have taken any corporate action in furtherance of any of the foregoing; or the filing against the Construction Agent of an involuntary petition in bankruptcy that results in an order for relief being entered or, notwithstanding that an order for relief has not been entered, the petition is not dismissed within Ninety (90) days of the date of the filing of the petition, or the filing under any law relating to bankruptcy, insolvency or relief of debtors of any petition against the Construction Agent that either (i) results in a finding or adjudication of insolvency of the Construction Agent or (ii) is not dismissed within Ninety (90) days of the date of the filing of such petition; (e) the construction, renovation, installation, equipping, and improvement of Project is not completed on or before the Final Completion date, or the Construction Agent fails to comply with the provisions of subsection 4.1(a) for thirty (30) days following written notice from the City; (f) the occurrence of any event designated as an “Event of Default” under the Project Completion Guaranty; (g) the Construction Agent shall fail to maintain insurance as required by the provisions of subsection 4.1(j) and cure provision set forth belowsuch failure continues for ten (10) days following written notice or the Construction Agent shall fail to perform as required by the provisions of subsection 4.1(k) and such failure continues for five (5) business days following written notice; or (h) the Construction Agent shall breach in any material respect any of its representations or warranties under this Agreement or any other Operative Document to which it is a party or shall fail to observe or perform any material term, covenant or condition of this Agreement or any other Operative Document to which it is a party (other than as described in subsections (a) through (g) of this Section 7.1) and such breach or failure continues for five (5) Business Days following written notice; then, in any such event, the City may, in addition to the other rights and remedies provided for in this Agreement, terminate this Agreement in accordance with Section 6.3 and require the Construction Agent to make a Termination Payment in accordance with that Section; provided, in the case of a failure or breach described in subsections (f) or (h), such failure or breach, shall not constitute a Construction Event of Default shall give EPE so long as the unconditional right, Construction Agent gives notice as defined in its sole discretion, to: (i) either terminate Section 9.1 of the Agreement or complete construction of to the Facility at the expense of and for the account of Seller and operate the Facility during the Interim Period or beyond pursuant to Section 12.12 below, (ii) draw upon or otherwise negotiate and liquidate the Security Fund, and (iii) in the event EPE elects not to terminate this Agreement under Section 12.1(i) above, negotiate changes to this Agreement. EPE shall provide notice to Seller City within thirty (30) Days prior days of its intention to taking any of the actions set forth in Section 12.1(i) above, specifying the Construction Event(s) of Default triggering cure such action(s), and shall not take such action(s) if Seller has remedied failure or is making significant progress towards remedying the specified Construction Event(s) of Default within the thirty (30) Day period following EPE’s notificationbreach; provided, however, that if such notice period shall failure is other than payment of money and is of such a nature that it cannot be fifteen (15) Days with respect to Sections 12.1(B) and (C) herein. The following shall constitute Construction Events of Default: (A) Seller becomes insolvent, becomes a debtor in any bankruptcy or receivership proceedings, or dissolves as a legal business entity; (B) Any representation or warranty made by Seller is false or misleading in any material respect, and Seller fails to comply or make significant progress towards compliance with corrected within such representation or warranty within thirty (30) Days day period, institutes curative action within such thirty (30) day period, diligently pursues such action to completion and cures such failure within a reasonable period, not to exceed one year, after a demand such thirty (30) day period. The Construction Agent shall pay all reasonable costs and expenses incurred by EPE to do so; (C) Seller fails to comply with any other material terms and conditions or on behalf of the Agreement within sixty (60) Days after a demand by EPE to do so; (D) Seller fails to meet any Construction MilestoneCity, unless such failure is due to the action(s) or inaction(s) including without limitation reasonable fees and expenses of EPE or is otherwise excused under this Agreement; (E) Seller fails to diligently pursue construction after the Construction Commencement Date; (F) The Facility failscounsel, for reasons other than Force Majeure, to meet the Commercial Operation Milestone, unless Seller (i) notifies EPE ninety (90) Days prior to the Commercial Operation Milestone of a Revised Commercial Operation Milestone that is no later than December 31, 2011, as may be extended pursuant to Sections 4.4(i)-(ii) of this Agreement, and (ii) pursuant to Section 10.3 of this Agreement, agrees to obtain and deliver replacement solar RECs to EPE for the quantity of solar RECs that EPE notifies Seller EPE requires, up to the ****=Confidential treatment has been requested for the redacted portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as ****. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission. quantity of solar RECs associated with the Committed Solar Energy for the period between the Commercial Operation Milestone and the Revised Commercial Operation Milestone, in order for EPE to meet its obligations under NMPRC Rule 572 as a result of EPE’s acceptance any Construction Event of the Revised Commercial Operation Milestone; (G) Default. The Facility fails Construction Agent acknowledges that its obligations to meet the Commercial Operation Milestone or the Revised Commercial Operation Milestone; or (H) The Facility is transferred by Seller without the requisite consent of EPEmake such payments shall be absolute and unconditional under any and all circumstances and shall be paid and performed, as provided in Section 18.6 of this Agreementthe case may be, without notice or demand and without any abatement, reduction, diminution, set-off, defense, counterclaim or recoupment whatsoever is provided.

Construction Events of Default. If any one or more of the following events (each a “Construction Event of Default”) shall occur: (a) the Completion Date shall fail to occur, for any reason, on or prior to the Construction Period Termination Date or Construction Agent suspends its Construction of the Facility for a period of thirty (30) days or longer; (b) subject to Construction Agent’s right to request an extension of the Completion Date or increase of the amount of Available Commitment under the Participation Agreement, at any time, (i) the remaining Available Commitment of the Participants is not sufficient to (A) Complete the Facility on or before the Construction Period Termination Date or (B) pay all Construction Costs or (ii) Construction of the Facility in accordance with this Agreement and the other Operative Documents cannot be completed for any reason on or prior to the Construction Period Termination Date; (c) Construction Agent fails to apply Advances to the payment of Construction Costs; (d) any Cubic Person commits any fraud, misapplication of funds, illegal acts or willful misconduct in any way relating to the Leased Property, the Overall Transaction or that results in a Material Adverse Effect; (e) Construction Agent shall fail, or fail to cause General Contractor and/or Developer, as applicable, to maintain insurance as required by Section 2.7(d) hereof; (f) Construction Agent shall fail in any respect to observe or perform any other term, covenant or condition of this Agreement (except those specified in clauses (a) through (e) above), and such failure shall remain uncured for a period of thirty (30) days after the earlier of the date Construction Agent has actual knowledge thereof or receipt of written notice thereof by Construction Agent; or (g) any Event of Default shall have occurred and be continuing; then, in any such event, the Administrative Agent acting upon the direction of the Required Participants may, in addition to the other rights and remedies provided for in this Article V and under the Lease, immediately terminate this Agreement by giving Construction Agent written notice of such termination, and upon the giving of such notice, this Agreement shall terminate provided, however, that this Agreement shall terminate immediately without notice and the aggregate outstanding Lease Balance, any Break Amount and all other amounts payable by Construction Agent hereunder, shall become immediately due and payable without demand therefor, upon the occurrence of an Event of Default described in paragraphs (h) or (i) of Article XVII of the Lease. Upon termination of this Agreement, all rights of Construction Agent and all obligations of Owner under this Agreement shall cease. Subject to Section 5.3(c) hereof, Owner may demand that the notice aggregate outstanding Lease Balance, any Break Amount and cure provision set forth belowall other amounts payable by Construction Agent hereunder to be immediately due and payable and Owner shall be entitled to recover from Construction Agent, and Construction Agent shall pay upon such demand, all costs, expenses, losses, expenditures and damages (including, without limitation, attorneys’ fees and expenses) incurred by or on behalf of Owner in connection with any Construction Event of Default and such obligations shall give EPE the unconditional right, in its sole discretion, to: (i) either terminate the Agreement or complete construction of the Facility at the expense of and for the account of Seller and operate the Facility during the Interim Period or beyond pursuant to Section 12.12 below, (ii) draw upon or otherwise negotiate and liquidate the Security Fund, and (iii) in the event EPE elects not to terminate this Agreement under Section 12.1(i) above, negotiate changes to this Agreement. EPE shall provide notice to Seller thirty (30) Days prior to taking survive any of the actions set forth in Section 12.1(i) above, specifying the Construction Event(s) of Default triggering such action(s), and shall not take such action(s) if Seller has remedied or is making significant progress towards remedying the specified Construction Event(s) of Default within the thirty (30) Day period following EPE’s notification; provided, however, such notice period shall be fifteen (15) Days with respect to Sections 12.1(B) and (C) herein. The following shall constitute Construction Events of Default: (A) Seller becomes insolvent, becomes a debtor in any bankruptcy or receivership proceedings, or dissolves as a legal business entity; (B) Any representation or warranty made by Seller is false or misleading in any material respect, and Seller fails to comply or make significant progress towards compliance with such representation or warranty within thirty (30) Days after a demand by EPE to do so; (C) Seller fails to comply with any other material terms and conditions of the Agreement within sixty (60) Days after a demand by EPE to do so; (D) Seller fails to meet any Construction Milestone, unless such failure is due to the action(s) or inaction(s) of EPE or is otherwise excused under this Agreement; (E) Seller fails to diligently pursue construction after the Construction Commencement Date; (F) The Facility fails, for reasons other than Force Majeure, to meet the Commercial Operation Milestone, unless Seller (i) notifies EPE ninety (90) Days prior to the Commercial Operation Milestone of a Revised Commercial Operation Milestone that is no later than December 31, 2011, as may be extended pursuant to Sections 4.4(i)-(ii) of this Agreement, and (ii) pursuant to Section 10.3 of this Agreement, agrees to obtain and deliver replacement solar RECs to EPE for the quantity of solar RECs that EPE notifies Seller EPE requires, up to the ****=Confidential treatment has been requested for the redacted portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as ****. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission. quantity of solar RECs associated with the Committed Solar Energy for the period between the Commercial Operation Milestone and the Revised Commercial Operation Milestone, in order for EPE to meet its obligations under NMPRC Rule 572 as a result of EPE’s acceptance of the Revised Commercial Operation Milestone; (G) The Facility fails to meet the Commercial Operation Milestone or the Revised Commercial Operation Milestone; or (H) The Facility is transferred by Seller without the requisite consent of EPE, as provided in Section 18.6 termination of this Agreement.