Common use of Delivery of Bloom Systems Clause in Contracts

Delivery of Bloom Systems. (a) Each Ordered System shall be delivered to the applicable Site no more than ten (10) days before and no more than sixty (60) days after the requested delivery date specified in the applicable Purchase Order. Each Safe Harbor System shall be delivered to the applicable Site no more than sixty (60) days after the request for delivery of such Safe Harbor System by Buyer and in such a manner that a Grant is expected to be available for the applicable Site. (b) Delivery of each Ordered System shall be DDP (Incoterms 2010) to the Site specified in the relevant Purchase Order, in accordance with the Delaware Uniform Commercial Code then in effect. Title to each Ordered System, except for title to any Safe Harbor Equipment which Buyer holds title to as of the date hereof, shall pass to Buyer upon Seller’s delivery of such Ordered System at the relevant Site, and such title shall be good and marketable and free of all Liens, except as provided in Section 2.2(f). Except for the Safe Harbor Equipment (with respect to which Buyer has the risk of loss or damage as of the date hereof), from and after the Delivery Date of each Ordered System all risk of loss or damage to such Ordered System shall be borne by Buyer. (c) To the extent any Ordered System has not achieved Commencement of Operations within [***] days of the Delivery Date for such Ordered System (other than as a result of a Force Majeure Event, except that failure to satisfy any of the conditions set forth in Sections 2.7(v), (w), (x), or (y) of the ECCA shall not be deemed a Force Majeure Event), then Buyer shall have the ongoing right until such requirements are met to elect that such Ordered System be removed from its Site and delivered to Seller at Seller’s expense in an AS IS condition and that Seller promptly (but in no event later than [***] days thereafter) (i) refund such Ordered System’s purchase deposit under Section 2.2(a)(i) to Buyer, with all such refunded amounts being deposited by Seller into a separate control account of Buyer having Diamond State Generation Holdings, LLC as the secured party, (ii) restore that portion of the Site which was improved to accept the installation of such removed Ordered System and (iii) to the extent any such Ordered System contains Safe Harbor Equipment, use commercially reasonable efforts to install or use that Safe Harbor Equipment in another Bloom System located or to be located at the Site. (d) To the extent any Ordered System has not achieved Commencement of Operations within [***] months of payment of the applicable purchase deposit under Section 2.2(a)(i), Seller shall promptly (but in no event later than [***] days thereafter) (i) refund such Ordered System’s purchase deposit to Buyer, with all such refunded amounts being deposited by Seller into a separate control account of Buyer having Diamond State Generation Holdings, LLC as the secured party and (ii) to the extent any such Ordered System contains Safe Harbor Equipment, use commercially reasonable efforts to install or use that Safe Harbor Equipment in another Bloom System located or to be located at the Site. (e) To the extent that Seller has failed to comply with any of Seller’s obligations under the Letter Agreement (including, if so required by the State of Delaware, posting the [***] Confidential Treatment Requested security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first Bloom System), Buyer shall have the right to suspend any Purchase Orders (and payments with respect thereto) under this Agreement until such noncompliance is cured to the satisfaction of the State of Delaware. (f) In the event that as of December 31, 2012, Buyer reasonably determines that Seller will be unable to achieve Commencement of Operations for at least 5 MW of Bloom Systems by the first Guaranteed Initial Delivery Date (as defined in the QFCP-RC Tariff), then prior to Buyer paying any amounts toward Bloom Systems for which Purchase Orders have been placed with Seller after December 31, 2012, Buyer shall have received assurance from Seller reasonably acceptable to Buyer that (i) Seller is reasonably likely to achieve such installed capacity by March 31, 2013 or (ii) the Tariff will remain available for the output of Bloom Systems achieving Commencement of Operations after such Guaranteed Initial Delivery Date, as well as those Bloom Systems installed prior to March 31, 2013 if such installed Nameplate Capacity is less than 5 MW.

Delivery of Bloom Systems. (a) Each Ordered System shall be delivered to the applicable Site no more than ten (10) days before and no more than sixty (60) days after the requested delivery date specified in the applicable Purchase Order. Each Safe Harbor System shall be delivered to the applicable Site no more than sixty (60) days after the request for delivery of such Safe Harbor System by Buyer and in such a manner that a Grant is expected to be available for the applicable Site. (b) Delivery of each Ordered System shall be DDP (Incoterms 2010) to the Site specified in the relevant Purchase Order, in accordance with the Delaware Uniform Commercial Code then in effect. Title to each Ordered System, except for title to any Safe Harbor Equipment which Buyer holds title to as of the date hereof, shall pass to Buyer upon Seller’s delivery of such Ordered System at the relevant Site, and such title shall be good and marketable and free of all Liens, except as provided in Section 2.2(f). Except for the Safe Harbor Equipment (with respect to which Buyer has the risk of loss or damage as of the date hereof), from and after the Delivery Date of each Ordered System all risk of loss or damage to such Ordered System shall be borne by Buyer. (c) To the extent any Ordered System has not achieved Commencement of Operations within [***] ninety (90) days of the Delivery Date for such Ordered System (other than as a result of a Force Majeure Event, except that failure to satisfy any of the conditions set forth in Sections 2.7(v), (w), (x), or (y) of the ECCA shall not be deemed a Force Majeure Event), then Buyer shall have the ongoing right until such requirements are met to elect that such Ordered System be removed from its Site and delivered to Seller at Seller’s expense in an AS IS condition and that Seller promptly (but in no event later than [***] ninety (90) days thereafter) (i) refund such Ordered System’s purchase deposit under Section 2.2(a)(i) to Buyer, with all such refunded amounts being deposited by Seller into a separate control account of Buyer having Diamond State Generation Holdings, LLC as the secured party, (ii) restore that portion of the Site which was improved to accept the installation of such removed Ordered System and (iii) to the extent any such Ordered System contains Safe Harbor Equipment, use commercially reasonable efforts to install or use that Safe Harbor Equipment in another Bloom System located or to be located at the Site. (d) To the extent any Ordered System has not achieved Commencement of Operations within [***] six (6) months of payment of the applicable purchase deposit under Section 2.2(a)(i), Seller shall promptly (but in no event later than [***] ninety (90) days thereafter) ) (i) refund such Ordered System’s purchase deposit to Buyer, with all such refunded amounts being deposited by Seller into a separate control account of Buyer having Diamond State Generation Holdings, LLC as the secured party and (ii) to the extent any such Ordered System contains Safe Harbor Equipment, use commercially reasonable efforts to install or use that Safe Harbor Equipment in another Bloom System located or to be located at the Site. (e) To the extent that Seller has failed to comply with any of Seller’s obligations under the Letter Agreement (including, if so required by the State of Delaware, posting the [***] Confidential Treatment Requested security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first Bloom System), Buyer shall have the right to suspend any Purchase Orders (and payments with respect thereto) under this Agreement until such noncompliance is cured to the satisfaction of the State of Delaware. (f) In the event that as of December 31, 2012, Buyer reasonably determines that Seller will be unable to achieve Commencement of Operations for at least 5 MW of Bloom Systems by the first Guaranteed Initial Delivery Date (as defined in the QFCP-RC Tariff), then prior to Buyer paying any amounts toward Bloom Systems for which Purchase Orders have been placed with Seller after December 31, 2012, Buyer shall have received assurance from Seller reasonably acceptable to Buyer that (i) Seller is reasonably likely to achieve such installed capacity by March 31, 2013 or (ii) the Tariff will remain available for the output of Bloom Systems achieving Commencement of Operations after such Guaranteed Initial Delivery Date, as well as those Bloom Systems installed prior to March 31, 2013 if such installed Nameplate Capacity is less than 5 MW.

Delivery of Bloom Systems. (a) Each Ordered System shall be delivered to the applicable Site no more than ten (10) days before and no more than sixty (60) days after the requested delivery date specified in the applicable Purchase Order. Each Safe Harbor System shall be delivered to the applicable Site no more than sixty (60) days after the request for delivery of such Safe Harbor System by Buyer and in such a manner that a Grant is expected to be available for the applicable Site. (b) Delivery of each Ordered System shall be DDP (Incoterms 2010) to the Site specified in the relevant Purchase Order, in accordance with the Delaware Uniform Commercial Code then in effect. Title to each Ordered System, except for title to any Safe Harbor Equipment which Buyer holds title to as of the date hereof, shall pass to Buyer upon Seller’s delivery of such Ordered System at the relevant Site, and such title shall be good and marketable and free of all Liens, except as provided in Section 2.2(f). Except for the Safe Harbor Equipment (with respect to which Buyer has the risk of loss or damage as of the date hereof), from and after the Delivery Date of each Ordered System all risk of loss or damage to such Ordered System shall be borne by Buyer. (c) To the extent any Ordered System has not achieved Commencement of Operations within [***] ninety (90) days of the Delivery Date for such Ordered System (other than as a result of a Force Majeure Event, except that failure to satisfy any of the conditions set forth in Sections 2.7(v), (w), (x), or (y) of the ECCA shall not be deemed a Force Majeure Event), then Buyer shall have the ongoing right until such requirements are met to elect that such Ordered System be removed from its Site and delivered to Seller at Seller’s expense in an AS IS condition and that Seller promptly (but in no event later than [***] ninety (90) days thereafter) (i) refund such Ordered System’s purchase deposit under Section 2.2(a)(i) to Buyer, with all such refunded amounts being deposited by Seller into a separate control account of Buyer having Diamond State Generation Holdings, LLC as the secured party, (ii) restore that portion of the Site which was improved to accept the installation of such removed Ordered System and (iii) to the extent any such Ordered System contains Safe Harbor Equipment, use commercially reasonable efforts to install or use that Safe Harbor Equipment in another Bloom System located or to be located at the Site. (d) To the extent any Ordered System has not achieved Commencement of Operations within [***] six (6) months of payment of the applicable purchase deposit under Section 2.2(a)(i), Seller shall promptly (but in no event later than [***] ninety (90) days thereafter) (i) refund such Ordered System’s purchase deposit to Buyer, with all such refunded amounts being deposited by Seller into a separate control account of Buyer having Diamond State Generation Holdings, LLC as the secured party and (ii) to the extent any such Ordered System contains Safe Harbor Equipment, use commercially reasonable efforts to install or use that Safe Harbor Equipment in another Bloom System located or to be located at the Site. (e) To the extent that Seller has failed to comply with any of Seller’s obligations under the Letter Agreement (including, if so required by the State of Delaware, posting the [***] Confidential Treatment Requested security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first Bloom System), Buyer shall have the right to suspend any Purchase Orders (and payments with respect thereto) under this Agreement until such noncompliance is cured to the satisfaction of the State of Delaware. (f) In the event that as of December 31, 2012, Buyer reasonably determines that Seller will be unable to achieve Commencement of Operations for at least 5 MW of Bloom Systems by the first Guaranteed Initial Delivery Date (as defined in the QFCP-RC Tariff), then prior to Buyer paying any amounts toward Bloom Systems for which Purchase Orders have been placed with Seller after December 31, 2012, Buyer shall have received assurance from Seller reasonably acceptable to Buyer that (i) Seller is reasonably likely to achieve such installed capacity by March 31, 2013 or (ii) the Tariff will remain available for the output of Bloom Systems achieving Commencement of Operations after such Guaranteed Initial Delivery Date, as well as those Bloom Systems installed prior to March 31, 2013 if such installed Nameplate Capacity is less than 5 MW.

Delivery of Bloom Systems. (a) Each Ordered Delivery of each Bloom System shall be delivered to the applicable Site occur no more than ten [***] (10) days before and no more than sixty (60[***]) days after the requested delivery date Delivery Date specified in the applicable Purchase Order. Each Safe Harbor System shall be delivered to the applicable Site no more than sixty (60) days after the request for delivery of such Safe Harbor System by Buyer and in such a manner that a Grant is expected to be available for the applicable Site. (b) Delivery of each Ordered Bloom System shall be DDP (Incoterms 2010) to the Site specified in the relevant Purchase Orderits Site, in accordance with the Delaware California Uniform Commercial Code then in effect. Title to each Ordered System, except for title to any Safe Harbor Equipment which Buyer holds title to as of the date hereof, Bloom System shall pass to Buyer upon SellerBuyer’s delivery Purchase of such Ordered System at the relevant SiteBloom System, and such title shall be good and marketable and free of all Liens, except as provided in Section 2.2(f)for Permitted Liens. Except for the Safe Harbor Equipment (with respect to which Buyer has the risk of loss or damage as of the date hereof), from From and after the Delivery Date Buyer’s Purchase of each Ordered Bloom System all risk of loss or damage to such Ordered Bloom System shall be borne by Buyer. (c) [***]. [***] Confidential Treatment Requested (d) To the extent that the Shipment Date for any Ordered System Facility has not achieved Commencement of Operations occurred within [***] ([***]) days of the Delivery Date for such Ordered System (other than as a result of a Force Majeure Event, except that failure to satisfy any payment of the conditions portion of the Purchase Price set forth in Sections 2.7(v), (w), (x), or (ySection 2.2(a)(i) of the ECCA shall not be deemed a Force Majeure Event)for such Facility, then Buyer shall have the ongoing right until for the period from the end of such requirements are met to elect that such Ordered System be removed from its Site and delivered to Seller at Seller’s expense in an AS IS condition and that Seller promptly (but in no event later than [***] days thereafter) (i) refund such Ordered System’s purchase deposit under Section 2.2(a)(i) to Buyer, with all such refunded amounts being deposited by Seller into a separate control account of Buyer having Diamond State Generation Holdings, LLC as the secured party, (ii) restore that portion of the Site which was improved to accept the installation of such removed Ordered System and (iii) to the extent any such Ordered System contains Safe Harbor Equipment, use commercially reasonable efforts to install or use that Safe Harbor Equipment in another Bloom System located or to be located at the Site. (d) To the extent any Ordered System has not achieved Commencement of Operations within [***] months ]) day period until the Shipment Date for such Facility to cancel its purchase of payment such Facility, in which case Seller shall, within five (5) Business Days, refund to Buyer all payments made for such Facility and the applicable Bloom Systems shall no longer constitute a portion of the applicable purchase deposit under Section 2.2(a)(i), Seller shall promptly (but in no event later than [***] days thereafter) (i) refund such Ordered System’s purchase deposit to Buyer, with all such refunded amounts being deposited by Seller into a separate control account of Buyer having Diamond State Generation Holdings, LLC as the secured party and (ii) to the extent any such Ordered System contains Safe Harbor Equipment, use commercially reasonable efforts to install or use that Safe Harbor Equipment in another Bloom System located or to be located at the SitePortfolio. (e) To the extent that Seller any Facility has failed to comply with any not achieved Commencement of Seller’s obligations under Operations within the Letter Agreement earlier of (including, if so required by the State of Delaware, posting the i) [***] Confidential Treatment Requested security referred to in the Letter Agreement upon or prior to the Commencement of Operation ([***]) days of the first Bloom System)payment of the portion of Purchase Price set forth in Section 2.2(a)(ii) for such Facility and (ii) the Funding Date Deadline, then Buyer shall have the ongoing right to suspend any Purchase Orders for the period from the end of that [***] (and payments with respect thereto[***]) under this Agreement day period until such noncompliance is cured to the satisfaction earlier of the State of Delaware. (f) In the event date that as of December 31, 2012, Buyer reasonably determines that Seller will be unable to achieve such Facility has achieved Commencement of Operations for at least 5 MW and [***] ([***]) days after the end of that six- month period, to elect that Seller repurchase and remove such Facility from the applicable Site, in which case (A) Seller shall repurchase the Facilities from the Buyer on an AS IS basis by refunding to Buyer all payments of the Purchase Price paid as of such date, (B) title to such Facilities shall pass back to Seller upon payment of such refund amount, and (C) the applicable Bloom Systems shall no longer constitute a portion of the Portfolio. If a Facility is repurchased by Seller pursuant to this Section 3.2(e), Seller shall at its sole cost and expense remove the first Guaranteed Initial Delivery Date applicable Bloom Systems and any other ancillary equipment (as defined including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections, in the QFCP-RC Tariff), then prior to Buyer paying any amounts toward Bloom Systems for which Purchase Orders have been placed with Seller after December 31, 2012, Buyer shall have received assurance from Seller reasonably acceptable to Buyer that (i) Seller is reasonably likely to achieve such installed capacity manner required by March 31, 2013 or (ii) all Legal Requirements and the Tariff will remain available for the output of Bloom Systems achieving Commencement of Operations after such Guaranteed Initial Delivery Date, as well as those Bloom Systems installed prior to March 31, 2013 if such installed Nameplate Capacity is less than 5 MWapplicable PPA and/or Site Lease.

Delivery of Bloom Systems. (a) Each Ordered Delivery of each Bloom System shall be delivered to the applicable Site occur no more than ten ninety (10) days before and no more than sixty (6090) days after the requested delivery date Delivery Date specified in the applicable Purchase Order. Each Safe Harbor System shall be delivered to the applicable Site no more than sixty (60) days after the request for delivery of such Safe Harbor System by Buyer and in such a manner that a Grant is expected to be available for the applicable Site. (b) Delivery of each Ordered Bloom System shall be DDP (Incoterms 2010) to the Site specified in the relevant Purchase Orderits Site, in accordance with the Delaware California Uniform Commercial Code then in effect. Title to each Ordered System, except for title to any Safe Harbor Equipment which Buyer holds title to as of the date hereof, Bloom System shall pass to Buyer upon SellerBuyer’s delivery Purchase of such Ordered System at the relevant SiteBloom System, and such title shall be good and marketable and free of all Liens, except as provided in Section 2.2(f)for Permitted Liens. Except for the Safe Harbor Equipment (with respect to which Buyer has the risk of loss or damage as of the date hereof), from From and after the Delivery Date Buyer’s Purchase of each Ordered Bloom System all risk of loss or damage to such Ordered Bloom System shall be borne by Buyer. (c) To the extent any Ordered System has not achieved Commencement of Operations within [***]. [***] Confidential Treatment Requested (d) To the extent that the Shipment Date for any Facility has not occurred within ninety (90) days of the Delivery Date for such Ordered System (other than as a result of a Force Majeure Event, except that failure to satisfy any payment of the conditions portion of the Purchase Price set forth in Sections 2.7(v), (w), (x), or (ySection 2.2(a)(i) of the ECCA shall not be deemed a Force Majeure Event)for such Facility, then Buyer shall have the ongoing right for the period from the end of such ninety (90) day period until the Shipment Date for such requirements are met Facility to elect that cancel its purchase of such Ordered System be removed from its Site Facility, in which case Seller shall, within five (5) Business Days, refund to Buyer all payments made for such Facility and delivered to Seller at Seller’s expense in an AS IS condition and that Seller promptly (but in the applicable Bloom Systems shall no event later than [***] days thereafter) (i) refund such Ordered System’s purchase deposit under Section 2.2(a)(i) to Buyer, with all such refunded amounts being deposited by Seller into longer constitute a separate control account of Buyer having Diamond State Generation Holdings, LLC as the secured party, (ii) restore that portion of the Site which was improved to accept the installation of such removed Ordered System and (iii) to the extent any such Ordered System contains Safe Harbor Equipment, use commercially reasonable efforts to install or use that Safe Harbor Equipment in another Bloom System located or to be located at the Site. (d) To the extent any Ordered System has not achieved Commencement of Operations within [***] months of payment of the applicable purchase deposit under Section 2.2(a)(i), Seller shall promptly (but in no event later than [***] days thereafter) (i) refund such Ordered System’s purchase deposit to Buyer, with all such refunded amounts being deposited by Seller into a separate control account of Buyer having Diamond State Generation Holdings, LLC as the secured party and (ii) to the extent any such Ordered System contains Safe Harbor Equipment, use commercially reasonable efforts to install or use that Safe Harbor Equipment in another Bloom System located or to be located at the SitePortfolio. (e) To the extent that Seller any Facility has failed to comply with any of Seller’s obligations under the Letter Agreement (including, if so required by the State of Delaware, posting the [***] Confidential Treatment Requested security referred to in the Letter Agreement upon or prior to the not achieved Commencement of Operation Operations within the earlier of (i) one hundred eighty (180) days of the first Bloom System)payment of the portion of Purchase Price set forth in Section 2.2(a)(ii) for such Facility and (ii) the Funding Date Deadline, then Buyer shall have the ongoing right to suspend any Purchase Orders for the period from the end of that one hundred eighty (and payments with respect thereto180) under this Agreement day period until such noncompliance is cured to the satisfaction earlier of the State of Delaware. (f) In the event date that as of December 31, 2012, Buyer reasonably determines that Seller will be unable to achieve such Facility has achieved Commencement of Operations for at least 5 MW and ninety (90) days after the end of that six-month period, to elect that Seller repurchase and remove such Facility from the applicable Site, in which case (A) Seller shall repurchase the Facilities from the Buyer on an AS IS basis by refunding to Buyer all payments of the Purchase Price paid as of such date, (B) title to such Facilities shall pass back to Seller upon payment of such refund amount, and (C) the applicable Bloom Systems shall no longer constitute a portion of the Portfolio. If a Facility is repurchased by Seller pursuant to this Section 3.2(e), Seller shall at its sole cost and expense remove the first Guaranteed Initial Delivery Date applicable Bloom Systems and any other ancillary equipment (as defined including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections, in the QFCP-RC Tariff), then prior to Buyer paying any amounts toward Bloom Systems for which Purchase Orders have been placed with Seller after December 31, 2012, Buyer shall have received assurance from Seller reasonably acceptable to Buyer that (i) Seller is reasonably likely to achieve such installed capacity manner required by March 31, 2013 or (ii) all Legal Requirements and the Tariff will remain available for the output of Bloom Systems achieving Commencement of Operations after such Guaranteed Initial Delivery Date, as well as those Bloom Systems installed prior to March 31, 2013 if such installed Nameplate Capacity is less than 5 MWapplicable PPA and/or Site Lease.