Common use of Indemnification Regarding Performance Under PPAs Clause in Contracts

Indemnification Regarding Performance Under PPAs. (a) Without in anyway limiting and in addition to Buyer’s remedies pursuant to Section 5.2 to Section 5.7, inclusive, in the event that Buyer incurs any liability to a PPA Customer with respect to any performance guarantee, any power performance shortfall, any efficiency warranty or any cost excess, including payments made or to be made by Buyer to a PPA Customer to reimburse such PPA Customer for any deficiency in the benefits received by such PPA Customer under the applicable state incentive programs for any PPA (collectively the “PPA Warranties”), Seller shall indemnify and hold Buyer harmless for any such liability, costs and expenses incurred by Buyer pursuant to such PPA Warranties (“PPA Warranty Reimbursement Payment”). Without in anyway limiting and in addition to the foregoing, in the event that the failure of any Bloom System(s) to comply with any PPA Warranty causes the termination of a PPA (in whole or in part), then (i) Buyer may return the applicable Bloom System(s) to Seller and Seller will refund to Buyer the Refund Value of such Bloom Systems, in which case Seller shall be deemed to have taken title to such Bloom Systems, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio, and (ii) Seller shall indemnify and hold Buyer harmless for any amount the Buyer is liable to a PPA Customer in connection with such termination. If it is determined that a Bloom System will be removed pursuant to this Section 5.8(a), Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (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 manner required by all Legal Requirements and the applicable Site Lease. For the avoidance of doubt, claims, credits, reimbursements and any other payments made under this Section 5.8(a) are not subject to the cap set forth in Section 5.7(c) with respect to claims relating to the Annual Capacity Warranty and shall not count against such cap. (b) PPA Warranty Reimbursement Payments owed pursuant to Section 5.8(a) shall be calculated by Seller on the first Business Day following the end of each Calendar Quarter and paid as follows: first, the Service Fees owed by Buyer for a Calendar Quarter shall be offset to the extent of any PPA Warranty Reimbursement Payment arising out of the prior Calendar Quarter, and second, any remaining amount owed by Seller to Buyer after such offset shall be due and payable in cash, such payment to be paid no later than the fifth Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such PPA Warranty Reimbursement Payment arose. In the event that Buyer owes Seller any Services Fees after the offset of PPA Warranty Reimbursement Payments, payment of such Services Fees shall be paid within fifteen (15) days of Buyer’s receipt of a revised invoice reflecting such offset submitted by Seller pursuant to Section 4.3(c).

Indemnification Regarding Performance Under PPAs. (a) Without in anyway limiting and in addition to Buyer’s remedies pursuant to Section 5.2 to Section 5.7, inclusive, in the event that Buyer incurs any liability to a PPA Customer with respect to any performance guarantee, any power performance shortfall, any efficiency warranty or any cost excess, including payments made or to be made by Buyer to a PPA Customer to reimburse such PPA Customer for any deficiency in the benefits received by such PPA Customer under the applicable state incentive programs for any PPA (collectively the “PPA Warranties”), Seller shall indemnify and hold Buyer harmless for any such liability, costs and expenses incurred by Buyer pursuant to such PPA Warranties (“PPA Warranty Reimbursement Payment”)) except to the extent such liability results from a failure (not attributable to a Bloom Component Defect) of the Battery Solution to perform in accordance with any performance warranty(ies) provided by the manufacturer thereof. Without in anyway limiting and in addition to the foregoing, in the event that the failure of any Bloom System(s) to comply with any PPA Warranty causes the termination of a PPA (in whole or in part), then (i) Buyer may return the applicable Bloom System(s) to Seller and Seller will refund to Buyer the Refund Value of such Bloom Systems, in which case Seller shall be deemed to have taken title to such Bloom Systems, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio, and (iiand(ii) Seller shall indemnify and hold Buyer harmless for any amount the Buyer is liable to a PPA Customer in connection with such termination. If it is determined that a Bloom System will be removed pursuant to this Section 5.8(a), Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable PPA or Site LeaseLicense) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections and properly sealing any Site penetrations in the manner required by all Legal Requirements and the applicable PPA or Site LeaseLicense. For the avoidance of doubt, claims, credits, reimbursements and any other payments made under this Section 5.8(a) are not subject to the cap set forth in Section 5.7(c5.7(b) with respect to claims relating to the Annual Capacity Warranty Performance Guaranty and shall not count against such cap. (b) PPA Warranty Reimbursement Payments owed pursuant to Section 5.8(a) shall be calculated by Seller on the first Business Day following the end of each Calendar Quarter and paid as follows: first, the Service Fees owed by Buyer for a Calendar Quarter shall be offset to the extent of any PPA Warranty Reimbursement Payment arising out of the prior Calendar Quarter, and second, any remaining amount owed by Seller to Buyer after such offset shall be due and payable in cash, such payment to be paid no later than the fifth Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such PPA Warranty Reimbursement Payment arose. In . (c) Notwithstanding anything to the event contrary set forth herein, Seller shall have no liability to Buyer under this Section 5.8 to the extent that Buyer owes Seller Seller’s liability under any Services Fees PPA Warranty is increased due to such PPA Warranty having been modified, amended, or otherwise changed in any way from the terms of such PPA Warranty as set forth in the applicable PPA as of the Original PUMA Agreement Date (or, for PPAs added after the offset of Original PUMA Agreement Date, as set forth in the applicable PPA Warranty Reimbursement Payments, payment as of such Services Fees shall be paid within fifteen (15date) days of Buyer’s receipt of a revised invoice reflecting unless Seller has consented in writing to such offset submitted by Seller pursuant to Section 4.3(c)modification, amendment, or change.

Indemnification Regarding Performance Under PPAs. (a) Without in anyway limiting and in addition to Buyer’s remedies pursuant to Section 5.2 to Section 5.7, inclusive, in the event that Buyer incurs any liability to a PPA Customer with respect Customer, whether to reimburse, credit or pay it any amount or otherwise in relation to any performance guarantee, any power performance shortfall, shortfall or any efficiency warranty or any cost excess, including payments made pursuant to Sections 3.4 or to be made by Buyer to a PPA Customer to reimburse such PPA Customer for any deficiency in the benefits received by such PPA Customer under the applicable state incentive programs for any 12.1(a)(iii) of each PPA (collectively the “PPA Warranties”), Seller shall indemnify and hold Buyer harmless for any such liability, costs and expenses incurred by Buyer pursuant to such PPA Warranties (“PPA Warranty Reimbursement Payment”)Warranties. Without in anyway limiting and in addition to the foregoing, in the event that the failure of any Bloom System(s) to comply with any PPA Warranty causes the termination of a PPA (in whole or in part), then (ia) Buyer may return the applicable Bloom System(s) to Seller and Seller will refund to Buyer the Refund Value of such Bloom Systems, in which case Seller shall be deemed to have taken title to such Bloom Systems, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio, and (iib) Seller shall indemnify and hold Buyer harmless for any amount the Buyer is liable to a PPA Customer in connection with such termination. If it is determined that a Bloom System will be removed pursuant to this Section 5.8(a)5.8, Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (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 manner required by all Legal Requirements and the applicable Site Lease. For the avoidance of doubt, claims, credits, reimbursements and any other payments made under this Section 5.8(a) 5.8 are not subject to the cap set forth in Section 5.7(c) with respect to claims relating to the Annual Capacity Warranty and shall not count against such cap. (b) . Seller shall make any payment owed to Buyer in respect of the PPA Warranty Reimbursement Payments owed pursuant Warranties under this Section 5.8 prior to Section 5.8(a) shall be calculated by Seller on the first Business Day following the end of each Calendar Quarter and paid as follows: first, the Service Fees owed by Buyer for a Calendar Quarter shall be offset or concurrently with Buyer’s corresponding payment to the extent of any PPA Warranty Reimbursement Payment arising out of the prior Calendar Quarter, and second, any remaining amount owed by Seller to Buyer after such offset shall be due and payable in cash, such payment to be paid no later than the fifth Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such PPA Warranty Reimbursement Payment arose. In the event that Buyer owes Seller any Services Fees after the offset of PPA Warranty Reimbursement Payments, payment of such Services Fees shall be paid within fifteen (15) days of Buyer’s receipt of a revised invoice reflecting such offset submitted by Seller pursuant to Section 4.3(c)Customer.

Indemnification Regarding Performance Under PPAs. (a) Without in anyway limiting and in addition to Buyer’s remedies pursuant to Section 5.2 to Section 5.7, inclusive, in the event that Buyer incurs any liability to a PPA Customer with respect to any performance guarantee, any power performance shortfall, shortfall or any efficiency warranty or any cost excess, including payments made or to be made by Buyer to a PPA Customer to reimburse such PPA Customer for any deficiency in the benefits received by such PPA Customer under the applicable state incentive programs for any PPA excess (collectively the “PPA Warranties”), Seller shall indemnify and hold Buyer harmless for any such liability, costs and expenses incurred by Buyer pursuant to such PPA Warranties (“PPA Warranty Reimbursement Payment”)Warranties. Without in anyway limiting and in addition to the foregoing, in the event that the failure of any Bloom System(s) to [***] Confidential Treatment Requested comply with any PPA Warranty causes the termination of a PPA (in whole or in part), then (ia) Buyer may return the applicable Bloom System(s) to Seller and Seller will refund to Buyer the Refund Value of such Bloom Systems, in which case Seller shall be deemed to have taken title to such Bloom Systems, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio, and (iib) Seller shall indemnify and hold Buyer harmless for any amount the Buyer is liable to a PPA Customer in connection with such termination. If it is determined that a Bloom System will be removed pursuant to this Section 5.8(a)5.8, Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (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 manner required by all Legal Requirements and the applicable Site Lease. For the avoidance of doubt, claims, credits, reimbursements and any other payments made under this Section 5.8(a) 5.8 are not subject to the cap set forth in Section 5.7(c) with respect to claims relating to the Annual Capacity Warranty and shall not count against such cap. (b) . Seller shall make any payment owed to Buyer in respect of the PPA Warranty Reimbursement Payments owed pursuant Warranties under this Section 5.8 prior to Section 5.8(a) shall be calculated by Seller on the first Business Day following the end of each Calendar Quarter and paid as follows: first, the Service Fees owed by Buyer for a Calendar Quarter shall be offset or concurrently with Buyer’s corresponding payment to the extent of any PPA Warranty Reimbursement Payment arising out of the prior Calendar Quarter, and second, any remaining amount owed by Seller to Buyer after such offset shall be due and payable in cash, such payment to be paid no later than the fifth Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such PPA Warranty Reimbursement Payment arose. In the event that Buyer owes Seller any Services Fees after the offset of PPA Warranty Reimbursement Payments, payment of such Services Fees shall be paid within fifteen (15) days of Buyer’s receipt of a revised invoice reflecting such offset submitted by Seller pursuant to Section 4.3(c)Customer.

Indemnification Regarding Performance Under PPAs. (a) Without in anyway limiting and in addition to Buyer’s remedies pursuant to Section 5.2 to Section 5.7, inclusive, in the event that Buyer incurs any liability to a PPA Customer with respect to any performance guarantee, any power performance shortfall, shortfall or any efficiency warranty or any cost excess, including payments made or to be made by Buyer to a PPA Customer to reimburse such PPA Customer for any deficiency in the benefits received by such PPA Customer under the applicable state incentive programs for any PPA excess (collectively the “PPA Warranties”), Seller shall indemnify and hold Buyer harmless for any such liability, costs and expenses incurred by Buyer pursuant to such PPA Warranties (“PPA Warranty Reimbursement Payment”)Warranties. Without in anyway limiting and in addition to the foregoing, in the event that the failure of any Bloom System(s) to comply with any PPA Warranty causes the termination of a PPA (in whole or in part), then (ia) Buyer may return the applicable Bloom System(s) to Seller and Seller will refund to Buyer the Refund Value of such Bloom Systems, in which case Seller shall be deemed to have taken title to such Bloom Systems, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio, and (iib) Seller shall indemnify and hold Buyer harmless for any amount the Buyer is liable to a PPA Customer in connection with such termination. If it is determined that a Bloom System will be removed pursuant to this Section 5.8(a)5.8, Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (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 manner required by all Legal Requirements and the applicable Site Lease. For the avoidance of doubt, claims, credits, reimbursements and any other payments made under this Section 5.8(a) 5.8 are not subject to the cap set forth in Section 5.7(c) with respect to claims relating to the Annual Capacity Warranty and shall not count against such cap. (b) . Seller shall make any payment owed to Buyer in respect of the PPA Warranty Reimbursement Payments owed pursuant Warranties under this Section 5.8 prior to Section 5.8(a) shall be calculated by Seller on the first Business Day following the end of each Calendar Quarter and paid as follows: first, the Service Fees owed by Buyer for a Calendar Quarter shall be offset or concurrently with Buyer’s corresponding payment to the extent of any PPA Warranty Reimbursement Payment arising out of the prior Calendar Quarter, and second, any remaining amount owed by Seller to Buyer after such offset shall be due and payable in cash, such payment to be paid no later than the fifth Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such PPA Warranty Reimbursement Payment arose. In the event that Buyer owes Seller any Services Fees after the offset of PPA Warranty Reimbursement Payments, payment of such Services Fees shall be paid within fifteen (15) days of Buyer’s receipt of a revised invoice reflecting such offset submitted by Seller pursuant to Section 4.3(c)Customer.

Indemnification Regarding Performance Under PPAs. (a) Without in anyway limiting and in addition to Buyer’s remedies pursuant to Section 5.2 to Section 5.7, inclusive, in the event that Buyer incurs any liability to a PPA Customer with respect to any performance guarantee, any power performance shortfall, any efficiency warranty or any cost excess, including payments made or to be made by Buyer to a PPA Customer to reimburse such PPA Customer for any deficiency in the benefits received by such PPA Customer under the applicable state incentive programs for any PPA (collectively the “PPA Warranties”), Seller shall indemnify and hold Buyer harmless for any such liability, costs and expenses incurred by Buyer pursuant to such PPA Warranties (“PPA Warranty Reimbursement Payment”)) except to the extent such liability results from a failure (not attributable to a Bloom Component Defect) of the Battery Solution to perform in accordance with any performance warranty(ies) provided by the manufacturer thereof. Without in anyway limiting and in addition to the foregoing, in the event that the failure of any Bloom System(s) to comply with any PPA Warranty causes the termination of a PPA (in whole or in part), then (i) Buyer may return the applicable Bloom System(s) to Seller and Seller will refund to Buyer the Refund Value of such Bloom Systems, in which case Seller shall be deemed to have taken title to such Bloom Systems, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio, and (ii) Seller shall indemnify and hold Buyer harmless for any amount the Buyer is liable to a PPA Customer in connection with such termination. If it is determined that a Bloom System will be removed pursuant to this Section 5.8(a), Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable PPA or Site LeaseLicense) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections and properly sealing any Site penetrations in the manner required by all Legal Requirements and the applicable PPA or Site LeaseLicense. For the avoidance of doubt, claims, credits, reimbursements and any other payments made under this Section 5.8(a) are not subject to the cap set forth in Section 5.7(c5.7(b) with respect to claims relating to the Annual Capacity Warranty Performance Guaranty and shall not count against such cap.. Table of Contents (b) PPA Warranty Reimbursement Payments owed pursuant to Section 5.8(a) shall be calculated by Seller on the first Business Day following the end of each Calendar Quarter and paid as follows: first, the Service Fees owed by Buyer for a Calendar Quarter shall be offset to the extent of any PPA Warranty Reimbursement Payment arising out of the prior Calendar Quarter, and second, any remaining amount owed by Seller to Buyer after such offset shall be due and payable in cash, such payment to be paid no later than the fifth Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such PPA Warranty Reimbursement Payment arose. In . (c) Notwithstanding anything to the event contrary set forth herein, Seller shall have no liability to Buyer under this Section 5.8 to the extent that Buyer owes Seller Seller’s liability under any Services Fees PPA Warranty is increased due to such PPA Warranty having been modified, amended, or otherwise changed in any way from the terms of such PPA Warranty as set forth in the applicable PPA as of the Original PUMA Agreement Date (or, for PPAs added after the offset of Original PUMA Agreement Date, as set forth in the applicable PPA Warranty Reimbursement Payments, payment as of such Services Fees shall be paid within fifteen (15date) days of Buyer’s receipt of a revised invoice reflecting unless Seller has consented in writing to such offset submitted by Seller pursuant to Section 4.3(c)modification, amendment, or change.

Indemnification Regarding Performance Under PPAs. (a) Without in anyway any way limiting and in addition to Buyer’s remedies pursuant to Section 5.2 Sections 8.3 to Section 5.7, 8.7 inclusive, in the event that Buyer incurs any liability to a PPA Customer with respect Customer, whether to reimburse, credit or pay it any amount or otherwise in relation to any performance guarantee, any power performance shortfall, shortfall or any efficiency warranty or any cost excess, including payments made pursuant to Sections 5.2(b) or to be made by Buyer to a 6.7 of the Wal-Mart PPA Customer to reimburse such PPA Customer for any deficiency in or Sections 3.4 or 12.1(a)(iii) of the benefits received by such PPA Customer under the applicable state incentive programs for any AT&T PPA (collectively the “PPA Warranties”), Seller shall indemnify and hold Buyer harmless for any such liability, costs and expenses incurred by Buyer pursuant to the Wal-Mart PPA and AT&T PPA for such PPA Warranties (“PPA Warranty Reimbursement Payment”)liabilities described above. Without in anyway limiting and in addition to the foregoing, in In the event that the failure of either PPA is terminated with respect to any Bloom System(s) to comply with any PPA Warranty causes the termination System as a result of a Seller failure to meet the Warranty Specifications or the PPA (in whole or in part)Warranties, then (i) Buyer may return shall have the applicable right to require and the Seller agrees to repurchase the affected Bloom System(sSystems in the manner contemplated in Section 8.3(c) to Seller and Seller will refund to Buyer the Refund Value of such Bloom Systems, in which case Seller shall be deemed to have taken title to such Bloom Systems, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio, and (ii) Seller shall indemnify and hold Buyer harmless for any amount the Buyer is liable to a PPA Customer in connection with such termination. If it is determined that a Bloom System will be removed pursuant to this Section 5.8(a), Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (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 manner required by all Legal Requirements and the applicable Site Lease. For the avoidance of doubt, claims, credits, reimbursements and any other payments made under this Section 5.8(a) 8.9 are not subject to the cap set forth in Section 5.7(c) with respect to claims relating to the Annual Capacity Quarterly Warranty and shall not Cap or One-Year Warranty Cap or count against such cap. (b) PPA Warranty Reimbursement Payments caps. Seller shall make any payment owed pursuant to Section 5.8(a) shall be calculated by Seller on the first Business Day following the end of each Calendar Quarter and paid as follows: first, the Service Fees owed by Buyer for a Calendar Quarter shall be offset to the extent of any PPA Warranty Reimbursement Payment arising out in respect of the PPA Warranties under this Section 8.9 prior Calendar Quarter, and second, any remaining amount owed by Seller to Buyer after such offset shall be due and payable in cash, such or concurrently with Buyer’s corresponding payment to be paid no later than the fifth Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such a PPA Warranty Reimbursement Payment arose. In the event that Buyer owes Seller any Services Fees after the offset of PPA Warranty Reimbursement Payments, payment of such Services Fees shall be paid within fifteen (15) days of Buyer’s receipt of a revised invoice reflecting such offset submitted by Seller pursuant to Section 4.3(c)Customer.