IVANPAH III EQUITY PARTICIPATION AGREEMENT by and among BRIGHTSOURCE ENERGY, INC., as Sponsor BRIGHTSOURCE IVANPAH HOLDINGS, LLC, as Sponsor Investor NRG SOLAR IVANPAH LLC, as an Investor and DANKE SCHOEN PROJECT LLC, as an Investor dated as of April...

Exhibit 2.3

*	CERTAIN INFORMATION, MARKED BY BRACKETS AND AN ASTERISK, IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

Execution Version

IVANPAH III EQUITY PARTICIPATION AGREEMENT

by and among

BRIGHTSOURCE ENERGY, INC.,

as Sponsor

BRIGHTSOURCE IVANPAH HOLDINGS, LLC,

as Sponsor Investor

NRG SOLAR IVANPAH LLC,

as an Investor

and

DANKE ▇▇▇▇▇▇ PROJECT LLC,

as an Investor

dated as of April 5, 2011

TABLE OF CONTENTS


			Page

ARTICLE 1		DEFINED TERMS		2

1.1	Defined Terms			2

1.2	Interpretation			23

ARTICLE 2		DOCUMENT CLOSING		25

2.1	Document Closing			25

2.2	Conditions Precedent to the Obligation of Each Investor (other than Sponsor Investor) at the Document Closing			27

2.3	Additional Conditions Precedent to the Obligations of Google Investor and NRG Investor at Document Closing			31

2.4	Conditions Precedent to the Obligations of Sponsor and Sponsor Investor at Document Closing			31

ARTICLE 3		REPRESENTATIONS AND WARRANTIES		32

3.1	Representations and Warranties of All Parties			32

3.2	Representations and Warranties Relating to the Project Entities and Project			33

3.3	Representations and Warranties of Each Investor			48

ARTICLE 4		CERTAIN COVENANTS		49

4.1	Consummation of Transactions and Obtaining Approvals			49

4.2	Pre-Document Closing Actions			49

4.3	Confidentiality			49

4.4	Information Rights			50

4.5	Compliance With Governmental Rules			51

4.6	Disqualified Person			51

4.7	DOE Credit Facility Funding			51

ARTICLE 5		TERMINATION		51

5.1	Termination of Agreement			51

5.2	Procedure and Effect of Termination			52

ARTICLE 6		INDEMNIFICATION		52

6.1	General			52

6.2	Limitations on Indemnification			53

6.3	Mitigation and Limitation of Claims			54

6.4	Exclusive Remedy			55

6.5	Procedure for Indemnification with Respect to Third-Party Claims			55

TABLE OF CONTENTS

(continued)


			Page

6.6	Tax Consequences			57

6.7	Credit Support for Indemnification Claims against Sponsor			57

ARTICLE 7		GENERAL PROVISIONS		58

7.1	Exhibits and Schedules			58

7.2	Amendment, Modification and Waiver			58

7.3	Severability			58

7.4	Expenses			58

7.5	Parties in Interest			58

7.6	Notices			58

7.7	Counterparts			60

7.8	Entire Agreement			60

7.9	Governing Law; Choice of Forum; Waiver of Jury Trial			60

7.10	Public Announcements			61

7.11	Assignment			61

7.12	Relationship of Parties			61

Exhibits:


Exhibit A		Form of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Opinion
Exhibit B		Form of Sponsor In House Opinion
Exhibit C		Form of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP California Law Opinion
Exhibit D		Form of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP New York Law Opinion
Exhibit E		Form of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. Permitting Opinion
Exhibit F		Form of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP Cash Grant Opinion
Exhibit G		Form of KPMG LLP Reliance Letter
Exhibit H		Form of Title Insurance Policy

Schedules:

Schedule 2.2(f)(i)		Loan Documents
Schedule 2.2(f)(ii)		Project Documents
Schedule 3.2(i)(i)		Required Consents
Schedule 3.2(j)(i)		Litigation
Schedule 3.2(k)(iii)		Withholding Taxes
Schedule 3.2(n)(ii)		Environmental Litigation
Schedule 3.2(n)(iii)		Hazardous Substances
Schedule 3.2(n)(iv)		Violations of Environmental Laws or Environmental Approvals
Schedule 3.2(dd)		Fees
Schedule 3.3(c)		Investor Required Approvals

IVANPAH III EQUITY PARTICIPATION AGREEMENT

This Ivanpah III Equity Participation Agreement (this “Participation Agreement”) is made and entered into as of April 5, 2011 (the “Effective Date”), by and among BrightSource Energy, Inc., a Delaware corporation (“Sponsor”), BrightSource Ivanpah Holdings, LLC, a Delaware limited liability company (“Sponsor Investor”), NRG Solar Ivanpah LLC, a Delaware limited liability company (“NRG Investor”), and Danke ▇▇▇▇▇▇ Project LLC, a Delaware limited liability company (“Google Investor” and, together with NRG Investor and Sponsor Investor, each an “Investor” and, collectively, the “Investors”).

RECITALS

A. Sponsor indirectly owns 100% of the ownership interests in Sponsor Investor and Solar Partners VIII, LLC, a Delaware limited liability company (the “Project Company”).

B. Sponsor Investor indirectly owns 100% of the ownership interests in Ivanpah Master Holdings, LLC, a Delaware limited liability company (the “Master Holdco”), which in turn holds 100% of the ownership interests in Ivanpah III Project Holdings, LLC, a Delaware limited liability company (“Project Holdco” and, together with Master Holdco and the Project Company, the “Project Entities”).

C. The Project Company and two other wholly-owned subsidiaries of Sponsor are jointly developing a concentrating solar thermal power station consisting of three phases aggregating to 392 MW of gross generating capacity (the “Ivanpah Facility”). The Project Company owns all of the rights to the nominal 133 MW solar thermal electric generating plant comprising phase three of the Ivanpah Facility (the “Project”) and certain common facilities (the “Shared Facilities”) serving the Project and the two other related solar thermal electric generating facilities comprising phases one and two of the Ivanpah Facility (collectively, the “Other Projects”).

D. In connection with the closing of the transactions contemplated by this Participation Agreement, (i) Sponsor will cause its indirect interest in the Project Company to be contributed to Project Holdco through Master Holdco, (ii) on the Effective Date, each Investor, the Project Company, the U.S. Department of Energy (the “DOE”), and PNC Bank, National Association, acting through its Midland Loan Services, Inc. division, will enter into the Ivanpah III Equity Funding Agreement (the “Equity Funding Agreement”), and (iii) on the Effective Date, Sponsor Investor and each other Investor will enter into an Amended and Restated Limited Liability Company Agreement for Master Holdco (the “Master Holdco LLC Agreement”), pursuant to which each Investor will commit to make an investment and take an ownership interest in Master Holdco in connection with the development, construction, ownership and operation of the Project, the Shared Facilities and the Other Projects, in each case, subject to the conditions set forth herein and in the Equity Funding Agreement and the Master Holdco LLC Agreement.

F. The Parties are entering into this Participation Agreement to set forth the terms and conditions upon which they will cause the foregoing actions to occur.

AGREEMENT

In consideration of the respective representations, warranties, covenants, agreements, and conditions hereinafter set forth, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:

ARTICLE 1

DEFINED TERMS

1.1 Defined Terms. Initially capitalized terms not otherwise defined in this Participation Agreement have the following meanings, unless the context clearly requires otherwise:

“Advances” has the meaning set forth in the Common Agreement.

“Affiliate” means, as to any Person, any other Person that directly or indirectly controls, or is under common control with, or is controlled by, such Person. As used in this Participation Agreement, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) as used with respect to any Person means possession, directly or indirectly, of the power to direct or cause the direction of management or policies of such Person (whether through ownership of voting securities or partnership or other ownership interests, by contract or otherwise).

“ALTA Survey” means the ALTA survey prepared by VTN Surveyors with respect to the Site.

“Anti-Terrorism Order” has the meaning set forth in the Common Agreement.

“Applicable Regulations” has the meaning set forth in the Common Agreement.

“Approved Construction Changes” has the meaning set forth in the Common Agreement.

“Bankruptcy Law” means any insolvency, reorganization, moratorium or similar law for the general relief of debtors in any relevant jurisdiction.—

“Base Case Projections” means the projection of operating results for the Project with the file name “20110328 v32 Ivanpah III Base Case EQUITY.xlsm” dated as of March 30, 2011 and Made Available to Investors.

“Base Equity” has the meaning set forth in the Equity Funding Agreement.

“Base Equity Commitment” means the obligation of the Investors under the Equity Funding Agreement to fund an aggregate amount equal to the difference between (x) Base Project Costs, less (y) the amount of the DOE-Guaranteed Loan.

“Base Project Costs” has the meaning set forth in the Common Agreement.

“BLM” means the Bureau of Land Management of the U.S. Department of the Interior.

“BLM Right-of-Way” means one or more right-of-way grants from the BLM enabling the Project Company to use and occupy the Site and the Shared Facilities, consisting of a designated portion of certain lands that are owned by the U.S. government and managed by the BLM.

“BSCM” means BrightSource Construction Management, LLC, a Delaware limited liability company.

“BSCM Solar Field Agreement” means the Solar Field Supply Agreement dated as of the Effective Date, between the Project Company and BSCM.

“BSII” means BrightSource Industries (Israel) Ltd., a corporation organized and existing under the laws of Israel.

“BSOI” means BrightSource Operations (Israel) Ltd., a corporation organized and existing under the laws of Israel.

“BSOI/BSCM Solar Field Supply Subcontract” means the Solar Field Supply Subcontract dated as of the Effective Date, among the EPC Contractor, BSOI and BSCM.

“Business Day” means any day other than a Saturday, Sunday or any other day on which either FFB or the Federal Reserve Bank of New York are not open for business.

“Buy American Provisions” means Section 1605 of Title XVI of Division A of the Recovery Act 2 C.F.R. Sections 176.140 and 176.160, Office of Management and Budget’s Initial Implementing Guidance for the Recovery Act, M 09 10 (February 18, 2009) and Updated Implementing Guidance for the Recovery Act, M 09 15 (April 3, 2009) and, in each case, any amendment, supplement or successor thereto, including any relevant regulation or guidance which may be issued by the DOE.

“CAISO” means the California Independent System Operator.

“Capital Lease” means any lease of (or other agreement conveying the right to use) real or personal property, which would be required, in accordance with GAAP, to be capitalized and accounted for as a capital lease on a balance sheet of the lessee.

“Cash Grant” means any cash grant payable to the Project Company under Section 1603 of the Recovery Act or any similar provision.

“Cash Grant Guidance” means the program guidance publication entitled, “Payments for Specific Energy Property in Lieu of Tax Credits under the American Recovery and Reinvestment Act of 2009” dated July 2009 (as revised March 2010 and further revised January 2011), and any other guidance (including frequently asked questions and answers), instructions or terms and conditions published or issued by the U.S. Department of Treasury in respect of a Cash Grant or any application therefor and the terms and conditions that the Project Company must agree to in order to receive a Cash Grant.

“Cash Grant Disqualified Person” means at any time during the Recapture Period (a) a federal, state or local government (or political subdivision, agency or instrumentality thereof), (b) an organization described in Section 501(c) of the Code and exempt from tax under Section 501(a) of the Code, (c) an entity described in paragraph (4) of Section 54(j) of the Code, (d) a real estate investment trust, as defined in Section 856(a) of the Code, (e) a regulated investment company, as defined in Section 851(a) of the Code, (f) any Person who is not a United States person as defined in Section 7701(a)(30) of the Code (other than a foreign partnership or foreign pass-through entity) unless such person is subject to U.S. federal income tax on more than 50% of the gross income derived by such person from Master Holdco, or (g) a partnership or other “pass-thru entity” (within the meaning of paragraph (g)(4) of Section 1603 of division B of the Recovery Act, including a single member disregarded entity and a foreign partnership or foreign pass-through entity) any direct or indirect partner (or other holder of an equity or profits interest) of which is an organization described in (a) through (f) above unless such person owns an indirect interest in such partnership or pass-through entity through a “taxable C corporation” (other than a real estate investment trust or regulated investment company), as that term is used in the Cash Grant Guidance; provided, that if and to the extent the definition of “Disqualified Person” under Section 1603(g) Division B of the Recovery Act is amended after the Financial Closing Date (as defined in the Common Agreement) and such amendment is applicable to the Cash Grant, the definition of “Cash Grant Disqualified Person” provided in this Participation Agreement shall be interpreted to conform to such amendment and any U.S. Department of Treasury Cash Grant Guidance with respect thereto.

“Cash Grant Loss” means an obligation to make a payment to the United States of America (or any agency or instrumentality thereof) as a result of a recapture or disallowance of all or any portion of the Cash Grant set forth in a final notification from the U.S. Department of Treasury for the Cash Grant application filed for the Project, whether as a result of the Project or any interest therein being disposed of, the Project ceasing to be specified energy property, or otherwise.

“Change in Tax Law” means any amendment to, or change in, the Code or final and temporary Treasury Regulations issued thereunder and any amendment to, or change in, Section 1603 of the Recovery Act, in each case enacted, adopted or promulgated after the Effective Date.

“Code” means the United States Internal Revenue Code of 1986.

“Collateral Security” has the meaning set forth in the Common Agreement.

“Commercially Reasonable Efforts” means the exercise of commercially reasonable and diligent efforts consistent with prudent management practices that do not require the performing Party to expend any funds or assume liabilities, other than expenditures and liabilities that are customary and reasonable in nature and amounts for transactions like those contemplated by this Participation Agreement or for the performance of the obligations set forth herein.

“Commercial Operation Date” has the meaning set forth in the Power Purchase Agreement.

“Common Agreement” means that certain Common Agreement, dated as of the Effective Date, among the Project Company, the DOE and the Administrative Agent thereunder.

“Common Class A Shares” has the meaning set forth in the Master Holdco LLC Agreement.

“Common Class B Shares” has the meaning set forth in the Master Holdco LLC Agreement.

“Common Class C Shares” has the meaning set forth in the Master Holdco LLC Agreement.

“Common Projects Contract” means the Common Projects Contract, dated as of September 29, 2010, among the Project Company, the owners of the Other Projects and the EPC Contractor, which provides, among other things, for the purchase, installation and construction of the Shared Facilities.

“Company Group Indemnified Members” has the meaning set forth in Section 6.2(c).

“Construction Budget” means the Construction Budget Made Available by the Project Company to each Investor, as amended from time to time by Approved Construction Changes, setting forth Total Project Costs (including Owner’s Contingency, all construction costs and specified soft costs) and a detailed budget (each by category on an aggregate basis) to design, develop, construct, and start up the Project through “Final Completion” under the Construction Documents (inclusive of the cost of all punch list items) and in accordance with the Construction Plans.

“Construction Documents” means the documents identified in Section 4.1.2(c) of the Common Agreement, together with any additional Project Document identified as a “Construction Document” under the Common Agreement.

“Construction Management Agreement” means the Construction Management Agreement, dated as of the date of the Common Agreement, between Construction Manager and the Project Company.

“Construction Manager” means NRG Construction LLC.

“Construction Milestone Schedule” means the schedule of significant development and construction milestones Made Available by the Project Company to each Investor, as amended from time to time by Approved Construction Changes, for the design, development, construction, and start up of the Project through “Final Construction Completion” under the Construction Documents and in accordance with the Construction Plans.

“Construction Plan Budget & Schedule” has the meaning set forth in the Common Agreement.

“Construction Plans” means, collectively, (i) the Financial Plan, (ii) the Construction Budget, and (iii) the Construction Milestone Schedule, each as amended from time to time by Approved Construction Changes, for the design, development and construction of the Project.

“Contingent Obligation” means as to any Person, any obligation of such Person with respect to any Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, as a guarantee or otherwise: (i) for the purchase, payment or discharge of any such primary obligation; (ii) to purchase, repurchase or otherwise acquire such primary obligations or any property constituting direct or indirect security therefor, including the obligation to make take-or-pay or similar payments; (iii) to advance or supply funds; (iv) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet item, level of income or financial condition of the primary obligor; (v) to purchase property, securities or services primarily for the purpose of assuring the holder of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; (vi) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof, including with respect to letter of credit obligations, swap agreements, foreign exchange contracts and other similar agreements (including agreements relating to derivative instruments); provided, however, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the Ordinary Course of Business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

“Corrupt Practices Laws” means (i) the Foreign Corrupt Practices Act of 1977 (Pub. L. No. 95-213, §§101-104), as amended, and (ii) any equivalent U.S. or foreign Governmental Rule.

“Cost Overrun” means any Project Cost in excess of the amount budgeted for Base Project Costs as in effect on the date of the Common Agreement (after taking into account any reallocations of Owner’s Contingency among line items in accordance with Section 2.1 and Section 6.8(b) of the Common Agreement.)

“Debarment” has the meaning set forth in the Common Agreement.

“Debarment Regulations” has the meaning set forth in the Common Agreement.

“Debt Collection Improvement Act” has the meaning set forth in the Common Agreement.

“Depreciation Disqualified Person” means a “tax-exempt entity” within the meaning of Code Section 168(h), provided that such a tax-exempt entity shall not be a Depreciation Disqualified Person after expiration of the period when the portion of the Project eligible for the Cash Grant is depreciable.

“Disqualified Person” means a Person that is either a Cash Grant Disqualified Person or a Depreciation Disqualified Person.

“Disclosure Order” has the meaning set forth in Section 4.3(a).

“Document Closing” has the meaning set forth in Section 2.1(a).

“Document Closing Actions” has the meaning set forth in Section 2.1(b).

“Document Closing Date” means the date on which the Document Closing occurs.

“DOE” has the meaning set forth in the recitals to this Participation Agreement.

“DOE Credit Facility” means the loan facility available to the Project Company under the DOE Credit Facility Documents.

“DOE Credit Facility Documents” means the documents identified in Section 4.1.1(b) of the Common Agreement, together with any additional Loan Document identified as a “DOE Credit Facility Document” under the Common Agreement.

“DOE-Guaranteed Loan” means the loan provided by FFB pursuant to the DOE Credit Facility Documents and as the context requires, the amount of such loan outstanding from time to time, including principal and Capitalized Interest (as defined in the Common Agreement).

“Dollars” or “$” means the lawful currency of the United States of America.

“Effective Date” has the meaning set forth in the preamble of this Participation Agreement.

“Environmental Approvals” has the meaning set forth in Section 3.2(n)(i).

“Environmental Laws” means any Governmental Rule in effect from time to time regulating, relating to or imposing obligations, liability or standards of conduct concerning pollution, protection of human or animal health or the environment or Releases or threatened Releases of pollutants, contaminants, chemicals, radiation or industrial, toxic or hazardous substances or wastes, including Hazardous Substances, or otherwise relating to the generation, manufacture, processing, distribution, use, treatment, storage, recycling, disposal, transport, or handling of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes, including Hazardous Substances.

“EPC Contract” means, collectively, (i) the Master Services Contract, (ii) the Equipment and Construction Contract, and (iii) the Common Projects Contract.

“EPC Contractor” means ▇▇▇▇▇▇▇ Power Corporation, a Nevada corporation.

“Equipment and Construction Contract” means the Equipment and Construction Contract dated as of September 29, 2010 between the EPC Contractor and the Project Company.

“Equity Contributor Guaranty” means the Equity Contributor Guaranty, dated as of the Effective Date, among Sponsor, BSCM and PNC Bank, National Association.

“Equity Documents” means this Participation Agreement, the Equity Funding Agreement, the Equity Termination Agreement and the Master Holdco LLC Agreement.

“Equity Funding Agreement” has the meaning set forth in the recitals to this Participation Agreement.

“Equity Interests” means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) the common or preferred equity or equity or preference share capital of a Person, including partnership interests and limited liability company interests.

“Equity Termination Agreement” means that certain Equity Termination Agreement, dated as of the Effective Date, among Sponsor, the Investors, Master Holdco, the Project Company, Solar Partners I, LLC, Solar Partners II, LLC, Project Manager, Construction Manager, and Operator.

“ERISA” means the Employee Retirement Income Security Act of 1974 of the United States, as amended from time to time, and the regulations promulgated, and any publicly available rulings issued, thereunder.

“ERISA Affiliate” means, as applied to any person (as defined in Section 3(9) of ERISA), (i) any corporation that is a member of a controlled group of corporations within the meaning of Section 414(b) of the Code of which that person is a member, (ii) any trade or business (whether or not incorporated) that is a member of a group of trades or business under common control within the meaning of Section 414(c) of the Code or Section 4001(b) of ERISA of which that person is a member, (iii) any member of an affiliated service group within the meaning of Section 414(m) and (o) of the Code of which that person, any corporation described in clause (i) above or any trade or business described in clause (ii) above is a member.

“Escrow Account” means the account established with the Escrow Agent pursuant to the Escrow Agreement, into which the Escrow Funds will be deposited at Document Closing and from which amounts will be paid, in each case pursuant to Section 2.1(c)(ii).

“Escrow Agent” means ▇▇▇▇▇▇▇ Title Guaranty Company.

“Escrow Agreement” means that certain Escrow Agreement to be executed in connection with the Document Closing among the Project Company, Solar Partners I, LLC, Solar Partners II, LLC, the Investors, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, Hercules Technology Growth Capital, LLC, PNC Bank National Association, doing business as Midland Loan Services, a division of PNC Bank, National Association, Escrow Agent and Chicago Title Insurance Company.

“Escrow Funds” has the meaning set forth in Section 2.1(c)(ii).

“Escrow Release” has the meaning set forth in Section 2.1(c)(ii).

“Event of Default” means any of the events described in Section 8.1 of the Common Agreement.

“Event of Force Majeure” has the meaning set forth in the Common Agreement.

“Event of Loss” means any event that causes any portion of the Project (including the Shared Facilities) or any other property of the Project Company to be damaged, destroyed or rendered unfit or unavailable for normal use for any reason whatsoever, including through a failure of title or any loss of such property, in each case to the extent that such casualty damage, loss or other event has (x) a Material Adverse Effect, or (y) an adverse effect on the Project in excess of $1,000,000.

“Exempt Holding Company” has the meaning set forth in the Common Agreement.

“Exempt Wholesale Generator” means an “exempt wholesale generator” as such term is defined in Section 1262(5) of PUHCA and section 366.1 of the FERC’s regulations thereunder, 18 C.F.R.§366.1.

“Exhibits” means the exhibits attached to this Participation Agreement.

“Fee Contributions” has the meaning set forth in Section 2.1(b)(i).

“FERC” means the Federal Energy Regulatory Commission and any successor thereto.

“FFB” means the Federal Financing Bank, a body corporate and instrumentality of the United States of America.

“Financial Plan” means the Financial Plan attached as Exhibit A1 to the Common Agreement, as amended from time to time by Approved Construction Changes, setting forth in summary format all sources of funds needed to pay Total Project Costs, including DOE-Guaranteed Loan, Base Equity and Overrun Equity, contingent liabilities and letters of credit.

“Financial Statements” means, with respect to any Person, such Person’s quarterly or annual balance sheet and statements of income, retained earnings, and sources and application of funds for such fiscal period, together with all notes thereto and with comparable figures for the corresponding period of its previous fiscal period, each prepared in Dollars and in accordance with GAAP (except for the absence of footnotes and normal year-end adjustments in the case of unaudited financial statements), it being agreed that for purposes of the Transaction Documents the Financial Statements of the Sponsor shall be prepared on a consolidated basis (including the Project Company).

“Fiscal Year” means the accounting year of the Project Company, which is a calendar year.

“Foreign Asset Control Regulations” has the meaning set forth in the Common Agreement.

“Fundamental Representation” means the representations and warranties set forth in Sections 3.1(a), 3.1(c), 3.2(a), 3.2(b), 3.2(c), 3.2(d), 3.2(dd), 3.3(a), and 3.3(b).

“GAAP” means generally accepted accounting principles in the United States in effect from time to time including, where appropriate, generally accepted auditing standards, including the pronouncements and interpretations of appropriate accountancy administrative bodies (including the Financial Accounting Standards Board and any predecessor and successor thereto), applied on a consistent basis both as to classification of item and amounts, it being understood that unaudited Financial Statements will not include footnotes and will be subject to normal year-end adjustments.

“Google Closing Date Contribution Amount” means [*].

“Google Closing Date Interest” has the meaning set forth in Section 2.1(c)(i).

“Google Investor” has the meaning set forth in the preamble to this Participation Agreement.

“Governmental Approvals” means any approval, consent, authorization, license, permit, order, certificate, qualification, waiver, exemption, or variance, or any other action of a similar nature, of or by a Governmental Authority, whether granted directly to the Project Company or to a third party, necessary or advisable for (i) the Loan Documents and the payment of all amounts due or to become due with respect thereto, (ii) the execution, delivery and performance by the Project Company of each Transaction Document to which it is a party, or (iii) carrying out the business of the Project Company and the Project, including any of the foregoing that are or may be deemed given or withheld by failure to act within a specified time period, including with respect to NEPA.

“Governmental Authority” means any federal, state, county, municipal, or regional authority, or any other entity of a similar nature, exercising any executive, legislative, judicial, regulatory, or administrative function of government.

“Governmental Judgment” means with respect to any Person, any judgment, order, decision, or decree, or any action of a similar nature, of or by a Governmental Authority having jurisdiction over such Person or any of its properties.

“Governmental Rule” means with respect to any Person, any statute, Law, rule, regulation, code, or ordinance of a Governmental Authority having jurisdiction over such Person or any of its properties.

“Hazardous Substances” means any hazardous or toxic substances, chemicals, materials, pollutants or wastes defined, listed, classified or regulated as such in or under any Environmental Laws, including (i) any petroleum or petroleum products (including gasoline, crude oil or any fraction thereof), flammable explosives, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation and polychlorinated biphenyls; (ii) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” “contaminants” or “pollutants,” or

*	Confidential Treatment Requested

words of similar import, under any applicable Environmental Law; and (iii) any other chemical, material or substance, import, storage, transport, use or disposal of, or exposure to or Release of which is prohibited, limited or otherwise regulated under any Environmental Law.

“Hedging Agreement” means, with respect to any Person, any agreement or instrument in respect of any interest rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of the foregoing transactions) or any combination of the foregoing transactions entered into by such Person.

“Indebtedness” means, as to any Person, and at any date, without duplication, (i) all Indebtedness for Borrowed Money of such Person; (ii) all obligations of such Person evidenced by bonds, debentures, notes, letters of credit, or other similar instruments; (iii) all obligations of such Person to purchase securities (or other property) that arise out of or in connection with the sale or acquisition of the same or similar securities (or property); (iv) all obligations of such Person issued, undertaken or assumed as the deferred purchase price of property or services other than trade credit in the Ordinary Course of Business; (v) all obligations of such Person under leases that are or should be, in accordance with GAAP, recorded as Capital Leases in respect of which such Person is liable; (vi) all deferred obligations of such Person to reimburse any bank or other Person in respect of amounts paid or advanced under a letter of credit or other instrument; (vii) the currently available amount of all surety bonds, performance bonds, letters of credit or other similar instruments issued for the account of such Person; (viii) all liabilities secured by (or for which the holder of such liabilities has an existing right, contingent, or otherwise, to be secured by) any Lien upon or in property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such liabilities (other than the Power Purchase Agreement); (ix) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to property acquired by such Person (even though the rights and remedies of the seller or bank under such agreement in the event of any default are limited to repossession or sale of such property); (x) obligations pursuant to any agreement to purchase materials, supplies or other property if such agreement provides that payment shall be made regardless of whether delivery of such materials, supplies or other property is ever made or tendered (which, for the avoidance of doubt, excludes obligations under the Project Documents); (xi) all obligations in respect of any Hedging Agreement or similar arrangement between such Person and a financial institution providing for the transfer or mitigation of interest risks either generally or under specific contingencies (but without regard to any notional principal amount relating thereto); and (xii) all Contingent Obligations of such Person with respect to Indebtedness of the types specified in clauses (i) through (xi) above.

“Indebtedness for Borrowed Money” means, as to any Person, without duplication, (i) all indebtedness (including principal, interest, fees, and charges) of such Person for borrowed money or for the deferred purchase price of property or services (other than any deferral (x) in connection with the provision of credit in the Ordinary Course of Business by any trade creditor or utility or (y) of any amounts payable under the Project Documents), and (ii) the aggregate amount required to be capitalized under any Capital Lease under which such Person is the lessee.

“Indemnified Party” has the meaning set forth in Section 6.1.

“Indemnitor” has the meaning set forth in Section 6.1.

“Indemnity Maximum Amount” means, with respect to any Indemnified Party and all other Company Group Indemnified Members associated with such Indemnified Party, an amount equal to 20% of, without duplication, (i) all capital contributions made, deemed to be made or required to be made by the Investor associated with such Indemnified Party pursuant to the Master Holdco LLC Agreement and the Equity Funding Agreement, reduced by, (ii) if such Investor is Sponsor Investor, any distribution made to Sponsor Investor pursuant to Section 3.2(j) of the Master Holdco LLC Agreement (relating to True-Up Amounts as defined therein).

“Indemnity Threshold Amount” means, with respect to any Indemnified Party and all other Company Group Indemnified Members associated with such Indemnified Party, an amount equal to 1% of, without duplication, (i) all capital contributions made, deemed to be made or required to be made by the Investor associated with such Indemnified Party pursuant to the Master Holdco LLC Agreement and the Equity Funding Agreement, reduced by, (ii) if such Member is Sponsor Investor, any distribution made to Sponsor Investor pursuant to Section 3.2(j) of the Master Holdco LLC Agreement (relating to True-Up Amounts as defined therein).

“Insolvency Proceedings” means any bankruptcy, insolvency, liquidation, controlled management, suspension of payments, scheme of arrangement, appointment of provisional liquidator, receiver or administrative receiver, notification, resolution, or petition for winding up or similar proceeding, under any applicable Law, in any jurisdiction and whether voluntary or involuntary.

“Intellectual Property Rights” means any and all rights in, arising out of, or associated with any or all of the following, whether now or hereafter existing, created, acquired or held: (i) all U.S., international and foreign patents and patent applications (including provisional applications) and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof and all inventions (whether or not patentable, reduced to practice or made the subject of a pending patent application), invention disclosures and improvements; (ii) trade secrets, confidential information and data and know-how; (iii) works of authorship, including all copyrights, copyright registrations and applications for copyright registration, renewals and extensions thereof, and all other rights corresponding thereto throughout the world; (iv) mask works, including mask work registrations and applications therefor, and any equivalent or similar rights in semiconductor masks, layouts, architectures or topology; (v) industrial designs, including any registrations and applications therefor throughout the world; (vi) trade names, logos, trademarks and service marks and other indicia of ownership, including registered trademarks and service marks, all applications to register trademarks and service marks throughout the world, including intent to use registrations, and all goodwill symbolized or associated therewith; (vii) databases and data collections throughout the world; (viii) all moral and economic rights of authors and inventors, however denominated, throughout the world; and (ix) any similar or equivalent rights to any of the foregoing anywhere in the world.

“Investments” means for any Person: (i) the acquisition (whether for cash, property, services or securities or otherwise) or holding of Equity Interests, bonds, notes, debentures,

partnership or other ownership interests or other securities of or in any other Person; (ii) the making of any deposit with, or advance, loan or other extension of credit to, any other Person or any guarantee of, or other Contingent Obligation with respect to, any Indebtedness or other liability of any other Person and (without duplication) any amount committed to be advanced, lent or extended to any other Person; and (iii) the acquisition of any similar property, right or interest of or in any other Person.

“Investor” and “Investors” are defined in the preamble to this Participation Agreement.

“Investor Cure Period” has the meaning set forth in Section 5.1(d).

“Investor Required Approvals” has the meaning set forth in Section 3.3(c).

“IRR” has the meaning set forth in Section 2.3(b).

“Ivanpah Facility” has the meaning set forth in the recitals of this Participation Agreement.

“Knowledge” means the actual knowledge of the Principal Persons of the referenced party or any knowledge which should have been obtained by any of the Principal Persons of such party upon reasonable investigation and inquiry.

“Law” means any applicable statute, law (including common law), constitution, treaty, charter, ordinance, code, order, rule, regulation, Permit, or other binding requirement or determination of any Governmental Authority.

“Lease” means any agreement that would be characterized under GAAP as an operating lease.

“Liability” means any Indebtedness, liability or obligation of whatever kind or nature (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, whether matured or unmatured, and whether due or to become due), including any liabilities for Taxes.

“Liens” means any lien (statutory or other), pledge, mortgage, charge, security interest, deed of trust, assignment, hypothecation, title retention, fiduciary transfer, deposit arrangement, easement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever in respect of an asset, whether or not filed, recorded or otherwise perfected or effective under applicable Law, as well as the interest of a vendor or lessor under any conditional sale agreement, Capital Lease or other title retention agreement relating to such asset, (including any conditional sale or other title retention agreement, any Capital Lease having substantially the same economic effect as any of the foregoing, or any preferential arrangement having the practical effect of constituting a security interest with respect to the payment of any obligation with, or from the proceeds of, any asset or revenue of any kind).

“Loan Documents” means, collectively, all of the documents referred to in the Common Agreement as “Loan Documents” but in all cases excluding the Project Documents and Equity Documents.

“Loss” means the amount of (a) any out of pocket loss, cost, expense, damage or Liability, including interest, fines, reasonable legal and accounting fees and expenses, but excluding consequential, indirect, special or punitive damages of Indemnified Parties (unless such damages are payable to a third party (including any Governmental Authority)), reduced by (b) any amounts actually received by the Indemnified Parties as a result of any recovery, settlement, or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement, or payment by or against any other Person in connection with the circumstances giving rise to such Loss (net of the costs and expenses of obtaining such amounts, including any increased premiums directly resulting from a payment pursuant to any insurance coverage).

“Loss Proceeds” means all proceeds (other than any proceeds of business interruption insurance, advance loss of profit insurance, and proceeds covering liability of the Project Company to third parties) resulting from a Event of Loss.

“Made Available” means the respective materials that were (i) posted to the Deal Interactive BrightSource data room or delivered to each of the Investors (other than Sponsor Investor) by the Sponsor Parties, in each case no later than two (2) business days prior to the Effective Date, or (2) posted to the “SharePoint BrightSource Ivanpah Equity Transaction Data Site” or the “▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Extranet - US DEPARTMENT OF ENERGY-066423 – BRIGHTSOURCE 000002” as final documents.

“Major Project Participant” means each of (i) the Project Company, (ii) the Sponsor, (iii) BSII, (iv) BSOI, (v) BSCM, (vi) BLM, (vii) the Power Purchaser, (viii) the EPC Contractor, (ix) the Turbine Supplier, (x) the SRSG Supplier, (xi) the Operator, (xii) any other Sponsor Affiliate designated by the DOE as being material to the success of the Project, and (xiii) any other Project Participant (as defined in the Common Agreement) designated by DOE on or before the Document Closing Date as providing significant construction or engineering services to the Project Company or as otherwise being material to the success of the Project, as set forth in Schedule 4.1 to the Common Agreement.

“Master Advance Notice” has the meaning set forth in the Common Agreement.

“Master Holdco” has the meaning set forth in the recitals to this Participation Agreement.

“Master Holdco LLC Agreement” has the meaning set forth in the recitals to this Participation Agreement.

“Master Services Contract” means the Amended and Restated Master Services Contract dated as of July 23, 2010, among the Project Company, the owners of the Other Projects and the EPC Contractor, including certain related contracts among such parties.

“Material Adverse Effect” means, as of any date of determination, a material adverse effect on (i) the Project, (ii) the ability of the Project Company or any other Major Project Participant to observe and perform its material obligations in a timely manner under any Transaction Document to which it is a party, or (iii) the business, operations, condition (financial or otherwise) or property of the Project Company, except any material and adverse effect caused by: (a) any event or condition resulting from or relating to changes or developments, in each case after the Effective Date, in Governmental Rules, (b) any event or condition resulting from or relating to changes or developments, in each case after the Effective Date, in the economy, financial markets, energy commodity markets or power transmission markets, (c) any event or condition generally applicable to the industries in which the Project operates (including the solar, electric generating, transmission or distribution industries), whether international, national, regional, state or local; (d) changes after the Effective Date in general regulatory or political conditions, including any acts of war or terrorist activities; (e) strikes, work stoppages or other labor disputes; (f) effects of weather, meteorological or geological events; or (g) any change, financial or otherwise, to the business, affairs or operation of any Investor (other than Sponsor Investor) or any of its Affiliates; so long as, in the case of clauses (a), (b), (c), (d), (e) and (f), the Project, the Project Company or any other Major Project Participant, as the case may be, is not affected thereby in a materially disproportionate manner relative to other businesses in the utility-scale solar thermal electric generation industry in the southwest United States.

“Multiemployer Plan” means a “multiemployer plan” (within the meaning of Section 3(37) of ERISA) which the Project Company or any ERISA Affiliate contributes to or participates in, or with respect to which the Project Company or any ERISA Affiliate has any material liability or other obligation (whether accrued, absolute, contingent or otherwise).

“NEPA” means the National Environmental Policy Act.

“Non-Sponsor Investor Status” means the (i) status, assets and activities of any Investor (other than Sponsor Investor) and its Affiliates except to the extent arising solely by reason of the ownership by such Investor of an interest in the Project Company, or (ii) direct or indirect ownership of any Investor (other than Sponsor Investor).

“NRG Closing Date Contribution Amount” means [*].

“NRG Closing Date Interest” has the meaning set forth in Section 2.1(c)(i).

“NRG Investor” has the meaning set forth in the preamble to this Participation Agreement.

“OFAC” has the meaning set forth in the Common Agreement.

“O&M Agreement” means the Operations and Maintenance Agreement between the Operator and the Project Company, pursuant to which, among other things, a major parts inventory and such other spare parts and other items as are necessary for the maintenance of the Project are maintained.

*	Confidential Treatment Requested

“O&M Guarantee” means the guarantee made by the O&M Guarantor in favor of the Project Company with respect to the payment and performance obligations of the Operator under the O&M Agreement.

“O&M Guarantor” means the parent entity of the Operator acting as guarantor of the obligations of the Operator and otherwise as set forth under the O&M Guarantee.

“Operating Budget” has the meaning set forth in the Common Agreement.

“Operating Documents” means documents identified in Section 4.1.2(d) of the Common Agreement.

“Operating Plans” has the meaning set forth in the Common Agreement.

“Operational Completion Date” has the meaning set forth in the Equity Funding Agreement.

“Operator” means NRG Energy Services, LLC, a Delaware limited liability company.

“Ordinary Course of Business” means the ordinary conduct of business consistent with past custom and practice (including with respect to quantity and frequency) and that is consistent with the Prudent Operator Standard.

“Organizational Documents” means with respect to any Person, its charter, articles of incorporation and by-laws, memorandum and articles of association, statute, partnership agreement, limited liability company agreement or similar instruments that are required to be registered or lodged in the place of organization of such Person and that establish the legal personality of such Person.

“Other Participation Agreements” means, collectively, the Ivanpah I Equity Participation Agreement, dated as of the date hereof, among Sponsor, Sponsor Investor, NRG Investor and Google Investor, and the Ivanpah II Equity Participation Agreement, dated as of the date hereof, among Sponsor, Sponsor Investor, NRG Investor and Google Investor.

“Other Projects” has the meaning set forth in the recitals to this Participation Agreement.

“Outside Date” has the meaning set forth in Section 2.1(c)(ii).

“Overrun Equity” has the meaning set forth in the Equity Funding Agreement.

“Overrun Equity Commitments” has the meaning set forth in the Equity Funding Agreement.

“Owner’s Contingency” has the meaning set forth in the Common Agreement.

“Owner’s Title Policy” means an ALTA (2006 Form) owner’s policy of title insurance to be issued by each of the Title Companies in the form attached hereto as Exhibit H.

“Participation Agreement” has the meaning set forth in the first paragraph hereof.

“Party” means a party to this Participation Agreement.

“Patriot Act” has the meaning set forth in the Common Agreement.

“Pension Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (i) that is or was at any time maintained or Sponsored by the Project Company or any ERISA Affiliate or to which the Project Company or any ERISA Affiliate has ever made, or was obligated to make, contributions, and (ii) that is or was subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA.

“Permitted Indebtedness” has the meaning set forth in the Common Agreement.

“Permitted Investments” has the meaning set forth in the Common Agreement.

“Permitted Liens” means (i) the rights and interests of the Secured Parties as provided in the Loan Documents; (ii) Liens for any tax, assessment or other governmental charge not yet due, or being contested in good faith and by appropriate proceedings timely instituted, so long as (A) such proceedings shall not involve any danger of the sale, forfeiture or loss of the Project, or any easements, as the case may be, title thereto or any interest therein and shall not interfere with the use or disposition of any material part of the Project or any material easement; and (B) a bond, adequate reserves or other security has been posted or provided in such manner and amount as to assure that any taxes, assessments or other charges determined to be due will promptly be paid in full when such contest is determined; (iii) Liens in favor of materialmen, workers or repairmen, or other like Liens arising in the Ordinary Course of Business or in connection with the construction of the Project, either for amounts not yet due or for amounts being contested in good faith and by appropriate proceedings timely instituted so long as (x) such proceedings shall not involve any danger of the sale, forfeiture or loss of any material part of the Project or any material easement, as the case may be, title thereto or any interest therein and shall not interfere with the use or disposition of any material part of the Project or any material easement, and (y) a bond or other security has been posted or provided in such manner and amount as to assure that any amounts determined to be due will promptly be paid in full when such contest is determined; (iv) matters disclosed in the ALTA Survey, to the extent such matters do not and will not materially impair the use, development or operation by Project Company of the Site for its intended purpose; (v) zoning, entitlement, building and other land use regulations imposed by Governmental Authorities having jurisdiction over the Site which do not and will not materially impair the use, development or operation by Project Company of the Site for its intended purpose; (vi) covenants, conditions, restrictions, easements and other similar matters of record disclosed in the Owner’s Title Policy and approved by Investors or which are specifically identified as encumbrances in the BLM Right-of-Way to be recorded against the Site; (vii) any other non-monetary Lien affecting the Site, the existence of which does not and will not materially impair the use, development or operation by the Project Company of the Site for their intended purpose; (viii) Liens (not securing Indebtedness) of depository institutions and securities intermediaries (including rights of set-off or similar rights) with respect to deposit accounts or securities accounts; (ix) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.1(l) of the Common Agreement or securing

appeal or other surety bonds related to such judgments; (x) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the Ordinary Course of Business; (xi) pledges or deposits or other Liens in the Ordinary Course of Business in connection with worker’s compensation, unemployment insurance, social security and other Governmental Rules; (xii) Liens granted to the Power Purchaser under the Power Purchase Agreement; and (xiii) Liens on personal property or fixtures of the Project Company not essential for the operation of the Project and having a fair market value of less than one hundred thousand dollars ($100,000) in the aggregate, (xiv) Liens securing purchase money obligations of the Project Company in an aggregate amount of less than $500,000, and (xv) other BLM rights of way for the use of the Shared Facilities by the Other Projects and Liens created by the Shared Facilities Agreement; provided, however, that, notwithstanding the foregoing, Permitted Liens shall not include any Lien on any Pledged Equity Interests.

“Person” means any individual, firm, corporation, company, voluntary association, partnership, limited liability company, joint venture, trust, unincorporated organization, Governmental Authority, committee, department, authority or any other body, incorporated or unincorporated, whether having distinct legal personality or not.

“Pledged Equity Interests” means the Equity Interests of the Project Company.

“Potential Default” has the meaning set forth in the Common Agreement.

“Power Purchase Agreement” means the Power Purchase and Sale Agreement, dated as of April 28, 2009, as amended by that First Amendment to the April 28, 2009 Power Purchase and Sale Agreement, dated as of July 7, 2010, between the Project Company and the Power Purchaser.

“Power Purchaser” means Pacific Gas and Electric Company, acting as purchaser and otherwise as set forth under the Power Purchase Agreement.

“Pre-Funding Encumbrances” has the meaning set forth in the Common Agreement.

“Principal Persons” means any officer, director, owner, key employee or other Person with primary management or supervisory responsibilities with respect to a Project Entity or Sponsor, or any other Person (whether or not an employee) who has critical influence on or substantive control over the Project. For the avoidance of doubt, each of the Sponsor’s Principal Persons is a Principal Person of each of the Project Entities.

“Prohibited Jurisdiction” has the meaning set forth in the Common Agreement.

“Prohibited Person” has the meaning set forth in the Common Agreement.

“Project” has the meaning set forth in the recitals to this Participation Agreement.

“Project Company” has the meaning set forth in the recitals to this Participation Agreement.

“Project Costs” has the meaning set forth in the Common Agreement.

“Project Documents” means the documents identified in Section 4.1.2 of the Common Agreement.

“Project Entities” has the meaning set forth in the recitals to this Participation Agreement.

“Project Equipment Supply Agreements” means, collectively, (i) the Turbine Purchase Agreement, (ii) the Turbine Purchase Agreement Assignment, (iii) the SRSG Product Purchasing Agreement, (iv) the BSCM Solar Field Agreement, and (v) the BSOI/BSCM Solar Field Supply Subcontract.

“Project Management Agreement” means the Asset Management Agreement to be entered into on the Document Closing Date between the Project Manager and the Project Company.

“Project Manager” means NRG Solar Asset Management LLC, a Delaware limited liability company and an affiliate of NRG Investor.

“Project Holdco” has the meaning set forth in the recitals to this Participation Agreement.

“Proposed Change in Tax Law” means a proposal for a Change in Tax Law publicly endorsed by the U.S. Department of Treasury or another Executive Department or Executive Office of the President of the United States, the Chair or Ranking Member of the United States House of Representatives Committee on Ways & Means or the Chair or Ranking Member of the United States Senate Finance Committee.

“Prudent Electric Power Industry Standards” means any of the practices, methods and acts engaged in or approved by a significant portion of the electric power industry in the same region as the Project that, at a particular time, in the exercise of reasonable judgment would have been expected to accomplish the desired result in a manner consistent with applicable Laws, standards, equipment manufacturers’ recommendations, reliability, safety, environmental protection, economy and expedition. With respect to the Project, Prudent Electric Power Industry Standards include taking reasonable steps to ensure that: (a) equipment, materials, resources and supplies are available to meet the needs of the Project; (b) the equipment will function properly under both normal and emergency conditions at the Project; (c) appropriate monitoring and testing are performed to ensure equipment is functioning as designed; and (d) equipment is not operated in a negligent manner, or in a manner unsafe to workers, the general public, or contrary to applicable Law (including Environmental Laws) or regulations or without regard to defined limitations such as flood conditions, safety inspection requirements, operating voltage, current, volt-ampere reactive (VAR) loading, frequency, rotational speed, polarity, synchronization, and/or control system limits.

“Prudent Operator Standard” means that a Person shall (a) perform its duties in good faith and as a reasonably prudent operator, (b) perform its duties in compliance with the requirements of the Project Documents, (c) exercise at least such care, skill and diligence as a

reasonably prudent business company of established reputation engaged in the solar thermal energy generation business would exercise in the conduct of its business and for the advancement or protection of its own interests, and as would ordinarily be expected in the solar thermal energy generation industry from a prudent contractor, owner and/or operator acting lawfully, reliably and safely in connection with solar thermal energy generation facilities and equipment similar to the Project, (d) perform the duties in accordance with commercially reasonable solar thermal energy industry standards, (e) use sufficient and properly trained and skilled personnel, and (f) use parts and supplies that meet the specifications set forth in the Project Documents, in all cases with respect to (a) through (f) herein, taking into account all of the costs and expenses of operation of the Project.

“PUHCA” means the Public Utility Holding Company Act of 2005, as amended from time to time.

“PUHCA Holding Company” has the meaning set forth in the Common Agreement.

“Recapture Period” means the earlier of (i) the expiration of the five (5) year period commencing on the date on which the Project is reported as “placed in service” in the relevant Cash Grant application for such Project, in accordance with the Cash Grant Guidance, or (ii) the date that the Project Company has become obligated to repay the Cash Grant.

“Recoveries” has the meaning set forth in Section 6.3(b).

“Recovery Act” means the American Recovery and Reinvestment Act of 2009, P.L. No. 111-5.

“Release” means disposing, discharging, injecting, spilling, leaking, leaching, dumping, pumping, pouring, emitting, escaping, emptying, seeping, placing and the like, into or upon any land or water or air, or otherwise entering into the environment.

“Representatives” means, with respect to any Person, the managing member(s), the officers, directors, employees, representatives or agents (including investment bankers, financial advisors, attorneys, accountants, brokers and other advisors) of such Person, to the extent that such officer, director, employee, representative or agent of such Person is acting in his or her capacity as an officer, director, employee, representative or agent of such Person.

“Required Consents” has the meaning set forth in Section 3.2(i)(i).

“Required Insurance” means insurance coverage for the Project satisfying the requirements set forth in Schedule 6.3(b) of the Common Agreement.

“Schedules” means the schedules attached to this Participation Agreement.

“Secured Parties” means the DOE and the Collateral Agent (as defined in the Common Agreement), as their respective interests may appear.

“Shared Facilities” has the meaning set forth in the recitals to this Participation Agreement.

“Shared Facilities Agreement” means a joint operating agreement among the Project Company and the owners of the Other Projects, providing for the joint ownership of the Shared Facilities and certain other provisions regarding the Shared Facilities that are necessary for the consummation of the Project.

“Site” means the real property where the Project and the Shared Facilities are located, which real property is subject to the BLM Right-of-Way.

“Source Code Escrow Agreement” means the Master Escrow Service Agreement among the Project Company, Solar Partners I, LLC, Solar Partners II, LLC, BSII and Iron Mountain Intellectual Property Management, Inc. that provides terms for the deposit, maintenance and release of the source code of BSII proprietary software provided under the BSCM Solar Field Agreement and the BSOI/BSCM Solar Field Supply Subcontract.

“Sponsor” has the meaning set forth in the preamble of this Participation Agreement.

“Sponsor Affiliate” means the Project Company, BSII, BSOI, Project Holdco, Master Holdco, Sponsor Investor and each other Person that is an Affiliate of the Sponsor.

“Sponsor Confidential Information” means any information relating to (1) the proprietary, nonpublic inputs to the Base Case Projections, (2) the Project Documents, (3) the Construction Plans, and (4) the Financial Statements of the Sponsor Parties.

“Sponsor Cure Period” has the meaning set forth in Section 5.1(c).

“Sponsor Disclosure Schedules” means the schedules delivered by Sponsor pursuant to Section 3.2.

“Sponsor Investor” has the meaning set forth in the preamble of this Participation Agreement.

“Sponsor Lenders” means, collectively, each Person serving as an agent or lender (or any representative thereof) from time to time under a Sponsor Loan.

“Sponsor Loan” means the loan to Sponsor under that certain Credit and Guaranty Agreement, dated as of October 4, 2010 (as amended, supplemented or otherwise modified from time to time), among Sponsor, certain wholly-owned subsidiaries of Sponsor, as guarantors, the lenders party thereto from time to time and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, as administrative agent and as collateral agent.

“Sponsor Parties” means, individually and collectively, Sponsor, Sponsor Investor, the Project Entities and any other Affiliate of Sponsor who is a party under any Transaction Document.

“Sponsor Support Agreement” has the meaning set forth in the Common Agreement.

“Sponsor Warranty Support Agreement” means the Security Escrow Agreement, dated as of the Effective Date, among Sponsor, Investors, BSCM, BSOI, the Project Company and ▇▇▇▇▇ Fargo Bank, N.A.

“SRSG Product Purchasing Agreement” means the Purchasing Agreement dated as of August 12, 2010, between BSCM and the SRSG Supplier.

“SRSG Supplier” means ▇▇▇▇▇ Power, Inc., a corporation organized and existing under the laws of the Commonwealth of Massachusetts.

“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, joint venture or other entity of which such Person (either alone or through or together with any other Person pursuant to any agreement, arrangement, contract or other commitment) owns, directly or indirectly, 10% or more of the stock or other Equity Interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.

“Tax” (and, with correlative meaning, “Taxes”) means:

(a) any taxes, customs, duties, charges, fees, levies, penalties or other assessments, fees and other governmental charges imposed by any Governmental Authority, including, but not limited to, income, profits, gross receipts, net proceeds, windfall profit, severance, property, personal property (tangible and intangible) production, sales, use, leasing or lease, license, excise, duty, franchise, capital stock, net worth, employment, occupation, payroll, withholding, social security (or similar), unemployment, disability, payroll, fuel, excess profits, occupational, premium, severance, estimated, alternative or add-on minimum, ad valorem, value added, turnover, transfer, stamp, or environmental tax, or any other tax, custom, duty, fee, levy or other like assessment or charge of any kind whatsoever, together with any interest, penalty, addition to tax, or additional amount attributable thereto; and

(b) any liability for the payment of amounts with respect to payment of a type described in clause (a), including as a result of being a member of an affiliated, consolidated, combined or unitary group, as a result of succeeding to such liability as a result of merger, conversion or asset transfer or as a result of any obligation under any tax sharing arrangement or tax indemnity agreement.

“Tax Returns” means any return, report, statement, information return or other document (including any amendments thereto and any related or supporting information) filed or required to be filed with any Governmental Authority in connection with the determination, assessment, collection or administration of any Taxes or the administration of any Laws, regulations or administrative requirements relating to any Taxes, information return, claim for refund, amended return or declaration of estimated Tax.

“Technology” means, regardless of form, (i) any invention (whether or not patentable or reduced to practice), discovery, information, work of authorship, articles of manufacture, machines, methods, processes, models, procedures, protocols, designs, diagrams, drawings, documentation, flow charts, network configurations and architectures, schematics, specifications, concepts, data, databases and data collections, algorithms, formulas, know-how and techniques,

software code, including all source code, object code, firmware, development tools and application programming interfaces (APIs), tools, materials, marketing and development plans, and all other forms of technology, (ii) any improvements to any of the foregoing, and (iii) all media on which any of the foregoing is recorded.

“Terminating Investor Breach” has the meaning set forth in Section 5.1(d).

“Terminating Sponsor Breach” has the meaning set forth in Section 5.1(c).

“Title Companies” means, collectively, ▇▇▇▇▇▇▇ Title Guaranty Company, a corporation organized and existing under the laws of the State of Texas, Old Republic National Title Insurance Company, a corporation organized and existing under the laws of the State of Minnesota, and Chicago Title Insurance Company, a corporation organized and existing under the laws of the State of Nebraska.

“Total Funding Available” means the aggregate of all funds that are (i) undrawn but committed, or reasonably expected to be available, under the DOE Credit Facility and the Base Equity Commitments, (ii) received or receivable delay payments and Loss Proceeds, (iii) standing to the credit of the Project Revenue Account and the Disbursement Account established pursuant to the Common Agreement, and (iv) all unused Overrun Equity Commitments and any other unused equity funding that is committed or reasonably expected to be available.

“Total Project Costs” has the meaning set forth in the Common Agreement.

“Transaction Documents” means, collectively, the Loan Documents, the Equity Documents and the Project Documents.

“Treasury Yield” means the yield appearing in the most recently published statistical release designated “H.15 (519)” (or any successor publication that is published in its place by the Federal Reserve) and which establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity under the caption “Treasury constant maturities” for the maturity most closely corresponding to the expected date of the realization of the expected income tax benefit.

“Turbine Purchase Agreement” means the Amended and Restated Supply Contract, dated as of August 11, 2008 and executed as of January 7, 2011, between the Project Company and the Turbine Supplier with respect to a turbine generator for the Project.

“Turbine Purchase Agreement Assignment” means the assignment of the Turbine Purchase Agreement to the EPC Contractor.

“Turbine Supplier” means Siemens Industrial TurboMachinery, Inc.

1.2 Interpretation.

(a) All terms in this Participation Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant thereto unless otherwise defined therein.

(b) As used in this Participation Agreement and in any certificate or other documents made or delivered pursuant thereto, accounting terms not defined in this Participation Agreement or in any such certificate or other document, and accounting terms partly defined in this Participation Agreement or in any such certificate or other document to the extent not defined, shall have the respective meanings given to them under GAAP. To the extent that the definitions of accounting terms in this Participation Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in this Participation Agreement or in any such certificate or other document shall control.

(c) The words “hereof”, “herein”, “hereunder”, and words of similar import when used in this Participation Agreement shall refer to this Participation Agreement, as a whole and not to any particular provision of this Participation Agreement.

(d) The words “includes” or “including” when used in this Participation Agreement mean “including, for example and without limitation”.

(e) The definitions contained in this Participation Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

(f) Any agreement, instrument, statute or regulation defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument, statute or regulation as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

(g) Any references to a Person are also to its permitted successors and assigns.

(h) All Article and Section titles or captions contained in this Participation Agreement, or in any Exhibit or Schedule referred to therein and the table of contents of this Participation Agreement are for convenience only and shall not be deemed a part of this Participation Agreement, or affect the meaning or interpretation of this Participation Agreement. Unless otherwise specified, all references in this Participation Agreement to numbered Articles and Sections are to Articles and Sections of this Participation Agreement, and all references herein to Schedules or Exhibits are to Schedules and Exhibits to this Participation Agreement.

(i) Unless otherwise specified, all references contained in this Participation Agreement in any Exhibit or Schedule referred to therein or in any instrument or document delivered pursuant thereto to dollars or “$” shall mean United States dollars.

(j) The Parties to this Participation Agreement have participated jointly in the negotiation and drafting of this Participation Agreement. In the event an ambiguity or

question of intent or interpretation arises, this Participation Agreement shall be construed as if drafted jointly by the Parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Participation Agreement.

ARTICLE 2

DOCUMENT CLOSING

2.1 Document Closing.

(a) Document Closing. The Document Closing Actions shall take place at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m. (prevailing Pacific time) or at such other place and time as the Parties may agree in writing, on a date to be specified by the Parties, which shall be (unless waived by each of the Parties) no earlier than the third Business Day after satisfaction or waiver of the conditions specified in Section 2.2, Section 2.3 and Section 2.4 of this Participation Agreement (other than conditions which can only be satisfied at closing), which execution and delivery shall nevertheless occur prior to the initial funding of the DOE Credit Facility. The closing of such transaction is referred to herein as the “Document Closing”.

(b) Closing Actions at Document Closing. Subject to the terms and conditions of this Participation Agreement, at the Document Closing, or at such earlier time as specified below, the Parties shall take or cause to be taken the following actions (the “Document Closing Actions”):

(i) each Investor shall (x) execute and deliver the Equity Funding Agreement and take such actions described therein to be taken by such Investor on such date, including, in the case of Google Investor and NRG Investor, making a capital contribution to Master Holdco pursuant to Section 3.2(b)(i) of the Master Holdco LLC Agreement in order to fund the payment of a portion of certain fees, commissions and expenses due under the DOE Credit Facility Documents (the “Fee Contributions”), and (y) execute and deliver to the DOE all certificates, notices and other documents required to be delivered by such Investor under the DOE Credit Facility Documents, in each case, at the Document Closing;

(ii) each Investor shall provide the credit support required under the Equity Funding Agreement to support such Investor’s performance of its obligations thereunder;

(iii) Sponsor shall cause the Project Company to execute and deliver the Equity Funding Agreement with respect to the Project, and shall cause the Project Company to take such actions described therein to be taken by the Project Company at Document Closing;

(iv) each Investor shall execute and deliver the Master Holdco LLC Agreement and make its contributions and take such other actions described therein to be taken by such Investor at Document Closing that relate to the Project;

(v) Sponsor shall cause the Project Company to execute and deliver the DOE Credit Facility Documents not already executed and delivered, and shall cause the

Project Company to take such actions described therein to be taken by the Project Company at Document Closing;

(vi) Sponsor shall cause the Project Company to issue and deliver a Master Advance Notice and related certificates under the Common Agreement for the initial advance under the DOE Credit Facility;

(vii) Sponsor shall cause the Project Company to execute and deliver each of the Project Management Agreement, the Construction Management Agreement, the O&M Agreement and the O&M Guarantee, and shall cause the Project Company to take such actions described in each such agreement to be taken by the Project Company at Document Closing, if any;

(viii) Sponsor shall, and shall cause each applicable Sponsor Affiliate to, execute and deliver the Sponsor Warranty Support Agreement, the Equity Contributor Guaranty, the Source Code Escrow Agreement and the Sponsor Support Agreement;

(ix) each Investor shall execute and deliver the Escrow Agreement;

(x) Sponsor shall cause the Project Company, Solar Partners I, LLC and Solar Partners II, LLC to execute and deliver the Escrow Agreement;

(xi) Sponsor shall, and shall cause each applicable Sponsor Affiliate to, execute and deliver all other documents, certificates, notices and instruments required to be delivered pursuant to any of the foregoing documents.

(i) General. At the Document Closing, in addition to making the Fee Contributions as described in Section 2.1(b)(i)(x) above, NRG Investor and Google Investor shall make the following capital contributions in the manner described in clause (ii) below: (x) NRG Investor shall make a capital contribution to Master Holdco equal to the NRG Closing Date Contribution Amount in exchange for an ownership interest in Master Holdco (the “NRG Closing Date Interest”) pursuant to Section 3.2(b)(ii)(A) of the Master Holdco LLC Agreement, and (y) Google Investor shall make a capital contribution to Master Holdco equal to the Google Closing Date Contribution Amount in exchange for an ownership interest in Master Holdco (the “Google Closing Date Interest”) pursuant to Section 3.2(b)(ii)(B) of the Master Holdco LLC Agreement.

(ii) Escrow of NRG Closing Date Contribution Amount and Google Closing Date Contribution Amount. On the Document Closing Date, NRG Investor shall pay the NRG Closing Date Contribution Amount and Google Investor shall pay the Google Closing Date Contribution Amount into the Escrow Account in immediately available funds in accordance with the terms of the Escrow Agreement (such aggregate amount, the “Escrow Funds”). Upon satisfaction of the “First Advance Conditions” (as defined in the Escrow Agreement), Escrow Agent will release such funds in accordance with the terms of paragraph 4 of the Escrow Agreement (the “Escrow Release”); provided, that if the Escrow Release has not occurred within thirty (30) days of the Document Closing Date (the “Outside Date”), Escrow

Agent shall disburse from the Escrow Account the NRG Closing Date Contribution Amount to NRG Investor and the Google Closing Date Contribution Amount to Google Investor in accordance with the terms of the Escrow Agreement. Upon release of the Escrow Fund on the Outside Date, the terms of the Equity Termination Agreement shall take effect.

(iii) Issuance of Equity Interests in Master Holdco. After giving effect to the Document Closing and the execution and delivery of the Master Holdco LLC Agreement by all Investors, effective as of the Document Closing Date, (x) NRG Investor shall receive Common Class B Shares in Master Holdco as set forth on Schedule 1 to the Master Holdco LLC Agreement, (y) Google Investor shall receive Common Class C Shares in Master Holdco as set forth on Schedule 1 to the Master Holdco LLC Agreement, and (z) Sponsor Investor shall hold all issued and outstanding Common Class A Shares, NRG Investor shall hold all issued and outstanding Common Class B Shares and Google Investor shall hold all issued and outstanding Common Class C Shares in Master Holdco. On the Document Closing Date, Sponsor Investor shall cause Master Holdco to issue certificates evidencing the interests set forth in this Section 2.1(c)(iii) pursuant to Section 2.2(b) of the Master Holdco LLC Agreement.

2.2 Conditions Precedent to the Obligation of Each Investor (other than Sponsor Investor) at the Document Closing. The obligation of each Investor (other than Sponsor Investor) to consummate its respective Document Closing Actions at the Document Closing shall be subject to the fulfillment, at or before Document Closing, of each of the following conditions (any or all of which may be waived in whole or in part by any such Investor in its sole discretion):

(a) Document Closing Actions. Each of the Sponsor Parties and each other Investor shall have tendered performance of the Document Closing Actions applicable to it.

(b) Other Participation Agreements. The Other Participation Agreements shall have been executed and delivered by the Parties thereto and the “Document Closings” described therein shall have occurred simultaneously with the Document Closing described herein.

(c) Representations and Warranties. (i) Each of the Fundamental Representations of the Sponsor and each other Investor shall be true and correct in all respects at and as of the Effective Date and at and as of the Document Closing and (ii) each of the representations and warranties of the Sponsor and each other Investor set forth in the Transaction Documents (other than the Fundamental Representations) shall be true and correct in all respects at and as of the Effective Date and at and as of the Document Closing (except in the case of any representation or warranty that by its terms is made as of a date specified therein, in which case any such representation or warranty shall be true and correct in all respects as of such date), except where the failure of such representations or warranties to be in compliance with the standard set forth in this clause (ii) has not had and would not reasonably be expected to have a Material Adverse Effect, it being understood that, for purposes of determining the accuracy of such representations and warranties in connection with this clause (ii), any materiality or Material Adverse Effect qualifications set forth in any such representation or warranty shall be disregarded.

(d) Officer’s Certificates. Sponsor shall have delivered to each Investor an officer’s certificate of an authorized officer of Sponsor (i) certifying that each of the relevant conditions in Section 2.4 has been fulfilled to the satisfaction of Sponsor or has been waived by Sponsor, (ii) certifying that each of the Sponsor Parties’ representations and warranties in this Participation Agreement was true and correct at and as of the Effective Date and is true and correct at and as of the Document Closing Date (as provided in Section 2.2(c)), (iii) certifying that each of Sponsor Parties’ covenants have been performed and complied with as required by Section 2.2(i) and (iv) attaching (A) accurate and complete copies of the organizational documents of each Sponsor Party, (B) resolutions of each Sponsor Party authorizing the execution of the Transaction Documents to which each such Person is a party and (C) good standing or similar certificates of each Sponsor Party.

(e) Incumbency Certificates. Sponsor shall have delivered to each Investor a certificate of incumbency from the secretary or assistant secretary of each Sponsor Party as to the officers of such Sponsor Party, as applicable, who sign the Transaction Documents on behalf of such Sponsor Party.

(f) No Material Changes to Documentation.

(i) Loan Documents. Sponsor shall have Made Available fully executed copies of each of the documents listed on Schedule 2.2(f)(i) attached hereto, each of which shall be certified by the Sponsor that (v) such document is a true, complete and correct copy of such document (including all schedules, exhibits, attachments, supplements and amendments thereto and any related side letters), (w) such document has been duly executed and delivered by (A) the Project Company and each Affiliate of the Project Company, as applicable, and (B) to Sponsor’s Knowledge, each other party thereto, (x) such document is in full force and effect subject only to achievement of the Document Closing Actions, and no Sponsor Party is, and but for the passage of time or giving of notice or both will be, in breach of any representation, warranty, covenant or obligation thereunder, (y) to Sponsor’s Knowledge, no party (other than any Sponsor Party) to such document is, or but for the passage of time or giving of notice or both will be, in breach of any representation, warranty, covenant or obligation thereunder, and (z) there has been no material change to any such document from the forms of such documents most recently Made Available to the Investors prior to the Effective Date.

(ii) Project Documents. Sponsor shall have Made Available fully executed copies of each of the Project Documents listed on Schedule 2.2(f)(ii) attached hereto, each of which shall be certified by Sponsor that (v) such document is a true, complete and correct copy of such document (including all schedules, exhibits, attachments, supplements and amendments thereto and any related side letters), (w) such document has been duly executed and delivered by (A) the Project Company and each Affiliate of the Project Company, as applicable, and (B) to Sponsor’s Knowledge, each other party thereto, (x) such document is in full force and effect, if applicable subject only to the achievement of the Document Closing Actions, and no Sponsor Party is, and but for the passage of time or giving of notice or both will be, in breach of any representation, warranty, covenant or obligation thereunder, (y) to Sponsor’s Knowledge, no party (other than any Sponsor Party) to such document is, or but for the passage of time or giving of notice or both will be, in breach of any representation, warranty, covenant or obligation thereunder, and (z) there has been no material change to any such Project Document from the

forms of such Project Documents most recently Made Available to the Investors prior to the Effective Date.

(g) Sufficiency of Debt/Equity Commitments. There shall have been no material change in facts or circumstances that results in any change to Investors’ determination that, in their reasonable discretion, there are adequate debt and equity funding commitments to complete construction of the Project and achieve the Commercial Operation Date no later than December 31, 2013.

(h) Exempt Wholesale Generator Status. The Project Company shall have filed a notice of self-certification of status as an Exempt Wholesale Generator with FERC in compliance with 18 C.F.R.§ 366.7, and the notice shall have been deemed to be effective, as provided therein.

(i) Compliance with Covenants. Each of the Sponsor Parties and each other Investor shall have performed and complied in all material respects with all agreements and covenants required to be performed and complied with by such Party under the Transaction Documents at or prior to the Document Closing.

(j) Owner’s Title Policy. Each of the Title Companies shall be irrevocably committed to issue to Project Company, collectively as equal co-insurers, the Owner’s Title Policy, effective as of the Document Closing Date, insuring the Project Company’s interest in the Site, with full gap coverage in an amount no less than the maximum amount of the DOE Credit Facility.

(k) Proposed Change in Tax Law. There shall have been no material adverse Proposed Change in Tax Law.

(l) Change in Tax Law. There shall have been no material adverse Change in Tax Law that has not already been taken into account as an adjustment to the Base Case Projections to the reasonable satisfaction of Google Investor and NRG Investor.

(m) Absence of Restraints. No Governmental Rule shall have been enacted, entered or promulgated prohibiting the consummation of the transactions contemplated hereby or the construction, operation or maintenance of the Project, and no Governmental Judgment shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby or the construction, operation or maintenance of the Project.

(n) Absence of Material Adverse Effect. Since the Effective Date, there shall not have been any event, change, occurrence or state of facts that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect.

(o) Insurance. Each Investor shall have received reasonably satisfactory evidence that the Required Insurance is in full force and effect.

(p) Satisfaction of DOE Loan Conditions. Each of the following shall have been satisfied: (A) the conditions precedent required by FFB and DOE to execute and

deliver the DOE Credit Facility Documents and the Common Agreement, (B) each of the conditions precedent set forth in Article 4 of the Common Agreement to make DOE’s and FFB’s funding commitment effective as set forth in such documents, and (C) the conditions precedent to submission of a Master Advance Notice and related certifications by the Project Company, which Master Advance Notice and related certifications will be submitted at the Document Closing pursuant to Section 2.1(b)(vi), in each case other than (1) each of Google Investor’s and NRG Investor’s completion of the Document Closing Actions for which it is responsible and (2) conditions that will be satisfied upon or prior to the Escrow Release.

(q) Delivery of Financial Statements. Sponsor shall have provided each of the Investors with accurate and complete copies of its most recent unaudited quarterly Financial Statements and any other financial information delivered to the DOE or any Investor no later than ten (10) Business Days prior to the Document Closing Date.

(r) Release of Sponsor Lender’s Security Interests. The documentation required to release all Liens on the assets of, and any equity interests in, the Project Company held by the lenders under the Sponsor Loan shall have been prepared and delivered to Escrow Agent in order to enable Escrow Agent to release such Liens concurrently with the Escrow Release in accordance with the Escrow Agreement.

(s) Opinions. Sponsor shall have delivered to each Investor each of the following legal opinions dated the Document Closing Date, addressed to each Investor and in form and substance reasonably acceptable to each Investor:

(i) from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, a legal opinion substantially in the form attached hereto as Exhibit A with respect to this Participation Agreement;

(ii) from in house counsel to Sponsor, a legal opinion substantially in the form attached hereto as Exhibit B with respect to this Participation Agreement;

(iii) from ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP or another law firm reasonably acceptable to each Investor, a legal opinion substantially in the form attached hereto as Exhibit C with respect to each Project Entity and the enforceability of certain Transaction Documents under California law;

(iv) from ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP or another law firm reasonably acceptable to each Investor, a legal opinion substantially in the form attached hereto as Exhibit D with respect to each Project Entity and the enforceability of certain Transaction Documents under New York law;

(v) from ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. or another law firm reasonably acceptable to each Investor, a legal opinion substantially in the form attached hereto as Exhibit E with respect to permitting matters;

(vi) from ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP or another law firm reasonably acceptable to each Investor, a legal opinion substantially in the form attached hereto as Exhibit F, with respect to eligibility for the Cash Grant; and

(vii) from KPMG LLP, a reliance letter in the form attached hereto as Exhibit G with respect to the report, dated January 21, 2011, delivered by KPMG LLP on the costs of the Project that are eligible for the Cash Grant.

2.3 Additional Conditions Precedent to the Obligations of Google Investor and NRG Investor at Document Closing.

(a) Google Investor Determination of Cash Grant Amount. The obligations of Google Investor to consummate its Document Closing Actions at the Document Closing shall be subject to the additional condition, at Document Closing, that Google Investor shall not have determined in good faith that the Cash Grant for which the Project is eligible is less than the amount specified in the Base Case Projections, except to the extent that the terms of Google Investor’s equity investment being made pursuant hereto has been adjusted to its reasonable satisfaction to take into account such lower amount.

(b) NRG Investor Internal Rate of Return. The obligation of NRG Investor to consummate its Document Closing Actions at the Document Closing shall be subject to the additional condition, at Document Closing, that the project and partnership financial model referenced in excel file “20110402 Partnership Modelv7.xlsx” used by Sponsor and NRG Investor as of the Effective Date to determine NRG Investor’s levered after-tax internal rate of return (“IRR”) for the Project continues to show an IRR to NRG Investor over the life of the Power Purchase Agreement for the Project of no less than [*] and, if not, the Class B Adjustment Percentage (as defined in the Master Holdco LLC Agreement) shall be established at a level such that NRG Investor is projected to achieve a [*] IRR for the Project.

(c) Google Investor Internal Rate of Return. The obligation of Google Investor to consummate its Document Closing Actions at the Document Closing shall be subject to the additional condition, at Document Closing, that the project and partnership financial model referenced in excel file “20110402 Partnership Modelv7.xlsx” used by Sponsor and Google Investor as of the Effective Date to determine Google Investor’s IRR for the Project and the Other Projects continues to show an IRR to Google Investor over the life of the Power Purchase Agreement for the Project and the Other Projects of no less than [*] in the aggregate and, if not, the Class C Adjustment Percentage (as defined in the Master Holdco LLC Agreement) shall be established at a level such that Google Investor is projected to achieve a [*] IRR for the Project and the Other Projects in the aggregate.

2.4 Conditions Precedent to the Obligations of Sponsor and Sponsor Investor at Document Closing. The obligations of Sponsor and Sponsor Investor to cause the Sponsor Parties to consummate their applicable Document Closing Actions at the Document Closing shall be subject to the fulfillment, at or before Document Closing, of each of the following conditions (any or all of which may be waived in whole or in part by Sponsor and Sponsor Investor in their sole discretion):

(a) Document Closing Actions. Each Investor (other than Sponsor Investor) shall have tendered performance of its respective Document Closing Actions.

*	Confidential Treatment Requested

(b) Representations and Warranties. Each of the representations and warranties of each Investor (other than Sponsor Investor) set forth in this Participation Agreement shall be true and correct in all material respects as of the Document Closing. Sponsor shall have received, reviewed and approved the form and substance of any disclosure schedules delivered by each Investor (other than Sponsor Investor) in connection with its respective representations and warranties under this Participation Agreement.

(c) Officer’s Certificates. Each Investor (other than Sponsor Investor) shall have delivered to Sponsor an officer’s certificate of an authorized officer of such Investor (i) certifying that each of the relevant conditions in Section 2.2 has been fulfilled to the satisfaction of such Investor, as applicable, or has been waived by such Investor, (ii) certifying that each of its representations and warranties in this Participation Agreement was true and correct at and as of the Effective Date and is true and correct at and as of the Document Closing Date (as provided in Section 2.4(b)) and (iii) attaching (A) accurate and complete copies of the organizational documents of such Investor, (B) resolutions of such Investor authorizing the execution of the Transaction Documents to which such Investor is a party, and (C) good standing or similar certificates of such Investor.

(d) Incumbency Certificates. Each Investor shall have delivered to Sponsor certificates of incumbency from the secretary or assistant secretary of such Investor as to the officers of such Investor who sign the Transaction Documents on behalf of such Investor, as applicable.

(e) Compliance with Covenants. Each Investor (other than Sponsor Investor) shall have performed and complied in all material respects with all agreements and covenants required to be performed and complied with by such Party under this Participation Agreement at or prior to the Document Closing.

(f) Absence of Restraints. No Governmental Rule shall have been enacted, entered or promulgated prohibiting the consummation of the transactions contemplated hereby or the construction, operation or maintenance of the Project, and no Governmental Judgment shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby or the construction, operation or maintenance of the Project.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES

3.1 Representations and Warranties of All Parties. Each Party hereby represents and warrants to each other Party as of the Effective Date and the Document Closing Date as follows (unless another date is specified, in which case such Party so represents and warrants only as of such date), except as set forth in the applicable disclosure schedule that corresponds to the subsection of this Section 3.1; provided that any matter disclosed in any disclosure schedules shall be deemed disclosed for purposes of all representations and warranties under this Participation Agreement to the extent it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other Sections.

(a) Authority. Such Party has the requisite power and authority to enter into this Participation Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby, and all necessary actions by the board of directors, shareholders, managers, members, partners, trustees, beneficiaries or other applicable Persons necessary for the due authorization, execution, delivery and performance of this Participation Agreement have been duly taken. This Participation Agreement has been duly executed and delivered by such Party and (assuming due authorization, execution and delivery by the other Parties) constitutes the valid and binding obligations of such Party, enforceable against it in accordance with its terms, subject to the effects of Insolvency Proceedings, reorganization, moratorium and similar Laws affecting enforcement of creditors’ rights and remedies generally and to general principals of equity.

(b) Absence of Litigation. No litigation, action, investigation, event, or proceeding is pending or, to the best of such Party’s knowledge is threatened by any Person or Governmental Authority against such Party, that, if adversely resolved, would result in a Material Adverse Effect.

(c) No Brokers. No Person has or will have, as a result of any act or omission of the Party, any right, interest or valid claim against any other Party for any commission, fee or other compensation as a finder or broker, or in any similar capacity, in connection with the transactions contemplated by this Participation Agreement.

(d) Insolvency Proceedings. No Insolvency Proceedings have been commenced or are continuing with respect to such Party.

(e) Disqualified Person. Such Party is not a Disqualified Person.

3.2 Representations and Warranties Relating to the Project Entities and Project. Sponsor represents and warrants to each Investor on the Effective Date and the Document Closing Date as follows (unless another date is specified, in which case such Party so represents and warrants only as of such date), except as set forth in the applicable Sponsor Disclosure Schedule that corresponds to the subsection of this Section 3.2; provided that any matter disclosed in any disclosure schedules shall be deemed disclosed for purposes of all representations and warranties under this Participation Agreement to the extent it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other Sections:

(a) Organization. Each Sponsor Party (i) is a limited liability company duly organized, validly existing and in good standing under the Laws of Delaware, (ii) where required, is duly qualified to do business in Delaware, California and in each other jurisdiction where the failure to so qualify could reasonably be expected to have a Material Adverse Effect, and (iii) has all requisite limited liability company power and authority to (w) own or hold under lease or other contractual agreements and operate the property it purports to own or hold under lease or other contractual agreements, (x) carry on its business as now being conducted and as now proposed to be conducted in respect of the Project, (y) incur Indebtedness and create Liens on its properties, and (z) execute, deliver, perform and observe the terms and conditions of each of the Transaction Documents to which it is a party.

(b) Authorization; No Conflict. Each Sponsor Party has all requisite power and authority to execute and deliver the Transaction Documents to which it is a party, and neither its execution and delivery thereof nor its consummation of the transactions contemplated thereby nor its compliance with the terms thereof (i) does or will contravene its Organizational Documents or any other Governmental Rules, (ii) does or will contravene or result in any breach or constitute any default under any Governmental Judgment, (iii) does or will contravene or result in any breach or constitute any default under, or result in or require the creation of any Lien upon any of its revenues, properties or assets under any agreement or instrument to which it is a party or by which it or any of its revenues, properties or assets may be bound, except for Permitted Liens, or (iv) does or will require the consent or approval of any Person other than the Required Consents and any other consents or approvals that have been obtained, and are in full force and effect.

(i) Each Transaction Document to which a Sponsor Party is or will be a party shall, upon execution and delivery by the relevant parties thereto, be a legal, valid and binding obligation of such Sponsor Party enforceable against such Sponsor Party in accordance with its terms, subject to Bankruptcy Laws and general principles of equity regardless of whether enforcement is considered in a proceeding at Law or in equity.

(ii) To Sponsor’s Knowledge, each Transaction Document is, or upon the execution and delivery by the relevant parties thereto will be, the legal, valid and binding obligation of each other party thereto (other than each Sponsor Party), enforceable against such party in accordance with its terms, subject to Bankruptcy Laws and general principles of equity regardless of whether enforcement is considered in a proceeding at Law or in equity.

(d) Capitalization.

(i) Ownership. As of the Effective Date and through the period ending immediately prior to the Document Closing, (i) Sponsor Investor will own 100% of the issued and outstanding Equity Interests of Master Holdco, (ii) Master Holdco will own 100% of the issued and outstanding Equity Interests of Project Holdco, and (iii) Project Holdco will own 100% of the issued and outstanding Equity Interests of the Project Company.

(ii) Options, Etc. Other than the Equity Interests to be issued by Master Holdco at the Document Closing contemplated by this Participation Agreement, (i) there are no outstanding options or rights for conversion into or acquisition, purchase or transfer of Equity Interests in any Project Entity, (ii) there are no agreements or arrangements for the issuance by any Person of additional Equity Interests in any Project Entity, and (iii) no Person has outstanding (x) any securities convertible into or exchangeable for any Project Entity’s Equity Interests, or (y) any rights to subscribe for or to purchase, or any option for the purchase of, or any agreement, arrangement or understanding providing for the issuance (contingent or otherwise) of, or any call, loan commitment or claims of any character relating to, any Project Entity’s Equity Interests.

(iii) Valid Interests. The NRG Closing Date Interest, the Google Closing Date Interest, and all Equity Interests to be issued by Master Holdco at the Document Closing will, when issued, constitute a limited liability company interest in Master Holdco, free and clear of any Liens except for obligations imposed on members of Master Holdco under the Master Holdco LLC Agreement.

(e) Investments; Subsidiaries. None of the Project Entities has made any Investments other than Permitted Investments. None of the Project Entities has any subsidiaries or beneficially owns the whole or any part of the Equity Interests of any other Person except as described in clause (d) of this Section 3.2.

(f) Title. The Project Company owns and has, or as of the Document Closing Date will have, a valid right-of-way interest in the Site, and will have valid and beneficial title to all of its other real and personal property and other assets, rights and revenues, of the Project, in each case free and clear of any Lien of any kind except for Permitted Liens, and (ii) each Project Entity owns and has, or will have, valid legal and beneficial title to, 100% of the issued and outstanding Equity Interests of its respective Subsidiary (as described in Section 3.2(d)(i)), in each case free and clear of any Lien of any kind other than the Liens of the Pledged Equity Interests granted under the DOE Credit Facility Documents at the Document Closing Date.

(g) Leases. Without limiting the generality of Section 3.2(c), any Leases or Capital Leases material to the Project in existence on the date of this representation and under which the Project Company is a lessee are valid and subsisting, the Project Company is not in default in any material respect under any of such Leases or Capital Leases, and the Project Company enjoys peaceful and undisturbed possession of the property subject to the terms of such Leases or Capital Leases and the right to continue to enjoy such possession of such property during the time when such property is necessary for the Project.

(h) Liens. Except for Permitted Liens, none of the Project Entities has created, or is under any agreement to create, nor does there exist, any Lien upon any of its revenues, properties or assets. As of the Document Closing Date, there are no Liens on the Pledged Equity Interests other than Liens granted under the DOE Credit Facility Documents as of the Document Closing Date and the Pre-Funding Encumbrances and those certain Liens granted to the Power Purchaser in connection with the Power Purchase Agreement.

(i) Governmental Approvals; Other Required Consents.

(i) Disclosure. Schedule 3.2(i)(i) to this Participation Agreement sets forth all consents and approvals, including all Governmental Approvals, that are required in connection with the Transaction Documents and to construct, operate, and maintain the Project (other than authorizing resolutions and similar corporate matters) (the “Required Consents”), in a format:

(A) distinguishing (x) each Governmental Approval that is discretionary, from (y) each Governmental Approval that is ministerial, from (z) each other Required Consent that is not a Governmental Approval;

(B) distinguishing (x) each Governmental Approval and other Required Consent required to be obtained on or before the Document Closing Date, from (y) each Governmental Approval and other Required Consent that, to Sponsor’s Knowledge, is required to be obtained at a later stage in the development of the Project, and identifying the stage at which it is required to be obtained;

(C) identifying each Governmental Approval and other Required Consent to be obtained (w) by the Project Company, (x) by the EPC Contractor, (y) by the Operator, and (z) by any other Person whose performance is required in order for the Project Company to construct, operate and maintain the Project;

(D) identifying each Governmental Approval and other Required Consent that has been obtained or will have been obtained as of the Document Closing Date, and each application for a Governmental Approval or other Required Consent that has been submitted as of the Document Closing Date;

(E) identifying each Governmental Approval and other Required Consent that (x) has been obtained but is no longer in full force and effect, (y) is under appeal or subject to other proceedings that could reasonably be expected to result in a material modification or cancellation thereof, or (z) is subject to unsatisfied conditions, with a general description of such conditions.

(ii) Status. The Governmental Approvals and other Required Consents specified pursuant to Section 3.2(i)(i) together constitute all of the Governmental Approvals and other Required Consents necessary under the applicable laws to construct, operate, and maintain the Project, except for permits and approvals required for non-routine maintenance outside the Ordinary Course of Business.

(A) (x) Each Governmental Approval specified pursuant to Section 3.2(i)(i)(A)(x) as being discretionary has been obtained as of the Document Closing Date; (y) each Governmental Approval specified pursuant to Section 3.2(i)(i)(A)(y) as being ministerial either (i) has been obtained as of the date of the representation, or (ii) is not required to have been obtained as of the date of the representation, and can reasonably be obtained as a matter of course upon performance of certain pre-defined conditions and at nominal or budgeted cost on or before the date such Governmental Approval will be required to permit the timely construction, operation, use, ownership, and routine maintenance (including routine major maintenance) of the Project; and (z) each Required Consent specified pursuant to Section 3.2(i)(i)(A)(z) as not being a Governmental Approval that is required as of the Document Closing Date has been obtained as of the Document Closing Date.

(B) Each Governmental Approval specified pursuant to Section 3.2(i)(i)(B)(x) as being required to be obtained as of the Document Closing Date has been obtained.

(C) Each Governmental Approval and other Required Consent specified pursuant to Section 3.2(i)(i)(C) as being required to be obtained by the EPC Contractor, the Operator, or any other Person (other than the Project Company) either (x) has been obtained

as of the date of the representation, or (y) is not required to have been obtained as of the date of the representation, and is required pursuant to the terms of the Project Documents to be obtained by such Person on or before the date such Governmental Approval will be required to permit the timely construction, operation, use, ownership, and routine maintenance (including routine major maintenance) of the Project.

(D) The Project Company has Made Available to the Investors a true and complete copy of (x) each Governmental Approval and each other Required Consent that has been obtained as of the date of the representation, and (y) each application for a Governmental Approval or other Required Consent that has been submitted as of the date of the representation; and the Project Company has not done or omitted to do anything that would jeopardize the issuance of a Required Consent for which the Project Company has applied.

(E) With respect to each Governmental Approval and other Required Consent required to have been obtained as of the date of this representation, (x) such Governmental Approval or other Required Consent has been issued by the appropriate governmental authority or other Person, is in full force and effect, and is not then under appeal or subject to other proceedings or unsatisfied conditions that as of such date could reasonably be expected to result in a material modification or cancellation of it; (y) the Project Company is in material compliance with such Governmental Approval or other Required Consent, and any non-compliance by the Project Company with such Governmental Approval or other Required Consent could not reasonably be expected to have a Material Adverse Effect; and (z) with respect to each Governmental Approval, the Sponsor has no Knowledge of any material failure to comply with the procedural requirements of the applicable laws governing the issuance of such Governmental Approval, and the time period under applicable law within which a third party could commence a legal proceeding challenging the issuance of such Governmental Approval has lapsed. With respect to each Governmental Approval and other Required Consent required to be obtained following the date of this representation, to Sponsor’s Knowledge, all such Governmental Approvals and other Required Consents are capable of being obtained on or prior to the date on which such Governmental Approvals and other Required Consents will be required to have been obtained.

(j) Litigation; Labor Disputes.

(i) Except as set forth on Schedule 3.2(j)(i) to this Participation Agreement, none of the Sponsor Parties has received written notice of, nor to the Sponsor’s Knowledge does their exist, any pending or threatened action, suit, proceeding, or investigation by, of or before a Governmental Authority, of any kind (i) that relates to any transactions contemplated by any of the Transaction Documents or (ii) to which such Sponsor Party or, to Sponsor’s Knowledge, any Major Project Participant is a party, in either case, that has had or could reasonably be expected to have a Material Adverse Effect.

(ii) None of the Sponsor Parties has received written notice, and Sponsor does not otherwise have Knowledge, of any injunction, writ, or preliminary restraining order of any nature issued by an arbitrator, court or other Governmental Authority directing that any of the transactions provided for in any of the Transaction Documents not be consummated as

herein or therein provided. To Sponsor’s Knowledge, no such injunction, writ, or preliminary restraining order exists.

(iii) There has been no strike, slowdown or work stoppage by the employees of any of the Sponsor Parties or, to Sponsor’s Knowledge, any Major Project Participant that is ongoing, or, to Sponsor’s Knowledge, currently threatened, that has caused, or could reasonably be expected to cause, a Material Adverse Effect.

(iv) Each of the Sponsor, BSII, BSCM and BSOI has valid and binding non-disclosure and assignment of invention agreements with all of its respective employees.

(v) None of the Project Entities has any employees.

(k) Tax.

(i) General. Each Project Entity has filed all material tax returns required by Governmental Rules to be filed by it and has paid (i) all income taxes payable by it that have become due pursuant to such tax returns and (ii) all other taxes and assessments payable by it that have become due (other than those taxes that it is contesting in good faith and by appropriate proceedings, for which reserves have been established to the extent required by GAAP) except for those taxes and assessments the non-payment of which would not result in a Material Adverse Effect. Each Project Entity has paid or has provided cash or cash-equivalent reserves adequate in the reasonable judgment of such Project Entity’s management and consistent with GAAP for the payment of all income and other material taxes imposed on it by the applicable Governmental Authority for all prior Fiscal Years and accrued for the current Fiscal Year to the date of such representation, which reserves shall be in an amount at least equal to the full assessed amount of such tax. None of the Project Entities has any current or accrued material tax liability that is not specifically reflected in the Base Case Projections as in effect at and as of the Document Closing Date and in the Construction Plan Budget & Schedule or as reflected in the assumptions in the then applicable Operating Plans, as the case may be. Each Project Entity does and has always qualified as an entity disregarded as separate from its owner for federal income tax purposes.

(ii) None of the Project Entities has requested or had requested on its behalf or agreed to any waivers or comparable consents to extension of the statute of limitation with respect to Taxes and is not currently the subject of any audit or other examination or other administrative or court proceeding with respect to Taxes and none have been threatened in writing. None of the Project Entities has received any notice or inquiry from any jurisdiction where Tax Returns have not been filed that Tax Returns may be required. None of the Project Entities has any powers of attorney relating to Taxes in effect.

(iii) Withholding Tax. Except as set forth on Schedule 3.2(k)(iii) to this Participation Agreement, at and as of the Document Closing Date, no withholding taxes are payable by any Project Entity to any Governmental Authority in connection with any amounts payable by such Project Entity under or in respect of the Equity Documents; provided that each Investor has qualified and provided for the appropriate forms for waiver of California state income tax withholding.

(l) Business, Indebtedness, Contracts, Etc. None of the Project Entities has conducted any business other than the business contemplated by the Transaction Documents and such other business as may be related to the Project. None of the Project Entities is a party to or bound by any contract other than those contracts permitted under the Transaction Documents, as applicable.

(m) Transactions with Affiliates. Except for the Project Documents and Transaction Documents as in effect on the Document Closing Date, none of the Project Entities is a party to any of the following, whether or not in the Ordinary Course of Business: (i) any loan commitment to any Affiliate of such Project Entity, (ii) any other contract or agreement with any Affiliate of such Project Entity, or (iii) any agreement requiring the payment of development fees or success fee to any Affiliate of such Project Entity or any other Person.

(n) Environmental Laws.

(i) The Project Company (i) has been issued all Governmental Approvals required as of the time of this representation pursuant to Environmental Law (“Environmental Approvals”) except to the extent non-issuance of such Governmental Approval could not reasonably be expected to result in a Material Adverse Effect, and (ii) has received no complaint, order, directive, claim, citation or notice by any Governmental Authority (that has not been disclosed to the extent required by the Equity Documents), in each case relating to its then-existing obligations or liabilities with respect to: (A) air emissions, (B) discharges to surface water or ground water, (C) noise emissions, (D) solid or liquid waste disposal, (E) the presence, use, generation, storage, transportation or disposal of or exposure to Hazardous Substances, or (F) other environmental, health or safety matters and, except to the extent such complaint, order, directive, claim, citation or notice by any Governmental Authority could not reasonably be expected to result in a Material Adverse Effect.

(ii) Except as set forth on Schedule 3.2(n)(ii), there is no action, suit, proceeding or investigation pursuant to Environmental Law by, of or before a Governmental Authority with respect to the Project, the Project Company or the Project Site that is either pending or threatened in writing.

(iii) Except as set forth on Schedule 3.2(n)(iii) to this Participation Agreement, neither the Project Company nor, to Sponsor’s Knowledge, any Person, has used, Released, discharged, generated, manufactured, produced, stored, or disposed of in, on, under or about the Site or transported thereto or therefrom, any Hazardous Substances in a manner that could reasonably be expected to have a Material Adverse Effect.

(iv) Schedule 3.2(n)(iv) to this Participation Agreement discloses, to Sponsor’s Knowledge, each condition, circumstance, action, activity or event with respect to the Project, the Project Company or the Site that is a violation of any Environmental Law or Environmental Approval. No such condition, circumstance, action, activity or event could reasonably be expected to result in an enforcement of any Environmental Law against the Project Company or with regard to the Project or have a Material Adverse Effect.

(v) Sponsor has Made Available to Investors true and complete copies of all material environmental reports, studies, assessments and audits, and any other material documents and correspondence, in each case relating to environmental matters in connection with the Site.

(o) Investment Company Act; PUHCA; Public Utility.

(i) None of the Project Entities is, or will be, as a result of its participation in the transactions contemplated by the Transaction Documents, (i) required to register as an “investment company” (ii) “controlled” by a company required to register as an “investment company” under the Investment Company Act, or (iii) a “holding company” as defined in PUHCA and 18 C.F.R. § 366.1 that is not entitled to the exemptions and waivers set forth in 18 C.F.R.§366.3.

(ii) No Equity Interest of the Project Company is owned directly or indirectly by a Person that is a PUHCA Holding Company that is not an Exempt Holding Company.

(p) Regulation of Parties. None of the Investors shall, solely by reason of its ownership or operation of the Project, be subject to regulation as a PUHCA Holding Company that is not entitled to the exemptions and waivers set forth in 18 C.F.R.§366.3, and other than as a result of the Non-Sponsor Investor Status.

(q) Corrupt Practices Laws.

(i) Each Project Entity, the Sponsor and each of its Affiliates, and each of their respective Principal Persons, employees and agents have complied with all applicable Corrupt Practices Laws in obtaining any consents, licenses, approvals, authorizations, rights, or privileges with respect to the Project.

(ii) Each Project Entity, the Sponsor and each of its Affiliates, and each of their respective Principal Persons, employees and agents are conducting the Project and the Project Company’s business in compliance with all applicable Corrupt Practices Laws.

(iii) The internal management and accounting practices and controls of each Project Entity, the Sponsor and each of its Affiliates, are adequate to ensure compliance with all Corrupt Practices Laws.

(r) ERISA.

(i) No Project Entity or any of its respective ERISA Affiliates sponsors, maintains, participates in, contributes to or has any liability in respect of any Pension Plan or Multiemployer Plan.

(ii) Except to the extent required under Sections 601 through 609 of ERISA and Section 4980B of the Code (or comparable state Laws), no Project Entity provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or

former employee nor is it obligated to provide health or welfare benefits to any active employee following such employee’s retirement or other termination of service.

(iii) To the Knowledge of Sponsor, the execution and delivery of this Participation Agreement and the consummation of the transactions contemplated hereunder will not involve any transaction that is subject to the prohibitions of Section 406 of ERISA or in connection with which taxes could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code.

(iv) (A) None of the Project Entities is or will be a “plan” within the meaning of Section 4975(e) of the Code; (B) the assets of each Project Entity do not and will not constitute “plan assets” within the meaning of the United States Department of Labor Regulations set forth in 29 C.F.R. 2510.3-101; and (C) none of the Project Entities is or will be a “governmental plan” within the meaning of Section 3(32) of ERISA, in each case other than as a result of the Non-Sponsor Investor Status.

(s) Insurance. As of the Document Closing, all Required Insurance to be obtained and maintained for the Project pursuant to Section 6.3 of the Common Agreement is in full force and effect.

(t) Intellectual Property.

(i) The Project Company owns or holds a valid and enforceable license or right to use the Technology and the Intellectual Property Rights necessary to conduct the business of the Project Company, including to (i) construct, operate, use and maintain the Project including using software, equipment and materials supplied under the Project Equipment Supply Agreements and the Construction Documents; and (ii) exercise its rights and perform its obligations under the Operating Documents, the Project Equipment Supply Agreements and the Construction Documents in connection with the Project.

(ii) (A) The Technology and Intellectual Property Rights (i) owned by the Project Company; (ii) licensed or otherwise made available to the Project Company under the Project Equipment Supply Agreements, the Construction Documents and the Source Code Escrow Agreement, or (iii) delivered to the Project Company in connection with the Project Equipment Supply Agreements, the Construction Documents or the Source Code Escrow Agreement, as applicable, and the use thereof by the Project Company, and (B) the conduct of the business of the Project Company, including to carry out and operate the Project and any process, method, substance, part or other material currently employed or presently contemplated to be employed by the Project Company, do not infringe upon or misappropriate the Intellectual Property Rights of any other Person, except where such infringement or misappropriation of such Intellectual Property Rights or such other rights could not reasonably be expected to have a Material Adverse Effect.

(iii) The Project Company has the right to receive and, at the times required for operation of the Project will be in possession of, copies of the software, documentation, drawings, designs, processes, procedures and other tangible embodiments of the Technology necessary to complete development of and operate the Project.

(u) No Defaults. No Event of Default or Potential Default has occurred and is continuing. There is no breach by any Sponsor Party of any material obligation under any Project Document, as applicable, and no notice of breach of any material obligation under any Project Document has been issued, entered or received by any Sponsor Party and, to Sponsor’s Knowledge, no party (other than any Sponsor Party) is in breach of any material obligation under any Project Document.

(v) No Judgment Liens; No Indebtedness.

(i) None of the Project Entities has (i) a judgment lien against any of its respective property, including for a debt owed to the United States of America or any other Person or (ii) an outstanding debt (other than a debt under the Code) owed to the United States of America or any agency thereof that is in delinquent status, as the term “delinquent status” is defined in 31 C.F.R. § 285.13(d).

(ii) None of the Project Entities, in accordance with Section 609.10(d)(21) of the Applicable Regulations, has owed any delinquent Indebtedness to any Governmental Authority of the United States, including tax liabilities, unless the delinquency (and all associated penalties and interest) has been resolved with the appropriate Governmental Authority pursuant to the standards of the Debt Collection Improvement Act.

(iii) None of the Project Entities has outstanding Indebtedness other than Permitted Indebtedness and none of the Project Entities has other liabilities other than those permitted under the Loan Documents.

(w) Sufficiency of Project Documents.

(i) The Project Documents, collectively, constitute all documents necessary for the construction, completion and operation of the Project, except for additional documents for the procurement of those items commercially available to the Project at the Site on terms consistent with the Construction Plan Budget & Schedule and the Base Case Projections.

(ii) All easements, leasehold and other property interests, including with respect to the Shared Facilities, and all utility and other services, means of transportation, facilities, other materials and other rights that could reasonably be expected to be necessary for the construction, completion and operation of the Project in accordance with Governmental Rules and the Transaction Documents (including gas, electrical, water and sewage services and facilities) have been procured under the Project Documents or are commercially available to the Project at the Site on terms consistent with the Construction Plan Budget & Schedule and the Base Case Projections and, to the extent appropriate, arrangements have been made on terms consistent with the Construction Plan Budget & Schedule and the Base Case Projections for such easements, interests, services, means of transportation, facilities, materials and rights.

(iii) A true, complete and correct copy of each of the Project Documents has been Made Available to each Investor (including all exhibits, schedules, protocols and side letters referred to therein or delivered pursuant thereto, if any, and all amendments, modifications, additions, waivers thereto or thereof). No Project Document has

been amended or modified since such Project Document was Made Available to each Investor. Prior to the execution of each such Project Document entered into on or prior to the date this representation is made, the Sponsor believed, after having made a reasonable investigation with respect thereto, that each party to each such Project Document would be able to carry out its obligations in accordance therewith and nothing has come to the attention of the Sponsor to cause it to believe that any such party will not be able to carry out its obligations in accordance therewith except as has been disclosed to the extent required under the Transaction Documents.

(iv) All Project Documents listed on Schedule 2.2(f)(ii) to this Participation Agreement required or necessary for the Project at the time of this representation have been executed by each Person that is a party thereto, and as of the time of this representation all conditions precedent to the obligations of the respective parties under such Project Documents that are intended to be effective as of the time of this representation have been satisfied or where required, waived.

(v) To Sponsor’s Knowledge, all representations, warranties and other factual statements made by each party to each of the Project Documents (other than the Project Company) are true and correct in all material respects.

(vi) After conducting due inquiry in accordance with Prudent Electric Power Industry Standards, Sponsor has a reasonable belief that the Project will fulfill in all material respects the design specifications and requirements contained in the Transaction Documents and deliver electric power in the quantities and at the times set forth in the Base Case Projections.

(x) Financial Statements. Each of the Financial Statements of the Project Entities and the Sponsor Made Available to the Investors has been prepared in accordance with GAAP applied on a consistent basis both as to classification of item and amounts (except for the absence of footnotes and normal year-end adjustments in the case of unaudited financial statements) and presents fairly in all material respects the financial condition of such Project Entity or the Sponsor, as applicable, as of the respective dates of the balance sheets included therein and the results of operations of such Project Entity or the Sponsor for the respective periods covered by the statements of income included therein. The Financial Statements of the Sponsor have been prepared on a consolidated basis (including the Project Company), and a separate balance sheet of the Project Company has been prepared and Made Available. In the case of the Project Company, except as reflected in such Financial Statements, there are no liabilities or obligations of any nature whatsoever for the period to which such Financial Statements relate that are required to be disclosed in accordance with GAAP.

(y) Construction Plan Budget & Schedule; Operating Budget and Base Case Projections.

(i) The Construction Plan Budget & Schedule as amended by Approved Construction Changes, the current Base Case Projections and the current Operating Budget (i) are complete in all material respects and based on reasonable assumptions, (ii) are consistent with the provisions of the Project Documents in all material respects, (iii) have been prepared in good faith and with due care, and (iv) fairly represent the Sponsor’s expectation as to

the matters covered thereby as of the date of the representation. The Parties hereby acknowledge and agree that projections as to future events are not to be viewed as facts and that the actual results during the period or periods covered by the Base Case Projections may materially vary from the projected results.

(ii) The Construction Plan Budget & Schedule, as amended or supplemented by Approved Construction Changes, accurately specifies in summary form the Construction Work that each Construction Contractor proposes to complete on or before the deadlines specified therein.

(iii) The Construction Budget, as amended or supplemented by Approved Construction Changes, represents the Sponsor’s reasonable estimate of all costs and expenses anticipated by the Sponsor to be incurred to construct the Project in the manner contemplated by the Construction Plan Budget & Schedule and the Transaction Documents.

(iv) Sponsor’s good faith estimate and belief is that (i) Physical Completion and Operational Completion will occur no later than the Anticipated Operational Completion Date, (ii) Total Project Costs will not exceed Base Project Costs, and (iii) each of Total Project Costs, Base Project Costs, Eligible Base Project Costs and Ineligible Base Project Costs will not exceed the respective amounts therefor set forth in the Financial Plan. Nothing has occurred to cause Sponsor to believe that the Construction Plan Budget & Schedule, as amended or supplemented by Approved Construction Changes, and Base Case Projections are unreasonable in any material respect.

(iv) Defined terms used in this Section 3.2(y), but not defined herein, shall have the meanings given to such terms in the Common Agreement.

(z) Sufficient Funds. The Sponsor estimates in good faith that the Total Funding Available to the Project Company (i) will be sufficient to carry out the Project in accordance with the Construction Milestone Schedule, including adequate contingency funds for identified Cost Overruns and (ii) equals or exceeds Total Project Costs.

(aa) Fees and Enforcement. Other than amounts that have been paid in full or with respect to which arrangements satisfactory to the affected credit parties under the DOE Credit Facility have been made, no fees or taxes including documentary, stamp, transaction, registration, or similar taxes are required to be paid to ensure the legality, validity, enforceability, priority or admissibility in evidence in applicable jurisdictions of any Transaction Documents.

(bb) Immunity. In any proceedings in connection with any Transaction Document to which a Sponsor Party is a party, such Sponsor Party has not been and will not be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal processes, subject to Bankruptcy Law.

(cc) No Other Powers-of-Attorney, Etc. None of the Project Entities has executed and delivered any powers of attorney or similar documents, except the power of attorney granted to DOE with respect to the Cash Grant and except as provided (i) to its

respective directors, agents, representatives and employees in the Ordinary Course of Business, and (ii) in connection with Permitted Liens.

(dd) No Additional Fees. Except as set forth on Schedule 3.2(dd), none of the Sponsor Parties has paid or become obligated to pay any fee or commission to any broker, finder or intermediary for or on account of arranging the financing of the transactions contemplated by the Transaction Documents.

(ee) Insolvency Proceedings. None of the Sponsor Parties (i) is, to Sponsor’s Knowledge, the subject of any pending or threatened Insolvency Proceedings, and (ii) is in the process of instituting, and has no current intention of instituting, any Insolvency Proceeding.

(ff) No Material Adverse Effect; No Event of Force Majeure.

(i) Material Adverse Effect. Since the date of the most recent Financial Statements that have been Made Available, no Material Adverse Effect has occurred and is continuing nor is there currently any event, change, occurrence or state of facts that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect.

(ii) Force Majeure. No Event of Force Majeure has occurred and is continuing.

(gg) Buy American Provisions. The Project does not involve the construction, alteration, maintenance, or repair of a “public building” or “public work” within the meaning of the Buy American Provisions, and therefore is not subject to the Buy American Provisions.

(hh) Full Disclosure.

(i) The representations and warranties of Sponsor contained in this Participation Agreement, taken together with any other information, statements and documents Made Available to the Investors by or on behalf of the Sponsor either pursuant to this Participation Agreement or to induce the Investors to enter into this Participation Agreement, the Master Holdco LLC Agreement or the other Equity Documents, are, taken as a whole, true and correct in all material respects and do not contain any material misstatement of fact or omit to state a material fact necessary to make the statements contained herein or therein not misleading in light of the circumstances under which they were made (it being understood that such representations, warranties, information, statements and documents are subject to any disclaimers noted therein, that the accuracy of measurements is limited by the measuring equipment used, and that items that are estimates, projections or probability assessments or that are stated to be opinions have been prepared in good faith, but are only estimates, projections, probability assessments or opinions and may not be realized).

(ii) Other than the Equity Documents, there are no agreements between a Sponsor Party on the one side and any other Investor or any Affiliate of an Investor on the other side that is materially related to or contingent upon the Projects.

(iii) None of the Project Entities has entered into any agreement other than the Project Documents and the Loan Documents.

(ii) Cash Grant Application.

(i) The Sponsor Investor is not a Disqualified Person.

(ii) Each of the Project Entities has retained its respective rights to apply for the Cash Grant and has not entered into any agreement to sell any such rights.

(iii) The materials submitted to the U.S. Department of Treasury related to establishing whether the Project had “commenced construction” according to the Cash Grant Guidance, which materials have been Made Available to the Investors, at the time submitted, were in all material respects based on information that was complete and accurate as of the date provided. There are no other written materials that have been submitted to the U.S. Department of Treasury with respect to the Cash Grant other than the materials referred to in the immediately preceding sentence, which materials have been Made Available to the Investors.

(iv) With respect to the factual information provided by Sponsor to support the opinion set forth in Section 2.2(s)(vii):

(A) such information is, in all material respects, based on information that was complete and accurate as of the date provided; and

(B) such information has not changed since the date such information was provided, except:

(1) as reflected in the Base Case Projections; and

(2) to the extent such information is the product of a projection or an estimate, in which case (x) the projection or estimate is Sponsor’s best estimate based on sound reasoning and all of the facts known to the Sponsor (or facts which the Sponsor should know after reasonable investigation) or reasonably expected by Sponsor as of the date made, and (y) such projections or estimates have not changed since the date made except as reflected in the Base Case Projections.

(jj) Foreign Assets Control Regulations, Etc.

(i) To the extent applicable, each Sponsor Party is in compliance, in all material respects, with (i) all Foreign Asset Control Regulations, (ii) all applicable orders, rules and regulations of OFAC, and (iii) the Patriot Act.

(ii) Neither the making of any Advances (as such term is defined in the Common Agreement) nor the use of the proceeds thereof will violate any Foreign Asset Control Regulations or any anti-boycott laws and regulations, other than as a result of the Non-Sponsor Investor Status.

(iii) Neither any Project Entity, the Sponsor, nor any Person who controls a Project Entity or the Project Company, nor any of their members, directors, officers, parents or subsidiaries: (x) is subject to United States or multilateral economic or trade sanctions in which the United States participates, (y) is owned or controlled by, or acts on behalf of, any governments, corporations, entities or individuals that are subject to United States or multilateral economic or trade sanctions in which the United States participates, or (z) is a Prohibited Person or otherwise is named, identified or described on any blocked persons list, designated nationals list, denied persons list, entity list, debarred party list, unverified list, sanctions list or other list of individuals or entities with whom United States persons may not conduct business, including lists published or maintained by OFAC, lists published or maintained by the U.S. Department of Commerce, and lists published or maintained by the U.S. Department of State.

(iv) No event has occurred and no condition exists that is likely to result in any Project Entity, the Sponsor, any Sponsor Affiliate, nor any Person who controls a Project Entity or the Sponsor, nor any of their members, directors, officers, parents or subsidiaries, becoming a Prohibited Person.

(v) To Sponsor’s Knowledge without independent investigation, no Major Project Participant, no Person who owns or Controls any Major Project Participant, nor any of their members, directors, officers, parents or subsidiaries, is a Prohibited Person or otherwise is named, identified or described on any blocked persons list, designated nationals list, denied persons list, entity list, debarred party list, unverified list, sanctions list or other list of individuals or entities with whom United States persons may not conduct business, including lists published or maintained by OFAC, lists published or maintained by the U.S. Department of Commerce, and lists published or maintained by the U.S. Department of State.

(vi) None of the Collateral Security is traded or used, directly or indirectly, by a Prohibited Person or by a Person organized in a Prohibited Jurisdiction.

(vii) Debarment. No event has occurred and no condition exists that is likely to result in the Debarment or suspension of the Project Company from contracting with the U.S. Government or any agency or instrumentality thereof, and the Project Company is not now and has not been subject to any such Debarment or suspension. Neither the Project Company nor any of its Principal Persons are (i) debarred, suspended, proposed for Debarment with a final determination still pending, declared ineligible or voluntarily excluded (as such terms are defined in any of the Debarment Regulations) from participating in procurement or non-procurement transactions with any United States federal government department or agency pursuant to any of the Debarment Regulations, or (ii) indicted, convicted or had a Governmental Judgment rendered against the Project Company or any of its Principal Persons for any of the offenses listed in any of the Debarment Regulations and no event has occurred and no condition exists that is likely to result in the Debarment or suspension of the Project Company from contracting with the U.S. Government or any agency or instrumentality thereof.

(viii) Anti-Terrorism Order. Each Sponsor Party and each of their respective Principal Persons, is in compliance with the Anti-Terrorism Order and has not previously violated the Anti-Terrorism Order.

(ix) No Ownership by Disqualified Person. As of the Document Closing Date, the Project Company is not a Disqualified Person.

3.3 Representations and Warranties of Each Investor. Each Investor (other than Sponsor Investor) hereby represents and warrants to Sponsor and each other Investor on the Effective Date and the Document Closing Date as follows (unless another date is specified, in which case such Party so represents and warrants only as of such date), except as set forth in the applicable disclosure schedule that corresponds to the subsection of this Section 3.3; provided that any matter disclosed in any disclosure schedules shall be deemed disclosed for all representations and warranties under this Participation Agreement to the extent it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other Sections:

(a) Organization. Such Investor (i) is a limited liability company duly organized, validly existing and in good standing under the Laws of Delaware, and (ii) has all requisite limited liability company power and authority to (x) own or hold under lease or other contractual agreements and operate the property it purports to own or hold under lease or other contractual agreements, (y) carry on its business as now being conducted and as now proposed to be conducted in respect of the Project, and (z) execute, deliver, perform and observe the terms and conditions of this Participation Agreement.

(b) Legality, Validity and Enforceability. Each Equity Document to which such Investor is or will be a party shall, upon execution by the relevant parties thereto, be a legal, valid and binding obligation of such Investor enforceable against such Investor in accordance with its terms, subject to Bankruptcy Laws and general principles of equity regardless of whether enforcement is considered in a proceeding at Law or in equity.

(c) Third Party Approvals and Filings. No third party notice, consent, approval or filing (including with any Governmental Authority) is required to be obtained or made by such Investor for the execution, delivery and performance by such Investor of this Participation Agreement or the consummation of the transactions contemplated herein, other than notices, consents, filings or approvals listed on Schedule 3.3(c), and no third party notice, consent, approval or filing (including with any Governmental Authority) is required to be obtained or made by such Investor for the execution, delivery and performance by such Investor of any other Equity Document or the consummation of the transactions contemplated therein, other than notices, consents, filings or approvals listed on Schedule 3.3(c) (collectively, the “Investor Required Approvals”).

(d) No Conflicts. Assuming receipt of board approval of such Investor as delivered to Sponsor pursuant to Section 2.4(c)(iii)(B), as the case may be, the execution and delivery of this Participation Agreement and the other Equity Documents and the consummation of all transactions contemplated herein and therein does not and will not result in any material breach or violation of, or default under, any organizational document of such Investor or any material agreements by which such Investor is a party or by which it is bound or to which any of its assets is subject, or, subject to obtaining Investor Required Approvals, under any Governmental Rules.

ARTICLE 4

CERTAIN COVENANTS

4.1 Consummation of Transactions and Obtaining Approvals. Each Party shall coordinate and cooperate with the other Parties in providing such information and supplying such assistance as may be reasonably requested by such other Party in connection with the consummation of the Document Closing Actions. Without limiting the generality of the foregoing or any other provision of this Participation Agreement regarding approvals, each Party shall use its Commercially Reasonable Efforts to obtain all authorizations, consents, orders, and approvals of, and to give all notices to and make all filings with, all Governmental Authorities (including those pertaining to the Governmental Approvals) and third parties that may be or become necessary for its performance of its obligations under this Participation Agreement and shall cooperate fully with the other Parties in promptly seeking to obtain all such authorizations, consents, orders, and approvals, giving such notices, and making such filings.

4.2 Pre-Document Closing Actions. Except as otherwise expressly contemplated herein or taken with the written consent of each Investor, prior to the Document Closing, Sponsor shall not permit or cause any Project Entity to (i) conduct any business other than business related to the development, construction, financing, ownership and operation of the Project or the Other Projects, as applicable, (ii) take actions which are outside of the ordinary course of its business or inconsistent with past practice and prudent utility practice, (iii) amend or modify its Organizational Documents in any material respect except as required in connection with the consummation of the transactions contemplated by the Transaction Documents, (iv) issue any Equity Interests, (v) agree to convey, sell, lease or otherwise transfer any of its real property interests in the Site, (vi) borrow money or otherwise incur (or enter into any arrangement for the incurrence of) Indebtedness or allow any Lien to be filed against the Project, (vii) wind up, liquidate, or dissolve itself, commence an insolvency proceeding or file any petition or pass a resolution seeking the same, (viii) commit to or make any capital expenditure inconsistent with the Construction Plans, or (ix) take any other action that would require Super-Majority Approval of the Members, Super-Majority Approval of the Directors, Eighty Percent Approval of the Members or Eighty Percent Approval of the Directors (each as defined in the Master Holdco LLC Agreement) under the Master Holdco LLC Agreement if, as of the date of such action, such agreement was in effect.

4.3 Confidentiality.

(a) Confidentiality. No Party shall disclose the non-public terms and conditions of this Participation Agreement, any Transaction Document, any Project Document or any transaction hereunder or thereunder to a third party, other than, and with respect to each Investor, subject to the further restrictions set forth in Section 4.4(c) (i) to its employees, consultants, legal counsel, finance parties, lenders or other agents provided that such Investor informs each such person who has access to such information of the confidential nature of such information, and that each such person is under an obligation to keep such information confidential, (ii) in order to comply with any Governmental Rule, regulation or any exchange, control area or CAISO rule, (iii) in order to comply with any order issued by a court or entity with competent jurisdiction over the disclosing party, (iv) in order to comply with any applicable

regulation, rule or order of FERC, (v) information that is available to the public on the Effective Date or thereafter becomes available to the public other than as a result of a breach of this Section 4.3, (vi) in connection with any public release or announcement permitted under Section 7.10, (vii) as necessary to obtain the consent of any third party required under the terms of this Participation Agreement, or by Sponsor in connection with Section 8.9 of the Master Holdco LLC Agreement, (viii) in connection with any Tax reporting obligation, or (ix) to DOE or FFB as required under the Loan Documents. In connection with requests made pursuant to clauses (iii) or (iv) of this Section 4.3(a) (a “Disclosure Order”), each Party shall use Commercially Reasonable Efforts to notify the other Party prior to disclosing any non-public term or condition of any of the Participation Agreement, Transaction Documents or any Sponsor Confidential Information and use Commercially Reasonable Efforts to prevent or limit such disclosure. After providing notification and using such Commercially Reasonable Efforts to prevent or limit such disclosure, the Party so obligated to disclose such information shall not be (i) prohibited from complying with a Disclosure Order or (ii) liable to the other Party for monetary or other damages incurred in connection with the disclosure of the confidential information. Except as provided in the preceding sentence, each Investor and Sponsor shall be entitled to all remedies available at Law or in equity to enforce, or seek relief in connection with, this confidentiality obligation.

(b) Use of Confidential Information. Nothing in Section 4.3(a) shall be construed as prohibiting a Party hereunder from using any confidential information in connection with (i) any claim against another Party hereunder or (ii) any exercise by a Party hereunder of any of its rights hereunder.

(c) Termination at Document Closing. This Section 4.3 shall terminate and be superseded at the Document Closing by the confidentiality provisions of the Master Holdco LLC Agreement.

4.4 Information Rights.

(a) Access to Information. Prior to the Document Closing, Sponsor, upon reasonable prior written notice, shall give to each Investor, during normal business hours access to the books and records of the Project Entities and the offices, properties, employees and personnel.

(b) Other Information. Prior to the Document Closing, without limiting Sponsor’s obligations under this Section 4.4, Sponsor shall keep each Investor fully informed as to all material developments regarding the Project, including (i) material developments with respect to the Project Documents, (ii) a report on the development status of the Project not less than once each month after the Effective Date, (iii) any comments to the Equity Documents provided by any other Investor, and (iv) all agreements between Sponsor or any Sponsor Affiliate and any Investor or any Affiliate of an Investor that is materially related to or contingent upon the Project.

(c) Confidentiality. Information furnished pursuant to this Section 4.4 shall be held in confidence by each Investor, its respective counsel, financial advisors, auditors and other authorized Representatives in accordance with the provisions of Section 4.3.

4.5 Compliance With Governmental Rules. Prior to the Document Closing, Sponsor shall cause the Project Entities to comply with all Governmental Rules and shall cause the Project Company to maintain its status as an Exempt Wholesale Generator.

4.6 Disqualified Person. Prior to the Document Closing, no Party shall become a Disqualified Person.

4.7 DOE Credit Facility Funding. Each Party shall use its commercially reasonable efforts to take all reasonable actions within its control to cause the anticipated initial funding under the DOE Credit Facility to be made.

ARTICLE 5

TERMINATION

5.1 Termination of Agreement. Without limiting a Party’s ability to exercise any right or remedy to which it is entitled hereunder or under any of the Transaction Documents, this Participation Agreement may be terminated:

(a) by any Party if the Document Closing has not been consummated by 5:00 p.m. (prevailing Eastern time) on the Outside Date; provided, that the right to terminate this Participation Agreement under this Section 5.1(a) shall not be available to any Party whose breach of any obligation under this Participation Agreement has been the cause of, or resulted in, the failure of the Document Closing to occur on or prior to the Outside Date;

(b) by any Party if (i) a Governmental Rule shall have been enacted, entered or promulgated prohibiting the consummation of the transactions contemplated hereby or the construction, operation or maintenance of the Project or (ii) a Governmental Judgment shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby or the construction, operation or maintenance of the Project, and (x) such Governmental Judgment shall have become final and non appealable, (y) the Party seeking to terminate this Participation Agreement pursuant to this Section 5.1(b) shall have used Commercially Reasonable Efforts to remove the effects of such Governmental Judgment, and (z) such Party shall have complied with its obligations under Section 4.1;

(c) by written notice to Sponsor from any Investor (other than Sponsor Investor) if there is any breach of any representation, warranty, covenant or agreement on the part of any Sponsor Party set forth in this Participation Agreement, such that the conditions specified in Sections 2.2(c) or 2.2(i) would not be satisfied at the Document Closing (a “Terminating Sponsor Breach”), except that, if such Terminating Sponsor Breach is curable by Sponsor through the exercise of its Commercially Reasonable Efforts, then, for a period of up to twenty (20) days following written notice of such breach from any Investor to Sponsor, but only as long as Sponsor continues to use its Commercially Reasonable Efforts to cure such breach (the “Sponsor Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Sponsor Breach is not cured within the Sponsor Cure Period;

(d) by written notice to the Investors from Sponsor if there is any breach of any representation, warranty, covenant or agreement on the part of any Investor (other than Sponsor Investor) set forth in this Participation Agreement, such that the conditions specified in Sections 2.4(b) or 2.4(e) would not be satisfied at the Document Closing (a “Terminating Investor Breach”), except that, if such Terminating Investor Breach is curable by the Investor (other than Sponsor Investor) in breach through the exercise of its Commercially Reasonable Efforts, then, for a period of up to twenty (20) days following written notice of such breach from Sponsor to such breaching Investor, but only as long as such Investor continues to use its Commercially Reasonable Efforts to cure such Terminating Investor Breach (the “Investor Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Investor Breach is not cured within the Investor Cure Period. Immediately following any such termination pursuant to this Section 5.1(d), each remaining Investor shall reasonably cooperate to identify a replacement investor or, if a replacement investor cannot be identified prior to the Outside Date, each remaining Investor shall have the right, but not the obligation, to undertake the obligations of the Investor in breach hereunder and under the other Equity Documents and to acquire the Equity Interests of Master Holdco that would have been issued to the Investor in breach on a pro rata basis based on relative Ownership Percentages (as defined in the Master Holdco LLC Agreement) of each non-defaulting Investors (assuming the Master Holdco LLC Agreement had been executed) in accordance with the terms of this Participation Agreement;

(e) pursuant to the Equity Termination Agreement; or

(f) by the written consent of all Parties.

5.2 Procedure and Effect of Termination.

(a) Procedure. The Party desiring to terminate this Participation Agreement pursuant to Section 5.1 shall give written notice of such termination to the other Parties in accordance with Section 7.6, specifying the provision hereof pursuant to which such termination is effected.

(b) Effect of Termination. If this Participation Agreement is terminated by Sponsor, by any Investor (other than Sponsor Investor), or both pursuant to Section 5.1, this Participation Agreement shall thereupon become void and of no effect with no liability on the part of any Party, except that (i) the agreements contained in Section 4.3, this Section 5.2(b), Article 6 and Article 7 shall survive the termination and (ii) subject to Article 6, no such termination shall relieve any Party of any liability or damages resulting from any breach by that Party of this Participation Agreement.

ARTICLE 6

INDEMNIFICATION

6.1 General. To the fullest extent permitted by applicable Law, each Party (an “Indemnitor”), shall defend, indemnify and hold harmless each other Party and its Affiliates, and their respective directors, officers, partners, managers, members, shareholders, employees,

consultants, agents, other Representatives, advisors, successors and assigns (each, an “Indemnified Party”) from and against any Loss suffered or incurred by any Indemnified Party to the extent arising out of, or resulting from (i) the inaccuracy of any representation or warranty of the Indemnitor to an Indemnified Party contained in this Participation Agreement, or in any certificate delivered in connection herewith, or (ii) the breach or default by the Indemnitor of any covenant or agreement of such Indemnitor for the benefit of an Indemnified Party contained in this Participation Agreement. For purposes of this Article 6, (a) Sponsor and Sponsor Investor shall be considered a single Party and (b) any Loss shall be calculated without giving regard to any materiality or Material Adverse Effect qualification set forth in any such representation, warranty, covenant or agreement.

6.2 Limitations on Indemnification. Notwithstanding any other provision of this Participation Agreement, except for any claims for indemnification arising out of or related to willful misconduct or fraud (which are not subject to any of the following limitations):

(a) Time Period for Claims. No Indemnified Party shall be entitled to make any claim for indemnification for the inaccuracy of any representation or warranty unless such claim shall have been made in writing no later than fifteen (15) months after the Effective Date, except that (i) a claim for the inaccuracy of a Fundamental Representation or any representation relating to Tax matters (including the representations made in Section 3.2(k)), may be made at any time until thirty (30) days following the expiration of the applicable statute of limitations relevant to such representation, (ii) a claim regarding any representation relating to environmental matters (including the representations made in Section 3.2(n)) may be made up to three (3) years after the Effective Date and (iii) a claim regarding any representation relating to the Cash Grant (including the representations made in Section 3.2(ii)) may be made at any time until thirty (30) days following the earlier of (A) the receipt of the Cash Grant by the Project Entities, or (B) final written confirmation from the U.S. Department of Treasury of the full approved amount of the Cash Grant.

(b) De Minimis Amounts. No Party shall be entitled to make any indemnity claim under Section 6.1(i) above with respect to the inaccuracy of any representation or warranty unless and until such claim (or series of related claims by such Party and any related Company Group Indemnified Member) is greater than [*], provided that this Section 6.2(b) shall not apply to the inaccuracy of any Fundamental Representation or any representation relating to Tax matters.

(c) Indemnity Threshold Amount. An Indemnified Party shall not be entitled to make any claim for indemnification under Section 6.1(i) above with respect to the inaccuracy of any representation or warranty unless and until the aggregate amount of all such claims made in good faith for indemnification by such Indemnified Party and all other Persons that are such Indemnified Party’s Affiliates, and each of their respective directors, officers, partners, managers, members, shareholders, employees, consultants, agents, other Representatives, advisors, successors and assigns (collectively, the “Company Group Indemnified Members”) exceeds an amount equal to the Indemnity Threshold Amount for Indemnified Party, but then such Indemnified Party shall be entitled to make a claim for indemnification for all claims with respect to the inaccuracy of all such representations or warranties for the amount of all such claims (without any deduction of the Indemnity Threshold

*	Confidential Treatment Requested

Amount). Notwithstanding the foregoing, an Indemnified Party may make an indemnity claim solely with respect to the inaccuracy of any Fundamental Representation or any representation relating to Tax matters or the Cash Grant irrespective of whether the claim or claims are less than, equal to or greater than the respective Indemnity Threshold Amount.

(d) Indemnity Maximum Amount. No Indemnitor shall be subject to any indemnity claim under Section 6.1(i) above with respect to the inaccuracy of any representation or warranty to the extent that the amount of such claim, taken together with all other claims made in good faith against such Indemnitor by an Indemnified Party and all other Company Group Indemnified Members associated with such Indemnified Party, exceed an amount equal to the Indemnity Maximum Amount for such Indemnified Party. Notwithstanding the foregoing, an Indemnified Party may make an indemnity claim solely with respect to the inaccuracy of any Fundamental Representation or any representation relating to Tax matters or the Cash Grant irrespective of whether the claim or claims are less than, equal to or greater than the respective Indemnity Maximum Amount.

(e) Cash Grant Loss.

(i) To the extent that there is a Cash Grant Loss as the result of a breach of a representation, warranty or covenant of the Sponsor, the Sponsor Investor, the NRG Investor or the Google Investor under this Participation Agreement, then the Sponsor or Investor to which such breach is attributable shall, on an individual, and not joint and several basis, pay to the U.S. Department of Treasury, on behalf of the Project Company, an amount equal to the Cash Grant Loss resulting from such breach.

(ii) Any indemnification required under this Section 6.2(e) shall not be subject to any of the provisions or limits set forth in Sections 6.2(a), 6.2(c) or 6.2(d).

6.3 Mitigation and Limitation of Claims.

(a) Reasonable Steps to Mitigate. Each Indemnified Party shall take all commercially reasonable steps to mitigate all Losses relating to a claim, including availing itself of any defenses, limitations, rights of contribution, claims against third Persons and other rights at Law or equity, and shall provide such evidence and documentation of the nature and extent of the claim as may be reasonably requested by the Indemnitor.

(b) Subsequent Recoveries. If the amount of any Indemnified Party’s Loss, at any time subsequent to an Indemnitor’s making a payment under Section 6.1, is reduced by recovery, settlement or otherwise under or pursuant to any applicable insurance coverage or pursuant to any applicable claim, recovery, settlement or payment by or against any other Person, without duplication of any amount already reducing such Loss pursuant to clause (b) of the definition of “Loss” (collectively, “Recoveries”), the amount of such Recoveries (but not to exceed the amount of such Recoveries) net of the costs and expenses directly resulting from obtaining such Recoveries, including increased premiums shall be repaid by such Indemnified Party to such Indemnitor within fifteen (15) days after receipt thereof by such Indemnified Party, up to the aggregate amount of (i) the payments made by such Indemnitor to such Indemnified

Party plus (ii) any costs or expenses incurred by such Indemnitor in connection with its indemnification obligations with respect thereto.

(c) No Set-Off. No Indemnitor shall have any right to set-off any Loss for which it has an obligation to indemnify any Indemnified Party under this Article 6 against any payments to be made pursuant to this Participation Agreement or any other agreement.

6.4 Exclusive Remedy. The indemnification provisions of this Article 6 shall be the sole and exclusive remedy of each Party (including Indemnified Parties) for the inaccuracy of any Party’s representations and warranties, or the breach of any Party’s covenants, contained in this Participation Agreement. In furtherance of the foregoing, each Party hereby waives, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action it or any of its Affiliates may have against another Party hereunder or under applicable Law with respect to the claims described in the preceding sentence.

6.5 Procedure for Indemnification with Respect to Third-Party Claims.

(a) Notice of Claim. If any legal proceeding is instituted or any claim or demand is asserted by any third party in respect of which indemnification may be sought by any Indemnified Party under this Article 6, such Indemnified Party shall, within twenty (20) days of the actual receipt thereof by a responsible officer, cause written notice of such legal proceedings or the assertion of such claim or demand to be forwarded to the Indemnitor. Such notice shall specify the nature of such legal proceedings, claim or demand and the amount or the estimated amount thereof to the extent then feasible, which estimate shall not be binding upon the Indemnified Party, in its effort to collect the final amount arising out of such legal proceedings, claim or demand; provided, that the failure of an Indemnified Party to give timely notice shall not affect its rights to indemnification under this Article 6 except to the extent the Indemnitor has been actually damaged by such failure.

(b) Conduct of Claim. If any claim of the kind described in Section 6.5(a) above is made by a third party against an Indemnified Party, the Indemnitor shall have the right, at its option and expense, to be represented by the counsel of its choice and to participate in, or take control of, the defense, negotiation and/or settlement of any proceeding, claim or demand that relates to any amounts indemnifiable or potentially indemnifiable under this Article 6; provided, that the Indemnified Party may participate in, and take control of, any such proceeding with counsel of its choice, at the expense of the Indemnitor, if (i) the Indemnitor does not pursue with reasonable diligence such defense, negotiation or settlement, or (ii) in the reasonable opinion of such Indemnified Party and its counsel, such action, suit or proceeding involves the potential imposition of criminal liability upon such Indemnified Party or a conflict of interest between such Indemnified Party and the Indemnitor; provided, further, that the Indemnitor may take control of such defense, negotiation and/or settlement only if (x) such claim seeks only money damages in an amount no greater than, taken together with all other claims made in good faith against such Indemnitor by an Indemnified Party and all other Company Group Indemnified Members associated with such Indemnified Party, the Indemnity Maximum Amount for such Indemnified Party, and (y) the Indemnitor accepts liability to the Indemnified Party for such claim. The Indemnified Party shall have a right to notice of any settlement, and the Indemnitor shall not execute or otherwise agree to any consent decree that (1) provides for other than

monetary payment without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld, or (2) does not include as an unconditional term thereof the giving of a release from all liability with respect to such claim by each claimant or plaintiff to each Indemnified Party that is or may be subject to the third-party claim, without the Indemnified Party’s prior written consent. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any claim made by a third party; provided that in such event it shall waive any right to indemnity therefor from the Indemnitor unless the Indemnitor has not pursued with reasonable diligence the defense, negotiation or settlement of such claim. If the Indemnitor elects not to defend or settle such proceeding, claim or demand or is prohibited from doing so because such claim seeks damages other than only money damages or damages in an amount greater than, taken together with all other claims made in good faith against such Indemnitor by an Indemnified Party and all other Company Group Indemnified Members associated with such Indemnified Party, the Indemnity Maximum Amount for such Indemnified Party, and the Indemnified Party defends, settles or otherwise deals with any such proceeding, claim or demand directly, the Indemnified Party shall provide fifteen (15) days advance written notice of any settlement to the Indemnitor and shall act reasonably and in accordance with the Indemnified Party’s good faith business judgment. The Indemnitor and the Indemnified Party shall cooperate fully with each other in connection with the defense, negotiation or settlement of any legal proceeding, claim or demand described in this Section 6.5, including keeping each other fully informed regarding material developments relating to the claim.

(c) Payment of Claim. After final judgment or award has been rendered by a court, arbitration board or administrative agency of competent jurisdiction and the expiration of the time in which to appeal therefrom, or a settlement has been consummated, or the Indemnified Party and the Indemnitor have arrived at a mutually binding agreement with respect to each separate matter indemnified by the Indemnitor, the Indemnified Party shall forward to the Indemnitor notice of any sums due and owing by the Indemnitor with respect to such matter, and the Indemnitor shall pay all of the sums so owing to the Indemnified Party by cash in immediately available funds within twenty (20) days after the date of such notice.

(d) Access to Information. If any claim is made by a third party against an Indemnified Party, the Indemnified Party shall use Commercially Reasonable Efforts to make available to the Indemnitor those partners, members, officers and employees whose assistance, testimony or presence is necessary to assist the Indemnitor in evaluating and defending such claims; provided, that any such access shall be conducted in such a manner as not to interfere unreasonably with the operations of the business of the Indemnified Party, and any out of pocket expenses incurred by any Indemnified Party in connection therewith shall be included in such Indemnified Party’s Losses.

(e) Subrogation. Upon payment of a Loss by an Indemnitor to an Indemnified Party pursuant to this Article 6, such Indemnitor, without any further action, shall be subrogated to any and all claims that such Indemnified Party may have against third parties relating to such Loss, and such Indemnified Party shall use Commercially Reasonable Efforts to cooperate with such Indemnitor, at the expense of such Indemnitor, in order to enable such Indemnitor to pursue such claims; provided, however, that until the Indemnified Party recovers full payment of its Loss, any and all claims of the Indemnitor against any such third party on

account of said payment are hereby made expressly subordinated and subject in right of payment to the Indemnified Party’s rights against such third party.

6.6 Tax Consequences.

(a) After-Tax Payments. For tax reporting purposes, to the maximum extent permitted by the Code, each Party shall treat all amounts paid under any of the provisions of this Article 6 as an adjustment to the purchase price for interest in Master Holdco transferred pursuant to this Participation Agreement (or otherwise as a non-taxable reimbursement, contribution or return of capital under the Master Holdco LLC Agreement, as the case may be). To the extent any such indemnification payment is includable as income of the Indemnified Party, the amount of the payment shall be increased by the amount of any income tax (using the assumed rates described below) required to be paid by the Indemnified Party or its Affiliates on the receipt or accrual of the indemnification payment, including, for this purpose, the amount of any such Tax required to be paid by the Indemnified Party on the receipt or accrual of the additional amount required to be added to such payment pursuant to this Section 6.6, using an assumed tax rate equal to the highest marginal federal income tax rate applicable to corporations generally (currently 35 percent). Any payment made under this Article 6 shall be reduced by the present value (as determined on the basis of a discount rate percent per annum equal to the Treasury Yield and the same assumptions about taxability and tax rates) of any income tax benefit to be realized by the Indemnified Party or its Affiliates by reason of the facts and circumstances giving rise to such indemnification.

(b) Taxes Not Consequential Damages. For the avoidance of doubt, the loss of Tax benefits or Cash Grants shall not be considered as punitive, consequential or exemplary damages.

6.7 Credit Support for Indemnification Claims against Sponsor. If any Investor (other than Sponsor Investor) makes an indemnification claim against Sponsor or Sponsor Investor under this Article 6, such Investor shall provide notification to the escrow agent under the Sponsor Warranty Support Agreement of the existence of such claim; provided, that the failure of such Investor to give timely notice shall not affect its rights to indemnification under this Article 6. As provided in the Sponsor Warranty Support Agreement, escrowed amounts may not be released to Sponsor or any of its Affiliates under the Sponsor Warranty Support Agreement if there is any unpaid or pending indemnity claim against Sponsor or Sponsor Investor under this Article 6 and amounts that would otherwise be released to Sponsor or any of its Affiliates under the Sponsor Warranty Support Agreement shall either (a) be paid to each Investor (other than Sponsor Investor) in satisfaction of any unpaid indemnity claim under this Article 6 that has been finally determined to be owing by Sponsor or Sponsor Investor to such Investor, or (b) if an indemnity claim under this Article 6 is pending, to the extent required to pay such pending indemnity claim if determined in favor of any Investor (other than Sponsor Investor), be transferred to a separate escrow account governed by an escrow agreement attached (in form) to the Sponsor Warranty Support Agreement to support such pending indemnity claim until released from such separate escrow account pursuant to such escrow agreement.

ARTICLE 7

GENERAL PROVISIONS

7.1 Exhibits and Schedules. All Exhibits and Schedules are incorporated herein by reference.

7.2 Amendment, Modification and Waiver. Except to the extent herein provided for, no amendment or modification to this Participation Agreement shall be enforceable unless reduced to writing and executed by all Parties. Any waiver shall be valid only if set forth in an instrument in writing signed by the Party against whom such waiver is to be effective.

7.3 Severability. If any term or other provision of this Participation Agreement is invalid, illegal, or incapable of being enforced by any Governmental Rule, or public policy, all other conditions and provisions of this Participation Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

7.4 Expenses. Sponsor shall be responsible for paying all of its expenses and the expenses of any Sponsor Party in connection with the transactions contemplated by this Participation Agreement. Each Investor (other than Sponsor Investor) shall be responsible for paying all of its respective expenses in connection with the transactions contemplated by this Participation Agreement.

7.5 Parties in Interest. This Participation Agreement shall be binding upon and inure solely to the benefit of each Party and its successors and assigns, and nothing in this Participation Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Participation Agreement.

7.6 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, by a nationally recognized overnight courier, by facsimile, or mailed by registered or certified mail (return receipt requested) to all Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):

(a) If to Sponsor, to:

BrightSource Energy, Inc.

▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇

Attn: Chief Financial Officer

Telephone: ▇▇▇-▇▇▇-▇▇▇▇

Fax: ▇▇▇-▇▇▇-▇▇▇▇

With a copy to (which copy shall not constitute notice):

BrightSource Energy, Inc.

▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇

Attn: General Counsel

Telephone: ▇▇▇-▇▇▇-▇▇▇▇

Fax: ▇▇▇-▇▇▇-▇▇▇▇

(b) If to Sponsor Investor, to:

Sponsor Investor

c/o BrightSource Energy, Inc.

▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇

Attn: Chief Financial Officer

Telephone: ▇▇▇-▇▇▇-▇▇▇▇

Fax: ▇▇▇-▇▇▇-▇▇▇▇

With a copy to (which copy shall not constitute notice):

Sponsor Investor

c/o BrightSource Energy, Inc.

▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇

Attn: General Counsel

Telephone: ▇▇▇-▇▇▇-▇▇▇▇

Fax: ▇▇▇-▇▇▇-▇▇▇▇

NRG Solar Ivanpah LLC

▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇

▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

[*]

With a copy to (which copy shall not constitute notice):

NRG Energy, Inc.

▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

[*]

(d) If to Google Investor, to:

Danke ▇▇▇▇▇▇ Project LLC

c/o Google Inc.

▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇

*	Confidential Treatment Requested

▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇

[*]

With a copy to (which copy shall not constitute notice):

▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP

▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇

[*]

All notices and other communications given in accordance herewith shall be deemed given (i) on the date of delivery, if hand delivered, (ii) on the date of receipt, if faxed (provided a hard copy of such transmission is dispatched by first class mail within 48 hours), (iii) if mailed by registered or certified mail, return receipt requested, the date of the return receipt and (iv) one Business Day after the date of sending, if sent by a nationally recognized overnight courier; provided, that a notice given in accordance with this Section 7.6 but received on any day other than a Business Day or after business hours in the place of receipt, will be deemed given on the next Business Day in that place.

7.7 Counterparts. This Participation Agreement may be executed and delivered (including by electronic transmission) in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by facsimile or electronic mail shall be deemed to be their original signatures for all purposes.

7.8 Entire Agreement. This Participation Agreement (together with the other Transaction Documents) constitutes the entire agreement of the Parties and supersedes all prior agreements, letters of intent and understandings, both written and oral, among the Parties with respect to the subject matters expressly addressed herein.

7.9 Governing Law; Choice of Forum; Waiver of Jury Trial. THIS PARTICIPATION AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW EXCEPT FOR SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW. TO THE EXTENT ENFORCEABLE AT SUCH TIME, EACH PARTY WAIVES ITS RESPECTIVE RIGHT TO ANY JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER OR IN CONNECTION WITH THIS PARTICIPATION AGREEMENT. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE NON EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW

*	Confidential Treatment Requested

YORK WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS PARTICIPATION AGREEMENT. EACH PARTY WAIVES ANY OBJECTION IT MAY HAVE NOW OR HEREAFTER TO THE VENUE OF ANY SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT AND ANY CLAIM THAT ANY OF THE FOREGOING HAVE BEEN BROUGHT IN AN INCONVENIENT FORUM.

7.10 Public Announcements. The Parties may make public statements or issue press releases (i) pursuant to the Securities Act of 1933 or the Securities Exchange Act of 1934, (ii) pursuant to any listing agreement with any national securities exchange or (iii) as otherwise required by Governmental Rule. Except as set forth in the immediately preceding sentence, no Party shall (either directly or indirectly), and no Party shall permit any of its Affiliates to, issue or make any press release or public announcement regarding the Project and the transactions contemplated by the Transaction Documents without the prior approval of the other Parties, such approval not to be unreasonably withheld or delayed; provided, however, that any Party may withhold its consent to the release of any press release or other public statement that identifies such Party or any of its Affiliates by name in its sole discretion.

7.11 Assignment. This Participation Agreement may not be assigned by any Party without the consent of each other Party. Any attempted assignment of this Participation Agreement other than in strict accordance with this Section 7.11 shall be null and void and of no force or effect.

7.12 Relationship of Parties. This Participation Agreement does not constitute a joint venture, association or partnership among the Parties. No express or implied term, provision or condition of this Participation Agreement shall create, or shall be deemed to create, an agency, joint venture, partnership or any fiduciary relationship among the Parties.

[Remainder of page intentionally left blank. Signature pages to follow.]

IN WITNESS WHEREOF, each Party hereto has caused this Ivanpah III Equity Participation Agreement to be signed on its behalf as of the Effective Date.


BrightSource Energy, Inc.,
a Delaware corporation

By:		/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
		Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
		Title: President and CEO

[Signature Page to Ivanpah III Equity Participation Agreement]


BrightSource Ivanpah Holdings, LLC,
a Delaware limited liability company

By:		/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
		Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
		Title: Authorized Signatory

[Signature Page to Ivanpah III Equity Participation Agreement]


NRG Solar Ivanpah LLC,
a Delaware limited liability company

By:		/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
		Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
		Title: President

[Signature Page to Ivanpah III Equity Participation Agreement]


Danke ▇▇▇▇▇▇ Project LLC,
a Delaware limited liability company

By: Google Inc, a Delaware corporation, its Managing Member

By:		/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
		Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
		Title: VP Business Operations

[Signature Page to Ivanpah III Equity Participation Agreement]

Exhibit A

Form of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP Opinion

[See attached.]

April , 2011

To the Parties Listed on Attached Schedule I

Re:

Equity Documents

Ladies and Gentlemen:

We have acted as special counsel to BrightSource Ivanpah Holdings, LLC, a Delaware limited liability company (“Sponsor Member”) and BrightSource Energy, Inc., a Delaware corporation (“Sponsor”, and together with Sponsor Member, the “Opinion Parties”), in connection with the transactions contemplated by (a) that certain Ivanpah III Equity Participation Agreement, by and among Sponsor, Sponsor Member, Danke ▇▇▇▇▇▇ Project LLC, a Delaware limited liability company (“Google Investor”), and NRG Solar Ivanpah LLC, a Delaware limited liability company (“NRG Investor”), dated as of the date hereof (the “Equity Participation Agreement”) (b) that certain Ivanpah III Equity Funding Agreement, by and among Sponsor, Sponsor Member, NRG Investor, Google Investor, Solar Partners VIII, LLC, U.S. Department of Energy (“DOE”) and PNC Bank, National Association, doing business as Midland Loan Services, a division of PNC Bank, National Association (“PNC”), dated as of the date hereof (the “Equity Funding Agreement”), (c) that certain Amended and Restated Limited Liability Company Agreement of Ivanpah Master Holdings, LLC, by and among Sponsor Member, NRG Investor and Google Investor, dated as of the date hereof (the “Master Holdco LLC Agreement”), (d) that certain Equity Contribution Guaranty (ITC Compensation), by and among Sponsor, Solar Partners VIII, LLC and PNC, dated as of the date hereof (the “Guaranty (ITC Compensation)”), (e) that certain Equity Contribution Guaranty (Recapture Indemnification), by and among Sponsor, Solar Partners VIII, LLC and PNC, dated as of the date hereof (the “Guaranty (Recapture Indemnification)”, and (f) that certain Blocked Account Control Agreement, by and among Sponsor Member, PNC Bank, National Association, in its capacity as securities intermediary, and PNC, as collateral agent (the “Blocked Account Control Agreement”, and together with the Equity Funding Agreement, the Equity Participation Agreement, the Master Holdco LLC Agreement, the Guaranty (ITC Compensation) and the Guaranty (Recapture Indemnification), individually, an “Equity Document,” and, collectively, the “Equity Documents”). This opinion is being delivered to you pursuant to Section 2.2(s)(i) of the Equity Participation Agreement.

Terms used in paragraph 5 below and any qualifications and assumptions applicable to the opinions expressed in such paragraph that are defined in the New York Uniform Commercial Code (the “NYUCC”) shall have the meanings assigned to them in the NYUCC. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings assigned to them in the Equity Participation Agreement, either as defined therein or by reference to

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another document.

Materials Examined

In connection with this opinion, we have examined executed copies of each of the Equity Documents. We have also examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such records, agreements, instruments and certificates (including certificates of public officials and of officers of the parties) and such other documents as we have deemed relevant for the opinions set forth herein. In rendering the opinions expressed below, we have examined only executed counterparts or copies of the Equity Documents that were provided to us. We have also made such other investigations of fact and law as we have considered necessary or appropriate for the purposes of the opinions set forth herein. As to factual matters, we have relied without investigation on the representations and warranties set forth in the Equity Documents.

In addition, we have reviewed (a) the Factual Certificates of Sponsor Member and Sponsor, respectively, attached to this opinion as Schedule II (each, a “Factual Certificate” and, collectively, the “Factual Certificates”), and (b) copies of each of the contracts listed on Schedule III (each, a “Material Financing Contract” and, collectively, the “Material Financing Contracts”) made available to us by Sponsor.

Our opinion in paragraph 4 below relating to the Material Financing Contracts is based on the assumption that, in each case pursuant to the Escrow Agreement, by and among (i) Solar Partners I, LLC, (ii) Solar Partners II, LLC, (iii) Solar Partners VIII, LLC, (iv) Sponsor Member, (v) Sponsor, (vi) NRG Investor, (vii) Google Investor, (viii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, (ix) Hercules Technology Growth Capital, Inc., (x) Hercules Technology II, L.P., (xi) PNC Bank National Association, doing business as Midland Loan Services, a division of PNC Bank, National Association, (xii) ▇▇▇▇▇▇▇ Title Guaranty Company, and (xiii) Chicago Title Insurance Company, dated as of the date hereof (the “Equity Escrow Agreement”), (a) DOE has funded the amounts requested in the initial FFB Advance Requests (as referred to and provided in Section 3.b of the Equity Escrow Agreement), (b) funds have been released from escrow pursuant to Section 4 of the Equity Escrow Agreement, (c) a portion of the funds so released have been applied to repay in full the loan to Sponsor under the Credit Facility Agreement (as defined in Schedule III of this opinion) pursuant to Section 4.a of the Equity Escrow Agreement, and (d) the UCC Termination Statements/UCC Amendments (as defined in the Equity Escrow) have been filed pursuant to Section 4.b of the Equity Escrow Agreement.

Our opinion in paragraph 5 below is based on the following assumptions: (i) the bank’s

April , 2011

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jurisdiction of any applicable securities intermediary is the State of New York; (ii) the securities intermediary is not a party to any agreement that would limit, condition or conflict with any provision of the Blocked Account Control Agreement with respect to the “control” (within the meaning of Section 8-106(d) or Section 9-104 of the NYUCC) of the Blocked Account; and (iii) Sponsor Member does not control, is not controlled by and is not under common control with the securities intermediary.

Opinions

Based upon such examination, and having regard for legal considerations we deem relevant, we are of the opinion, subject to the qualifications and assumptions set forth below, that:

1. Enforceability. Each of the Equity Participation Agreement, Equity Funding Agreement, Guaranty (ITC Compensation), Guaranty (Recapture Indemnification) and Blocked Account Control Agreement constitutes the valid and binding obligation of the Opinion Parties, enforceable against the Opinion Parties in accordance with its terms.

2. No Violation of Laws or Organizational Documents. The execution, delivery and performance by each Opinion Party of the Equity Documents to which it is a party do not and will not violate (a) the provisions of (i) any federal law of the United States of America, or any rule or regulation thereunder, (ii) any law of the State of New York, or any rule or regulation thereunder, (iii) the Delaware General Corporation Law (the “DGCL”), or (iv) the Delaware Limited Liability Company Act (the “DLLCA”), (b) such Opinion Party’s certificate of incorporation, certificate of formation, bylaws or operating agreement, as applicable, or (c) based solely on our review of the Factual Certificates, any order of any Governmental Authority known to us to be applicable to such Opinion Party.

3. No Further Action. Neither the execution and delivery by each Opinion Party of the Equity Documents to which it is a party, nor the performance by such Opinion Party of its obligations thereunder, requires any consents, approvals or authorizations to be obtained by such Opinion Party from, or any registrations, declarations or filings to be made by such Opinion Party with, any federal, New York or Delaware Governmental Authority under (a) any federal law of the United States of America, or any rule or regulation thereunder, (b) any law of the State of New York, or any rule or regulation thereunder, (c) the DGCL, or (d) the DLLCA, in each case as applicable to such Opinion Party.

4. No Conflict with Material Financing Contracts. The execution and delivery by

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each Opinion Party of the Equity Documents to which it is a party does not, and the performance by it of its obligations thereunder will not, violate, breach or result in a default under any of the Material Financing Contracts.

5. Perfection of Security Interest in the Blocked Account. The security interest created by the Equity Funding Agreement in such of Sponsor Member’s rights in the Blocked Account (as defined in the Blocked Account Control Agreement) and the financial assets held therein or credited thereto and the proceeds thereof as consists of securities accounts is perfected by the execution and delivery of the Blocked Account Control Agreement.

Certain Assumptions and Limitations

In rendering the opinions stated above, we have, with your consent, assumed (i) the due organization, valid existence and good standing of each party to the Equity Documents (other than the Opinion Parties), (ii) the authority of each party to the Equity Documents to do business in each relevant jurisdiction (other than the Opinion Parties), (iii) the legal capacity and authority of all natural persons executing any documents, (iv) the truth, accuracy and completeness of the information, factual matters, representations and warranties as to matters of fact contained in the records, documents, instruments and certificates we have reviewed, (v) the due authorization, execution and delivery of the Equity Documents by each party thereto (other than each Opinion Party with respect to the Equity Documents to which it is a party), (vi) the power and authority of each party to the Equity Documents to execute and deliver and perform its respective obligations under the Equity Documents (other than each Opinion Party with respect to the Equity Documents to which it is a party), (vii) except with respect to each Opinion Party to the extent set forth in paragraph 2 above, that the execution and delivery of the Equity Documents will not breach, conflict with or constitute a violation of, the laws or governmental rules or regulations of any jurisdiction, or of any order, writ, judgment, injunction, decree, determination or award of any Governmental Authority, (viii) that the execution and delivery of the Equity Documents does not require the consent or approval of any person or entity (other than, with respect to each Opinion Party to the extent set forth in paragraph 3 above, any Governmental Authority of the State of New York, the State of Delaware or of the United States of America) that has not already been obtained, (ix) the absence of any evidence extrinsic to the provisions of each Equity Document between the parties to such Equity Document that such parties intended a meaning contrary to that expressed by those provisions, (x) the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies, (xi) the genuineness of all signatures, and (xii) except with respect to the Opinion Parties under the Equity Participation Agreement, Equity Funding Agreement, Guaranty (ITC Compensation), Guaranty (Recapture Indemnification) and Blocked Account Control Agreement

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that each Equity Document constitutes the legal, valid and binding obligation of the parties thereto, and is enforceable against such parties in accordance with the respective terms thereof. With respect to the matters described in clauses (i), (ii), (iii), (iv), (v) and (vi) of this paragraph as they relate to the Opinion Parties, we are relying on the in-house legal opinion of ▇▇▇▇▇▇ ▇. Judge, General Counsel of Sponsor.

Our opinion in paragraph 1 above that the Equity Participation Agreement, Equity Funding Agreement, Guaranty (ITC Compensation), Guaranty (Recapture Indemnification) and Blocked Account Control Agreement are valid, binding or enforceable in accordance with their terms is qualified as to: (a) the effect of any bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium, receivership, assignment for the benefit of creditors or other laws relating to or affecting the rights of creditors generally; (b) limitations that may be imposed by statutory law and equitable principles on indemnification and contribution rights and provisions purporting to exempt a party from liability for its own conduct; (c) the unenforceability under certain circumstances of provisions imposing liquidated damages, penalties, forfeiture, late payment charges, or an increase in interest rate upon delinquency in payment or the occurrence of any event of default; and (d) general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether such enforceability is considered in a proceeding in equity or at law.

Insofar as our opinion in paragraph 1 above that the Equity Participation Agreement, Equity Funding Agreement, Guaranty (ITC Compensation), Guaranty (Recapture Indemnification) and Blocked Account Control Agreement are legal, valid, binding and enforceable pertains to the parties’ agreement that the law of the State of New York shall be the governing law of such document, our opinion is based solely on Section 5-1401 of the New York General Obligations Law. We express no opinion as to the validity of such statute under the Constitution of the United States of America, particularly in circumstances where the Equity Participation Agreement, Equity Funding Agreement, Guaranty (ITC Compensation), Guaranty (Recapture Indemnification) and Blocked Account Control Agreement bear no reasonable relation to the State of New York.

We are not opining in paragraphs 1 through 5 on any law other than (i) the laws of the State of New York, as applied by courts located in New York, without regard to choice of law, (ii) to the extent set forth in paragraphs 2(a)(iii), 2(a)(iv), 2(b), 3(c) and 3(d) above, the DGCL and the DLLCA, (iii) to the extent set forth in paragraphs 2(a)(i), and 3(a) the federal laws of the United States of America, and (iv) to the extent set forth in paragraph 5, the NYUCC. In addition, with respect to the laws, rules and regulations of the State of New York and the United

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States of America, our opinions herein relate only to those laws, rules and regulations of the State of New York and the United States of America which, in our experience, are normally applicable to transactions of the type provided for in the Equity Documents or the Material Financing Contracts (as applicable) without having made any investigation concerning any other law, rule or regulation; provided, however, that no opinion is expressed with respect to any law, statute, rule or regulation relating to banks, fiduciaries or financial institutions, taxation, antitrust, the environment, environmental conservation, energy, public utilities, health and safety, sanitation, land use, zoning, construction or related transportation matters or any federal or state securities laws, or the necessity of obtaining the approval of, or making any filing with, any governmental authority relating to any of the foregoing items contained in this proviso. We are not licensed to practice law in the State of Delaware, and as a result, our opinions herein as to such law are based solely on our review of a standard compilation of the DCGL and the DLLCA, in each case without regard to judicial or administrative interpretations of any Delaware law.

With respect to our opinion in paragraph 4, we inform you that we have not reviewed the covenants in the Material Financing Contracts that contain financial ratios and other similar financial restrictions, and no opinion is provided with respect thereto.

For purposes of the opinion set forth in paragraph 5 above, we have assumed that (i) the third-party institution where the Blocked Account is maintained is a “bank” as defined in Section 9-102(a)(8) of the NYUCC and is acting in such capacity with respect to the Blocked Account and (ii) the Blocked Account is a “securities account” as defined in Section 8-501(a) of the NYUCC.

We express no opinion herein as to (a) any collateral in which the Sponsor Member does not have rights or the power to transfer rights, (b) any security interest for which value has not been given to the debtor, (c) any consumer transaction, or (d) the creation or priority of any security interest. Any opinion expressed herein as to any security interest in proceeds is subject to the provisions of Section 9-315 of the NYUCC and Section 9-315 of the DUCC.

The opinions set forth in paragraph 5 above are limited to Article 9 of the NYUCC, and thus such opinions cover only security interests, collateral, transactions and perfection methods to the extent governed by Article 9 of the NYUCC. We express no opinion as to the effect of perfection or non-perfection or the priority of any security interest. Without limiting the generality of the foregoing, we note that all or part of Article 9 of the NYUCC may not apply to a federally regulated entity or any of its affiliates and that, as a result, the rights, remedies, and priorities afforded by Article 9 of the NYUCC (including the rights, remedies, and priorities afforded to a secured party with a perfected security interest) may not be enforceable against a

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federally regulated entity or any of its affiliates as debtor, as secured party, or otherwise. E.g., ▇▇▇▇▇▇ v. WFS Financial Inc., 580 F. Supp. 2d 614 (N.D. Ohio 2008) (portions of Article 9 of the Ohio UCC were preempted by regulations issued by the Office of Thrift Supervision and could not be enforced against a creditor that was a subsidiary of a federal savings association).

Use of Opinion

This opinion letter is solely for your benefit in connection with the transaction covered in the first paragraph of this opinion letter and may not be relied upon or used by, circulated, quoted or referred to, nor may copies hereof be delivered to, any other person without our prior written approval, except that copies of this opinion letter may be furnished to independent auditors and legal counsel in connection with their providing advice regarding such transaction and to appropriate regulatory authorities or pursuant to an order or legal process of any relevant governmental authority and to your permitted successors, assigns and participants, and prospective successors, assigns and participants. We disclaim any obligation to update this opinion letter for events occurring or coming to our attention after the date hereof. At your request, we hereby consent to reliance hereon by your successors, permitted assigns or participants pursuant to the Equity Documents, on the condition and understanding that (i) this letter speaks only as of the date hereof, (ii) we have no responsibility or obligation to update this letter, to consider its applicability or correctness to other than its addressees, or to take into account changes in law, facts or any other developments of which we may later become aware, and (iii) any such reliance by a successor, assign or participant must be actual and reasonable under the circumstances existing at the time of assignment, including any changes in law, facts or any other developments known to or reasonably knowable by the successor, assign or participant at such time.

Very truly yours,

▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP

SCHEDULE I

NRG Investor

Google Investor

DOE

PNC Bank, National Association, doing business as Midland Loan Services, a division of PNC Bank, National Association, in its capacity as Collateral Agent

SCHEDULE II

FACTUAL CERTIFICATES

SCHEDULE II

MATERIAL FINANCING DOCUMENTS

Credit and Guaranty Agreement dated as of October 4, 2010 among BrightSource Energy, Inc., certain wholly-owned domestic subsidiaries of BrightSource Energy, Inc., as guarantors, various Lenders and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, as Administrative Agent and Collateral Agent (the “Credit Facility Agreement”).

2.	Pledge and Security Agreement dated October 4, 2010 among BrightSource Energy, Inc., each of the Guarantors under the Credit Agreement and ▇▇▇▇▇▇▇ Sachs Bank USA, as Collateral Agent, and associated security or deposit control agreements (the “▇▇▇▇▇▇▇ ▇▇▇▇▇ Pledge Agreement”).

Loan and Guaranty Agreement dated as of December 28, 2010 and by and among BrightSource Energy, Inc., certain wholly-owned Domestic Subsidiaries of BrightSource Energy, Inc., as Guarantors, and HERCULES TECHNOLOGY GROWTH CAPITAL, INC., and HERCULES TECHNOLOGY II, L.P., a Delaware limited partnership (the “Hercules Loan Agreement”).

4.	Pledge and Security Agreement dated December 28, 2010 among BrightSource Energy, Inc., each of the Guarantors under the Hercules Loan Agreement and Hercules Technology Growth Capital, Inc., as Collateral Agent, and associated security or deposit control agreements (the “Hercules Pledge Agreement”).

5.	Development Loan Agreement between Solar Partners II, LLC (as assignee of Solar Partners I, LLC) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BrightSource LLC, dated as of May 16, 2007, as amended by First Amendment dated as of October 30, 2009.

Exhibit B

Form of Sponsor In House Opinion

[See attached.]

April , 2011

TO THE ADDRESSEES LISTED ON SCHEDULE 1

RE:	Equity Documents

Ladies and Gentlemen:

This opinion is being delivered in connection with the transactions contemplated by (a) that certain Ivanpah III Equity Participation Agreement by and among BrightSource Energy, Inc., a Delaware corporation (“Sponsor”), BrightSource Ivanpah Holdings, LLC, a Delaware limited liability company (“Sponsor Member”, and together with Sponsor, the “Opinion Parties”), Danke ▇▇▇▇▇▇ Project LLC, a Delaware limited liability company (“Google Investor”), and NRG Solar Ivanpah LLC, a Delaware limited liability company (“NRG Investor”), dated as of the date hereof (the “Equity Participation Agreement”), (b) that certain Ivanpah III Equity Funding Agreement, by and among Sponsor, Sponsor Member, NRG Investor, Google Investor, Solar Partners VIII, LLC, U.S. Department of Energy (“DOE”) and PNC Bank, National Association, doing business as Midland Loan Services, a division of PNC Bank, National Association (“PNC”), dated as of the date hereof (the “Equity Funding Agreement”), and (c) that certain Amended and Restated Limited Liability Company Agreement of Ivanpah Master Holdings, LLC, by and among Sponsor Member, NRG Investor and Google Investor, dated as of the date hereof (the “Master Holdco LLC Agreement”), (d) that certain Equity Contribution Guaranty (ITC Compensation), by and among Sponsor, Solar Partners VIII, LLC and PNC, dated as of the date hereof (the “Guaranty (ITC Compensation)”), (e) that certain Equity Contribution Guaranty (Recapture Indemnification), by and among Sponsor, Solar Partners VIII, LLC and PNC, dated as of the date hereof (the “Guaranty (Recapture Indemnification)”), and (f) that certain Blocked Account Control Agreement, by and among Sponsor Member, PNC Bank, National Association, in its capacity as securities intermediary, and PNC, as collateral agent (the “Blocked Account Control Agreement”, and together with the Equity Funding Agreement, the Equity Participation Agreement, the Master Holdco LLC Agreement, the Guaranty (ITC Compensation) and the Guaranty (Recapture Indemnification), individually, an “Equity Document,” and, collectively, the “Equity Documents”). This opinion is being delivered to you pursuant to Section 2.2(s)(ii) of the Equity Participation Agreement.

As General Counsel, I have acted as counsel for the Opinion Parties in connection with the execution and delivery of, and the consummation of various transactions contemplated by, the


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Equity Documents. Capitalized terms used herein and not otherwise defined herein shall have the same meanings as are ascribed to them in the Equity Participation Agreement.

In connection with this opinion, I have examined executed copies of the following Equity Documents: (i) the Equity Participation Agreement, (ii) the Equity Funding Agreement, (iii) the Master Holdco LLC Agreement, (iv) the Guaranty (ITC Compensation), (v) the Guaranty (Recapture Indemnification), and (vi) the Blocked Account Control Agreement.

I have examined the Equity Documents and such other corporate and public records and agreements, instruments, certificates and other documents, and have made such investigations of law, as I have deemed necessary or appropriate for the purposes of this opinion.

The opinions expressed hereby are limited to (i) the law of Title 8, Chapter 1 of the Delaware Code (the General Corporation Law), (ii) the Delaware Limited Liability Company Act, and (iii) the laws of the State of California. I am not a member of the Bar of the State of Delaware, and I express no opinion as to the effect on the matters covered by this opinion letter of the laws of the State of Delaware to the extent it varies from the laws of the State of California.

This opinion is based on laws, rules and regulations in effect on the date hereof. Any changes therein may materially adversely affect the conclusions set forth in this opinion, but I disclaim any duty to advise you of any changes therein or to revise or supplement this opinion due to any changes therein.

In rendering this opinion I have assumed, with your permission and without independent verification, (1) the genuineness of all signatures (other than the signatures of the officials of the Opinion Parties), (2) the conformity to the originals of all documents reviewed by me as copies, (3) the authenticity and completeness of all original documents reviewed by me in original or copy form, and (4) the legal competence of each individual executing any document.

Based upon and subject to the foregoing, I am of the opinion that:

Each Opinion Party is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation, and each has the requisite power and authority to execute, deliver and perform its respective obligations under the Equity Documents to which it is a party.

Sponsor is duly qualified to do business as a foreign company and is in good standing in the State of California.

Each of the Equity Documents to which any of the Opinion Parties is a party has been duly authorized by all required company action on behalf of such party and has been duly executed and delivered by such party.

I am furnishing this opinion to you at the express direction of the Opinion Parties. This opinion is for the benefit of, and may be relied upon by you and your successors and permitted assigns and may not be relied upon by any other person or entity without my prior written consent. The matters addressed in this letter are as of the date of this letter and I undertake no, and hereby disclaim any, obligation to advise you of any change in any matter set forth herein occurring after the date of this letter.

Very truly yours,

▇▇▇▇▇▇ ▇▇▇▇▇

General Counsel

SCHEDULE 1

ADDRESSEES

NRG Investor

Google Investor

DOE

PNC Bank, National Association, doing business as Midland Loan Services, a division of PNC Bank, National Association, in its capacity as Collateral Agent.

Exhibit C

Form of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP California Law Opinion

[See attached.]

April 5, 2011

OPINION LETTER

To the Addressees listed on Schedule I

Re: Solar Partners VIII, LLC

Ladies and Gentlemen:

We have acted as special counsel to Solar Partners VIII, LLC, a Delaware limited liability company (“Borrower”), Ivanpah III Project Holdings, LLC, a Delaware limited liability company (“Member”), BrightSource Energy, Inc., a Delaware corporation (“BSE”), BrightSource Construction Management, Inc., a Delaware corporation (“BSCM”), BrightSource Operations (Israel), Ltd., a corporation organized and existing under the laws of Israel (“BSOI”), and BrightSource Industries (Israel), Ltd., a corporation organized and existing under the laws of Israel (“BSII”) (Borrower, Member, BSE, BSOI, and BSII are referred to individually as an “Opinion Party” and collectively, the “Opinion Parties”), in connection with the preparation, execution and delivery of:

(X) that certain Common Agreement dated as of April 5, 2011 (the “Common Agreement”), by and among (i) Borrower, (ii) the U.S. Department of Energy, acting by and through the Secretary of Energy, (A) for itself as a Credit Party (in such capacity, “DOE”), (B) as guarantor (in such capacity, the “Guarantor”), and (C) as the initial loan servicer (in such capacity, the “Loan Servicer”), and (iii) PNC Bank, National Association, doing business as Midland Loan Services, a division of PNC Bank, National Association, as the initial administrative agent (in such capacity, the “Administrative Agent”); and

(Y) that certain Ivanpah Equity Participation Agreement dated as of April 5, 2011 (the “Equity Participation Agreement”) by and among (i) BSE, (ii) BrightSource Ivanpah Holdings, LLC, a Delaware limited liability company, (iii) NRG Solar Ivanpah, LLC, a Delaware limited liability company and (iv) Danke ▇▇▇▇▇▇ Project LLC, a Delaware limited liability company.

This opinion is being delivered pursuant to (a) Section 4.1.22(a) of the Common Agreement and (b) Section 2.2(s) of the Equity Participation Agreement. Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in Exhibit A of the Common Agreement.

In connection with this opinion, we have examined and relied on originals, or copies certified or otherwise identified to our satisfaction, of the following documents:

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April 5, 2011

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(1)

those documents listed on Schedule II attached hereto (the “California Documents”);

(2)

documents listed on Schedule III attached hereto (the “New York/Federal Documents”); and

(3)

Certificate of Status for Borrower from the Secretary of State of California.

The documents referenced in Part A of Schedule II attached hereto are hereinafter referred to collectively as the “California Project Documents” and the documents referenced in Part B of Schedule II are hereinafter referred to as the “California Financing Documents.” The New York/Federal Documents and the California Documents are collectively referred to as the “Opinion Documents.”

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such organizational records, resolutions, documents and other instruments of the Opinion Parties, and such certificates and comparable documents of public officials, and of officers and representatives of the Opinion Parties, as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth.

In connection with rendering the opinions expressed below, we have assumed the genuineness of all signatures (other than the signatures of the officials of the Opinion Parties), the legal capacity of all natural persons, the identity and capacity of all individuals acting or purporting to act as public officials, the authenticity and accuracy of all documents submitted to us as originals, the conformity to the authentic original documents of all documents submitted to us as copies thereof and the authenticity of the originals of such copies. As to questions of fact material to the opinions expressed below, we have relied, with your consent and to the extent we deemed necessary or appropriate as a basis for such opinions, upon the representations, certificates and statements made or otherwise provided to us by Borrower and Member and their respective officers and other representatives, and of public officials, and upon such documents, records and instruments as we have deemed appropriate, in each case without independent check or verification of the accuracy of such documents, records and instruments.

In rendering our opinion, we have relied as to matters of fact, to the extent we deem necessary and proper, on representations and warranties of the Borrower contained in the Deed of Trust (as defined in Schedule II) and of the Borrower and the other Opinion Parties in the California Documents and the New York/Federal Documents as to certain factual matters and certificates of officers and representatives of the Opinion Parties and certificates of public officials. We have made no independent investigation as to whether the representations and warranties in the Deed of Trust, the California Documents, the New York/Federal Documents or any certificate referred to herein are accurate or complete.

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To the extent that the Opinion Parties’ obligations under the Opinion Documents may be dependent on such matters, with your permission, we have assumed that:

(a) The Collateral Agent is duly formed, validly existing, and in good standing under the laws of its jurisdiction of formation, that it has the requisite power under its organizational documents and applicable law to execute and deliver and to perform its obligations under the Deed of Trust, and that the Collateral Agent has complied with or is exempt from all state and federal laws and regulations and has obtained all regulatory approvals applicable to it arising out of the Deed of Trust or its status as the Collateral Agent under the Deed of Trust and the New York/Federal Documents;

(b) Except with respect to the Borrower and the Member, each of the counterparties to the Opinion Documents is duly formed, validly existing, and in good standing under the laws of its jurisdiction of formation and is qualified to do business in the State of California (except where such qualification is not required by the applicable laws of the State of California), and that it has the requisite power under its organizational documents and applicable law to execute and deliver and to perform its obligations under the respective Opinion Document;

(c) Except as otherwise provided in paragraph 3 below with respect to the Borrower and the Member, the parties to the Opinion Documents have received, or will receive by the time required, and will, to the extent required by any governmental requirement, maintain in full force and effect, all consents, approvals, filings, notices and other authorizations from any Government Authority (collectively, “Governmental Approvals”) which are required for the due execution, delivery and performance by the parties to the Opinion Documents and that, except as otherwise provided in paragraph 3 below with respect to the Borrower and Member, such execution, delivery and performance by the parties to the Opinion Documents does not and will not conflict with any provision of any governmental requirement or the terms of any Governmental Approval applicable to the parties to the Opinion Documents or the conduct of their respective businesses or any agreement or instrument to which they are a party or by which they or their property are bound;

(d) The Deed of Trust and each of the California Documents is valid and binding on, and enforceable against, all parties thereto other than the Opinion Parties that are a party thereto;

(e) At the time of recordation of the Deed of Trust the Borrower will have an interest of record in the real property described therein;

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(f) All conditions precedent to the closing of the transactions contemplated by the New York/Federal Documents have been satisfied or waived, the closing has occurred and all consideration required to be paid or delivered at such closing has been paid or delivered;

(g) The absence of any evidence extrinsic to the provisions of the Opinion Documents indicating that the parties thereto intended a meaning contrary to that expressed by those provisions;

(h) The accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed; and

(i) The first Advance under the Common Agreement has occurred, and all documents and funds have been released from escrow pursuant to that certain Escrow Agreement listed as item 13 on Schedule III attached hereto.

We express no opinion as to the laws of any jurisdiction other than (a) the Laws of the State of California, (b) the Delaware Limited Liability Company Act (“DLLCA”) and (c) the Federal Laws of the United States of America, as all of which are in effect on the date hereof and our opinion is limited to and applies only insofar as such laws may be concerned.

We have assumed that all governmental requirements have been duly enacted and validly promulgated, that all Government Authorities have been duly constituted and that all public officials and all members of said Government Authorities have been duly appointed and are lawfully holding the positions to which they have been elected or appointed, and that any actions taken by them under delegated authority are undertaken pursuant to properly delegated authority.

Based upon and subject to the foregoing, and to the limitations and qualifications described below, we are of the opinion that:

Each of the California Documents to which Borrower or Member is a party has been duly authorized by all required limited liability company action on behalf of Borrower or Member, as applicable, and has been duly executed and delivered by such party.

Each of the California Documents to which an Opinion Party is a party constitutes the legal, valid and binding obligation of such Opinion Party, as applicable, enforceable against it in accordance with the terms of the applicable California Document.

No authorization, consent, waiver, approval or other action by any State of California or Federal governmental or regulatory authority, body or instrumentality under State of California or federal laws is required for (i) the due execution and delivery of the California Documents or the performance by Borrower or Member of its respective

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obligations thereunder or (ii) the grant by Borrower or Member of, or the validity or perfection of, the security interests and liens to Midland Bank, in its capacity as collateral agent for the benefit of the Secured Parties (“Collateral Agent”) pursuant to the Deed of Trust.

Neither the execution and delivery of the California Documents, nor the consummation of the transactions or compliance with the provisions thereof, in each case by Borrower or Member, as applicable, (a) violates any provision of the certificate of formation or the company agreement of Borrower or Member, as applicable, or (b) violates the DLLCA or any California or federal law, rule of regulation or, to our knowledge, any order, writ, injunction or decree of any court or governmental instrumentality of the State of California, or the United States of America binding on Borrower or Member, as applicable.

Except as set forth in Schedule 5.11 of the Disclosure Letter as of the Financial Closing Date, we have not been engaged to represent any Opinion Party in connection with any pending action or proceeding that seeks legal or equitable remedies against such Opinion Party as a result of the transactions contemplated by the Opinion Documents.

The Deed of Trust is in form sufficient to (i) record in the land records of San Bernardino County located in the State of California, and (ii) create a lien on the real property described therein. In order to provide constructive notice of the lien created by such Deed of Trust, it is necessary to record such Deed of Trust in the real estate records of San Bernardino County. No other filings, recordations or re-filing or re-recording is necessary in order to provide such constructive notice of the lien created by such Deed of Trust.

The Deed of Trust is in form sufficient to record as a fixture filing in the land records of San Bernardino County located in the State of California. The Deed of Trust is in form sufficient to create a security interest in the fixtures described therein (the “Fixtures”) in favor of the Collateral Agent. In order to perfect the security interest in the Fixtures created by the Deed of Trust, it is necessary to record such Deed of Trust in the real estate records of San Bernardino County. No other action is necessary to perfect a security interest in the Fixtures described in such Deed of Trust.

Neither the execution and delivery of the New York/Federal Documents or the California Financing Documents by an Opinion Party, nor the consummation of the transactions specifically contemplated therein or compliance with the provisions thereof by such Opinion Party, (i) violates, results in a breach of, or constitutes a default of such Opinion Party under any of the Initial Project Documents (except as specifically contemplated in such Initial Project Document or the Common Agreement) or (ii) results in the creation of any liens or encumbrances upon any of the property of such Opinion Party pursuant to

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the terms of any of the Initial Project Documents (except as specifically contemplated in the Initial Project Document or the Common Agreement).

The Borrower is duly qualified to do business in the State of California as a foreign limited liability company and is in good standing in the State of California. A copy of the Certificate of Status provided by the Secretary of State of the State of California is attached as Exhibit A hereto.

Our opinions expressed above are subject to the following exceptions, qualifications and limitations:

(a) For purposes of our opinions in paragraph 8 hereof, we are not giving any opinion with respect to any action taken by the Borrower as part of its ongoing compliance with covenants set forth in the Opinion Documents.

(b) For purposes of our opinions in paragraph 9 hereof as to the due qualification and good standing of the Borrower, we have relied solely upon the good standing certificate issued by the appropriate authorities in the State of California.

(c) The enforceability of the Deed of Trust and/or the California Documents may be limited by the effects of bankruptcy, insolvency, and reorganization, arrangement, moratorium or other similar laws relating to or affecting the rights and remedies of creditors generally, including, without limitation, laws relating to fraudulent transfers or conveyances, preferences and equitable subordination. In addition, the enforceability of the Deed of Trust and the California Documents is subject to the effect of California Civil Code 1670.5, which provides that a court may refuse to enforce, or may limit the application of, a contract or any clauses thereof which the court finds as a matter of law to have been unconscionable at the time it was made.

(d) The availability of equitable remedies, including without limitation, specific enforcement and injunctive relief, is subject to the discretion of the court before which any proceedings therefor may be brought.

(e) The enforceability of the Deed of Trust and/or the California Documents may be limited by statutory requirements with respect to good faith, fair dealing and commercial reasonableness, by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and by the effect of judicial decisions that have held that certain provisions are unenforceable where enforcement

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would violate the implied covenant of good faith and fair dealing, or would be commercially unreasonable, or where a default is not material.

(f) For the purposes of the opinions set forth in paragraph 4 concerning no violation of California law or Federal law, we have considered only such laws and regulations that in our experience are typically applicable to a transaction of the nature contemplated by the Opinion Documents. Without limiting the foregoing, we express no opinion with respect to (i) the effect of any land use, safety, hazardous material, environmental or similar law, or any local or regional law; (ii) the effect of or compliance with any state or federal laws or regulations applicable to the transactions contemplated by the Opinion Documents because of the nature of the business of any party other than the Opinion Parties; (iii) any antitrust, antifraud, patent, copyright, trademark or other intellectual property matter; or (iv) any energy regulatory law, rule, or regulation that may be applicable to any of the Opinion Parties or to the Project.

(g) Notwithstanding certain language of the Deed of Trust, the Collateral Agent may be limited to recovering only reasonable expenses with respect to the taking, holding, preparing, selling, leasing and the like of the collateral, and only reasonable compensation for funding losses, increased costs or yield protection.

(h) We note the existence of certain waivers by the Borrower in the Deed of Trust and/or by the Opinion Parties in the California Documents that cannot, as a matter of law, be effectively waived. Without limiting the foregoing, we note that under applicable law guarantors may be entitled to certain rights or protections which as a matter of statutory or common law may not be waived or altered. We express no opinion herein as to the enforceability of any provisions of the Deed of Trust and/or the California Documents which purport to waive or alter such rights or protections, except to the extent permitted by law.

(i) We note that the enforceability of the Deed of Trust and/or the California Documents may be limited by the unenforceability under certain circumstances of provisions imposing penalties, forfeitures, late payment charges or an increase in interest rate upon delinquency in payment or an occurrence of default.

(j) We note that Section 1717 of the California Civil Code provides that where a contract permits one party to the contract to recover attorneys’ fees, the prevailing party in any action to enforce any provision of the contract shall be entitled to recover its reasonable attorneys’ fees.

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(k) We express no opinion on the validity or enforceability of any contractual provision in the Deed of Trust and/or the California Documents that, in effect, liquidates damages for the breach of a contract, including the effect of Section 1671 of the California Civil Code, which, in essence, provides that a provision in a contract liquidating the damages for a breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made.

(l) We advise you of the effect of Section 2954.5 of the California Civil Code, which, in essence, prescribes certain procedures that must be followed by a creditor in connection with the imposition of default, delinquency, or late payment charges.

(m) We express no opinion on the validity or enforceability of any provision of the Deed of Trust and/or the California Documents that seeks to define what constitutes good faith or commercially reasonable behavior. We do believe, however, that subject to the qualifications, limitations and exceptions expressed elsewhere in this opinion, enforcement or acceleration would be available if an event of default occurs as a result of a material breach of a material covenant contained in the Deed of Trust.

(n) In circumstances where the Collateral Agent’s security is not materially impaired, we do not render any opinion on the validity or enforceability of the Deed of Trust to the extent that it purports to prohibit or restrict the creation or existence of liens junior to the liens in favor of the Collateral Agent, or to the extent that it purports to grant to the Collateral Agent the right to accelerate maturity of the obligations secured thereby by reason of the creation of any such encumbrances. See La Sala v. American Sav. & Loan Assn., 5 Cal. 3d 864, 880-882 (1971) (materiality of impairment of security); 12 U.S.C. § 1701j-3 (the “▇▇▇▇-St. ▇▇▇▇▇▇▇ Depository Institutions Act of 1982”) (insofar as said statute does not specifically include the creation of junior liens as a type of transfer permitting acceleration).

(o) We do not render any opinion as to the validity or enforceability of any “due-on-sale” clause or similar provision contained in the Deed of Trust permitting the acceleration of the obligations under the Deed of Trust upon the transfer of an interest in any real or personal property collateral for the obligations under the Deed of Trust, insofar as the type of transfer permitting acceleration of the loan under the Participation Agreement is not a type of transfer permitting acceleration of the Loan pursuant to the ▇▇▇▇-St. Germain Depository Institutions Act of 1982.

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(p) We do not render any opinion as to the validity or enforceability of various provisions of the Deed of Trust and/or the California Documents to the extent such provisions purport to indemnify or otherwise exonerate the Collateral Agent or any other indemnified party thereunder from the consequences of its inadvertent failure to take actions required to be taken by the Collateral Agent or such indemnified party thereunder, it being acknowledged that certain defenses, such as waiver, estoppel, and laches, may not be waivable in any event.

(q) Any opinion to the effect that the Deed of Trust and/or the California Documents constitute valid and binding obligations, enforceable in accordance with their terms, does not include an opinion as to the enforceability of indemnification provisions and exculpatory clauses to the extent (i) they may be limited by applicable principles of public policy or Sections 1668 and 2773 of the California Civil Code or (ii) such provisions indemnify the Collateral Agent or any other indemnified party thereunder for its negligence or misconduct.

(r) We do not render any opinion as to the validity or enforceability under certain circumstances of any provision in the Deed of Trust and/or the California Documents purporting to grant to any counterparty therein any “self-help” or summary remedies, including, but not limited to, permitting the Collateral Agent, in the absence of an enforceable judicial order, to enter upon and take possession of the real property subject to the Deed of Trust, to collect rents and to exercise the other rights of the debtor prior to judicial or non-judicial foreclosure thereupon.

(s) We do not render any opinion as to the title to or the descriptions of the real property described in the Deed of Trust or any other property described in the Opinion Documents in which a security interest has been granted pursuant to the Opinion Documents (the “Security”); the existence or effect of liens, security interests, charges, encumbrances or claims of right or ownership with respect to the Security; whether the Security is the property intended to secure the obligations of the debtor under the Opinion Documents; and any matter affecting or in any way related to title.

(t) We do not render any opinion as to the invalidity or unenforceability as a matter of public policy under certain circumstances of any provision in the Deed of Trust and/or the California Documents purporting to grant the Collateral Agent or the respective counterparty thereto a power of attorney.

(u) We do not render any opinion as to the validity or enforceability under certain circumstances of provisions waiving vaguely or broadly stated rights, including, without limitation, any purported waiver of the provisions of Section 1542 of the

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California Civil Code and the effect of statutes or public policy limiting a party’s right to waive unknown claims, or the benefits of statutory provisions or common law rights, and of provisions stating that rights or remedies are not exclusive, that every right or remedy is cumulative and may be exercised in addition to or with any other right or remedy, or that the election of some particular remedy or remedies does not preclude recourse to other remedies.

(v) We do not render any opinion as to the validity or enforceability of any provision in the Deed of Trust and/or the California Documents that allows the Collateral Agent or the relevant counterparty thereto to withhold “unreasonably” or in its “sole discretion” its consent to or approval of any action or proposed action of the Opinion Party that is a party thereto.

(w) We do not render any opinion as to the effect of Section 726 of the California Code of Civil Procedure, which provides, in essence, that any action to recover on a debt or other right secured by a mortgage or a deed of trust on real property must comply with the provisions of that section, which provisions relate to and specify the procedures for the sale of encumbered property, the application of proceeds, the rendition in certain cases of a deficiency judgment, and other related matters. We advise you that in such an action or proceeding, the debtor may require the creditor to exhaust all of its security before a personal judgment may be obtained against the debtor for a deficiency. We also advise you that a failure to comply with the provisions of Section 726 (including an attempt to exercise a right of set off with respect to any funds of the debtor that may be deposited with you from time to time and with respect to which you do not hold a perfected security interest under Division 9 of the CUCC) may result in the loss of the Collateral Agent’s liens on the real and personal property collateral and the loss of your right to a deficiency judgment. See, e.g., ▇▇▇▇▇▇ v. Community Bank, 10 Cal. 3d 729, 518 P.2d 329, 111 Cal. ▇▇▇▇. ▇▇▇ (1974); Security Pacific National Bank ▇. ▇▇▇▇▇, 51 Cal. 3d 991 (1990).

(x) We advise you of the effect of Sections 2924, 2924b and 2924c of the California Civil Code, which, among other things, prescribe certain procedures that must be followed by the holder of a mortgage or deed of trust before exercising a power of sale included under such mortgage or deed of trust and permit the defaulting mortgagor or trustor to reinstate the obligations secured thereby under certain circumstances.

(y) We advise you of the effect of any limitations imposed by law on a lender’s ability to require, maintain, handle and disburse proceeds of an impound, trust or other type of account for the payment of real property taxes and assessments, insurance

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premiums and other purposes relating to such property (e.g., California Civil Code § 2954.1).

(z) We do not render any opinion as to the validity or enforceability as a matter of public policy under certain circumstances of any provision of the Deed of Trust to the effect that notwithstanding certain acts of the Collateral Agent, the Collateral Agent shall not be deemed to be a mortgagee-in-possession.

(aa) We do not render any opinion as to the validity or enforceability of any provisions of the Deed of Trust and/or the California Documents that purport to waive the right of the Opinion Party that is a party thereto to object to jurisdiction or venue or to assert any defense based on lack of jurisdiction or venue.

(bb) We do not render any opinion as to the effect of Section 2955.5 of the California Civil Code, which restricts the right of a lender to require hazard insurance in amounts that exceed the value of the improvements on real property collateral.

(cc) We do not render any opinion as to the effect of Section 564 of the California Code of Civil Procedure, which describes the cases in which the appointment of a receiver is authorized.

(dd) We do not render any opinion as to the effect of limitations imposed by law, and the judicial decisions interpreting same, on the use of insurance proceeds and condemnation proceeds by a lienholder (e.g., California Code of Civil Procedure §§ 1265.210 through 1265.250); and limitations imposed by California law (e.g., California Financial Code §§ 1227.2, 7461) and court decisions restricting the ability of a creditor to enforce certain covenants in debt and security instruments absent a showing of damage to the creditor, impairment of the value of collateral or impairment of the debtor’s ability to pay, e.g., ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, 81 Cal. App. 3d 75 (1978); ▇▇▇▇▇▇▇▇ v. Security Pacific National Bank, 27 Cal. App. 3d 482 (1972); and, in addition, the effect of certain California court decisions, indicating that a California court would probably refuse to give effect to provisions permitting a creditor to accelerate the maturity of indebtedness under certain circumstances if enforcement of such provisions, on the basis of the facts and circumstances then before such court, was not reasonably necessary to protect against impairment of the creditor’s security or the risk of payment default. Depending on the particular facts of such a hypothetical instance, such refusal might rest on one or more public policies disfavoring forfeitures, penalties and restraints against, or the imposition of burdens upon, the alienation of property. We also note the effect of case authority indicating that a creditor may be precluded from exercising its remedies under a mortgage or deed of trust if a court determines that the quantum of harm suffered by a

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creditor as a result of the default or breach upon which the exercise of remedies is premised is outweighed by the quantum of harm that would be suffered by a debtor as a result of such exercise. See Baypoint Mortgage Corp. v. Crest Premium Real Estate Investments Retirement Trust, 168 Cal. App. 3d 818 (1985).

(ee) We advise you of the effect of Section 2889 of the California Civil Code, which provides, among other things, that all contracts in restraint of the right of redemption from a lien are void. We do not believe, however, that Section 2889 invalidates a private power of sale in a deed of trust as provided for in Section 2924 et seq. of the California Civil Code. We do believe, however, that subject to the qualifications, limitations and exceptions expressed elsewhere in this opinion, enforcement or acceleration would be available if an event of default occurs as a result of a material breach of a material covenant contained in the Deed of Trust.

(ff) We advise you of the effect of California Code of Civil Procedure Section 726 and Sections 729.010 through 729.090, which grant certain rights of redemption in the event of a judicial foreclosure of a mortgage or deed of trust.

(gg) We advise you of the effect of Sections 2903 through 2905 of the California Civil Code, which, in essence, grant the owner, junior lienholders and other persons having an interest in the property encumbered by a lien certain rights to redeem that property from the lien at any time after the claim is due and before the right of redemption is foreclosed by performing or offering to perform the act for the performance of which the lien is security and paying or offering to pay certain damages.

(hh) We advise you of the effect of certain court decisions in California, including, but not limited to, Fletcher v. Security Pacific National Bank, 23 Cal. 3d 442 (1979), suggesting that, to the extent that interest paid by a debtor based upon a 360-day year exceeds interest that would accrue at the same rate but computed upon a 365-day year, a California court would enjoin collection of such excess interest and award restitution thereof to the debtor.

(ii) We advise you of the effect of Sections 726.5 and 736 of the California Code of Civil Procedure, which, in essence, specify certain rights and remedies available to a “secured lender” for breach of an “environmental provision” relating to “real property security” (as such terms are defined in Section 736), which provisions may, among other things, limit the Collateral Agent’s rights and remedies under the Deed of Trust.

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(jj) We advise you of the effect of Sections 580b and 580d of the California Code of Civil Procedure, which limit or prohibit a secured party in certain circumstances from recovering a deficiency after foreclosure of a deed of trust or mortgage.

(kk) We advise you of the effect of Section 2938 of the California Civil Code, which governs, among other things, the effect of an assignment of an interest in leases, rents, issues or profits; the method of perfecting such an assignment; the enforcement of an assignee’s rights thereunder; and the rights of tenants, the assignor, the assignee and any other assignees with respect to such leases, rents, issues and profits.

(ll) We do not render any opinion as to the validity or enforceability of any provision in the Deed of Trust and/or the California Documents purporting to waive the right to a jury trial of the Opinion Party that is a party thereto or which specifies a specific venue or jurisdiction for the resolution of disputes.

(mm) We do not render any opinion as to the validity or enforceability of any provision in the Deed of Trust that purports to create security for future advances to be made by the Credit Parties to the Borrower (pertaining to credit accommodations which are not specifically described in the Deed of Trust or the New York/Federal Documents).

(nn) We advise you of the fact that, to the extent that any of the provisions of the Deed of Trust and/or the California Documents are construed as suretyship obligations, sureties (including guarantors, third party pledgors and co-borrowers) have various rights and defenses to suretyship obligations under the laws of the State of California. See, e.g., California Civil Code §§ 2819-2854. California statutes and cases provide that a surety may be exonerated if the creditor materially alters the original obligation of the obligor (such as the Borrower) without the consent of any guarantor or third party pledgor, elects remedies for default which impair the subrogation rights of the guarantor against the obligor, or otherwise takes any action without notifying the guarantor which materially prejudices the guarantor. See, e.g., Cal. Civil Code §§ 2810 and 2819; Union Bank ▇. ▇▇▇▇▇▇▇, 265 Cal. App. 2d 40, 71 Cal. ▇▇▇▇. ▇▇ (1968); Sumitomo Bank of California ▇. ▇▇▇▇▇▇▇, 70 Cal. 2d 81, 447 P.2d 956, 73 Cal. Rptr. 564 (1968); ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 68 Cal. 2d 81, 65 Cal. Rptr. 158 (1968). However, there is authority to the effect that a guarantor may validly waive such rights if the waivers are expressly set forth in the guaranty. Cal. Civil Code § 2856; ▇▇▇▇▇▇▇ v. Bank of America, 145 Cal. App. 3d 204, 193 Cal. ▇▇▇▇. ▇▇▇ (1983). Section 2856 of the California Civil Code, in subsection (b), states that any language that expresses an intent to waive certain specified suretyship rights and defenses shall be effective to waive such rights and defenses, and subsections (c) and (d) set forth specific “safe-harbor” language that is deemed to create an effective waiver of the rights and defenses specified therein. We

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express no opinion with respect to the effect on the enforceability of any provisions in the Deed of Trust and/or the California Documents with respect to (i) any modification or amendment of the obligation of the obligor(s) that materially increases such obligations, (ii) rights and defenses of any surety that a California court may deem fundamental, or (iii) any other action by the Collateral Agent or any counterparty to the California Documents which materially prejudices the surety unless such modification, amendment, election or other action is made with the written consent of such surety.

(oo) We do not render any opinion as to the enforceability of any provision of the Deed of Trust and/or the California Documents permitting modification thereof only by means of an agreement in writing signed by the parties thereto. Section 1698 of the California Civil Code provides that an oral modification to a contract may be enforced if the oral modification was performed notwithstanding a contrary provision in the document.

(pp) We note limitations on the Collateral Agent’s lien upon collateral imposed in some circumstances by applicable California statutes or judicial decisions, including without limitation by Sections 9307 and 9308 of the CUCC, and the resulting possibility that buyers and purchasers of the collateral in some circumstances may acquire the collateral free of the Collateral Agent’s lien.

(qq) We do not render any opinion as to the enforceability of any provision in the Deed of Trust and/or the California Documents that purports to be binding on third parties.

(rr) We note that to the extent provided by Division 9 of the California Uniform Commercial Code, additional filings with respect to the Fixtures may also be necessary to continue perfection of all or certain of the Fixtures if the Borrower changes its name (or the Deed of Trust otherwise becomes seriously misleading) or if the Borrower changes its jurisdiction of organization.

(ss) In giving the opinions set forth above relating to the liens or security interests created by the Deed of Trust, we express no opinion as to the Borrower’s right, title or interest in or to any collateral or the description thereof in the Deed of Trust.

(tt) We express no opinion as to:

The enforceability of any provisions contained in the Deed of Trust and/or the California Documents that purport to establish (or may be construed to establish) evidentiary standards;

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ii.

The enforceability of forum selection clauses;

iii.

The enforceability of any provision of the Deed of Trust and/or the California Documents insofar as it provides that the Collateral Agent or any other Person may exercise set-off or similar rights other than in accordance with applicable law;

iv.

The legality, validity, binding effect or enforceability of any provision of the Deed of Trust and/or the California Documents insofar as it provides for the payment or reimbursement of costs and expenses or indemnification for claims, losses, or liabilities in excess of a reasonable amount determined by any court or other tribunal;

The efficacy of any provisions in the Deed of Trust and/or the California Documents that purport to be agreements by the parties but that are, in effect, legal conclusions regarding the characterization of certain provisions in the Deed of Trust and/or the California Documents;

vi.

Whether any divisions of real property or any interests therein contemplated by the Deed of Trust comply with the Subdivision Map Act (as defined in Section 66410 et seq. of the California Government Code) or any city, county or other local rules, ordinances or regulations promulgated by authority thereof or in connection therewith;

vii.

The enforceability under certain circumstances of provisions indemnifying a party against liability for its own wrongful or negligent acts;

viii.

The effect of the compliance or non-compliance of the Collateral Agent or any counterparty to the California Documents with any state or federal laws or regulations (including, without limitation, any unpublished order, decree, or directive issued by any governmental authority) applicable to the Collateral Agent or such counterparty because of its legal or regulatory status, the nature of its business, or its authority to conduct business in any jurisdiction;

ix.

The binding effect or enforceability of negative pledge clauses contained in the Deed of Trust and/or the California Documents;

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The enforceability of any provisions of the Deed of Trust and/or the California Documents that provide that the assertion or employment of any right or remedy shall not prevent the concurrent assertion or employment of any other right or remedy, or that each and every remedy shall be cumulative and in addition to every other remedy, or that any delay or omission to exercise any right or remedy shall not impair any other right or remedy or constitute a waiver thereof; or

xi.

The creation, attachment or perfection of any lien or security interest except as expressly set forth in paragraphs 6 and 7 above, or the priority of any lien or security interest.

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This opinion is rendered to each of the parties listed on Schedule I attached hereto and their successors and permitted assigns, and may not be relied upon by any other person or entity without our prior written consent. This opinion may be relied upon solely as of the date hereof, and we undertake no obligation to update or supplement this opinion after the date hereof for any addressee or any other person; provided, however, that any assignee of a Lender pursuant to Section 7.22 of the Common Agreement may rely on this opinion with the same effect as if it were originally addressed and delivered to such assignee on the date hereof.

Very truly yours,

Schedule I

Addressees

U.S. Department of Energy, acting by and through the Secretary of Energy

PNC Bank, National Association, doing business as Midland Loan Services, a division of PNC Bank, National Association

NRG Solar Ivanpah LLC, a Delaware limited liability company

Danke ▇▇▇▇▇▇ Project LLC, a Delaware limited liability company

Schedule II

California Documents

All terms used herein and not defined or otherwise specified below or in the opinion letter to

which this Schedule is attached have the meanings assigned to them in the

Common Agreement.

Part A – California Project Documents

1.	Amended and Restated Master Services Contract among the Project Companies and EPC Contractor, dated as of July 23, 2010 (including items (a) through [(i)]below).

Master Services Contract Change Order No. 001, dated November 19, 2009.

Master Services Contract Change Order No. 002, dated February 24, 2010.

Master Services Contract Change Order No. 003, dated February 25, 2010.

Master Services Contract Change Order No. 004, dated March 26, 2010.

Master Services Contract Change Order No. 005, dated June 30, 2010.

Master Services Contract Change Order No. 006, dated July 16, 2010.

Master Services Contract Change Order No. 007, dated September 14, 2010.

Master Services Contract Change Order No. 008, dated November 8, 2010.

[Master Services Contract Change Order No. 009, (withdrawn).]

2.	Amended and Restated Supply Contract between Borrower and Siemens, dated as of August 11, 2010.

3.	Assignment of Supply Contract between Borrower and EPC Contractor, dated as of April , 2011.¹

4.	Base Contract for Sale and Purchase of Natural Gas between Borrower and Shell Energy North America (US), L.P., dated March 1, 2011.

5.	BLM Right-of-Way Grant among the BLM, Solar Partners II, LLC, Solar Partners I, LLC and Solar Partners VIII, LLC (together, Solar Partners II, LLC, Solar Partners I, LLC and

¹	To be dated the date of the first funding under the Common Agreement.

Solar Partners VIII, LLC, the “Project Companies”) (ROW CACA-49502), dated October 7, 2010.

BLM Right-of-Way Grant CACA-49502 Amendment #1, dated March 14, 2011.

6.	BLM Right-of-Way Grant between the BLM and Borrower (ROW CACA-49503), dated October 7, 2010.

7.	Common Projects Contract among EPC Contractor and the Project Companies, dated as of September 29, 2010.

8.	Common Projects Solar Field Agreement among BSCM and the Project Companies, dated as of April 5, 2011.

9.	Compliance Services Agreement between Sponsor and Borrower, dated as of April 5, 2011.

10.	Construction Management Agreement between Construction Manager and Borrower, dated as of April 5, 2011.

Non-Disclosure Agreement between Construction Manager and Borrower dated as of April 5, 2011.

11.	Continuing General Services Agreement between BSCM and Borrower, dated as of April 5, 2011.

12.	Equipment and Construction Contract between EPC Contractor and Borrower, dated as of September 29, 2010.

Equipment and Construction Contract Change Order No. 10, dated January 26, 2011.

Equipment and Construction Contract Change Order No. 11, dated January 19, 2010 [sic].

Equipment and Construction Contract Change Order No. 12, dated February 3, 2011.

13.	Facilities Agreement – Ivanpah Meter Station between Kern River Gas Transmission Company, a Texas general partnership, and Sponsor, dated September 10, 2010.

14.	Assignment and Assumption of Facilities Agreement among Sponsor and Project Companies, dated as of November 12, 2010.

15.	Fair-Share Contribution Agreement among the San Bernardino County Fire Protection District, the County of San Bernardino, and the Project Companies, dated as of December 14, 2010.

16.	Operation and Maintenance Agreement between Operator and Borrower, dated as of April 5, 2011.

Non-Disclosure Agreement between Operator and Borrower, dated as of April 5, 2011.

17.	Power Purchase and Sale Agreement between PG&E and Borrower, dated April 28, 2009.

First Amendment to Power Purchase and Sale Agreement, dated July 7, 2010.

18.	Project Management Agreement between Administrator and Borrower, dated as of April 5, 2011.

Non-Disclosure Agreement between Administrator and Borrower, dated as of April 5, 2011.

19.	Renewable Power Purchase and Sale Agreement between SCE and Borrower, dated as of February 5, 2009.

20.	Shared Facilities and Co-Tenancy Agreement among the Project Companies, dated as of April 5, 2011.

Memorandum of Shared Facilities and Co-Tenancy Agreement among the Project Companies, dated as of April 5, 2011.

21.	Shared Facilities O&M Agreement among the Project Companies and Operator, dated as of April 5, 2011.

Non-Disclosure Agreement between each Project Company and Operator, dated as of April 5, 2011.

22.	Solar Field Agreement between BSCM and Borrower, dated as of April 5, 2011.

23.	Solar Field Supply Subcontract among EPC Contractor, BSOI, and BSCM for the Ivanpah III Project, dated as of September 29, 2010.

24.	Standard Large Generator Interconnection Agreement among SCE, California Independent System Operator Corporation, a California nonprofit public benefit corporation (“CAISO”) and Borrower, dated July 30, 2010.

First Amendment to Standard Large Generator Interconnection Agreement, dated January 26, 2011.

25.	▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ between BSCM and SRSG Supplier for Ivanpah III, dated August 12, 2010.

Change Order Number 100473-016 dated March 21, 2011 (SRSG Purchasing Agreement)

Change Order Number 100473-019 dated February 22, 2011 (SRSG Purchasing Agreement)

Change Order Number 100473-024 dated December 10, 2010 (SRSG Purchasing Agreement)

Change Order Number 100473-031 dated March 12, 2011 (SRSG Purchasing Agreement)

Change Order Number 100473-034 dated March 9, 2011 (SRSG Purchasing Agreement)

Change Order Number 100473-039 dated March 10, 2011 (SRSG Purchasing Agreement)

Change Order Number 100473-041 dated March 18, 2011 (SRSG Purchasing Agreement)

Change Order Number 100497-001 dated November 23, 2010 (SRSG Purchasing Agreement)

Change Order Number 100501-003 dated November 29, 2010 (SRSG Purchasing Agreement)

Change Order Number 100501-004 (Unit 3) dated February 25, 2011 (SRSG Purchasing Agreement)

Change Order Number 100501-005 (Unit 3) dated February 22, 2011 (SRSG Purchasing Agreement)

Change Order Number 100501-007 (Unit 3) dated February 22, 2011 (SRSG Purchasing Agreement)

Change Order Number 100501-012 (Unit 3) dated February 25, 2011 (SRSG Purchasing Agreement)

Part B – California Financing Documents

1.	BrightSource Energy, Inc. Ivanpah 3 Parent Company Guarantee by Sponsor for the benefit of EPC Contractor, dated September 29, 2010 (Solar Field Supply Subcontract).

2.	Consent and Agreement between PG&E and Collateral Agent, dated as of April 5, 2011.

3.	Consent and Direct Agreement (EPC Contractor) among Borrower, Collateral Agent and EPC Contractor, dated as of April 5, 2011.

4.	Consent and Direct Agreement (NRG Affiliates) among Borrower, Collateral Agent, Operator, Shared Facilities Operator, Construction Manager and Asset Manager, dated as of April 5, 2011.

5.	Consent and Direct Agreement (SFA Contractors) among BSCM, Sponsor and Collateral Agent, dated as of April 5, 2011.

6.	Consent and Direct Agreement (SRSG Supplier) among Borrower, Collateral Agent and SRSG Supplier, dated as of April 5, 2011.

7.	Consent and Direct Agreement (STG Supplier) among Borrower, EPC Contractor, Siemens and Collateral Agent, dated as of April 5, 2011.

8.	Construction and Permanent Leasehold Deed of Trust with Assignment of Rents and Fixture Filing (California) made by Borrower, for the benefit of ▇▇▇▇▇▇▇ Title Insurance Company of California, Inc., as Trustee, and Collateral Agent, as beneficiary, dated as of April 5, 2011.

9.	Deferred Contract Amount Promissory Note by Borrower, for the benefit of and acknowledged by EPC Contractor, dated April 5, 2011 (Equipment and Construction Contract).

10.	Environmental Indemnity Agreement by Borrower for the benefit of Collateral Agent, dated as of April 5, 2011.

11.	Escrow Agreement among Borrower, Siemens, and ▇▇▇▇▇ Fargo Bank, National Association, dated September 1, 2010.

12.	Indemnity Agreement among EPC Contractor, DOE, and Collateral Agent, dated as of April 5, 2011.

13.	Indemnity Agreement among Sponsor, DOE, and Collateral Agent, dated as of April 5, 2011.

14.	Parent Company Guaranty by Sponsor, for the benefit of EPC Contractor, dated April 5, 2011.

15.	Parent Company Guarantee by Sponsor, for the benefit of SRSG Supplier, dated August 12, 2010.

16.	Parent Guarantee by Sponsor for the benefit of Borrower, dated April 5, 2011 (Solar Field Agreement).

17.	Securities Account Control Agreement among Borrower, PG&E and ▇▇▇▇▇ Fargo Bank National Association, dated as of March 25, 2008.

18.	Security Escrow Agreement among BSCM, BSOI, Sponsor, Collateral Agent and Borrower, dated as of April 5, 2011.

19.	Subordination Agreement by BSCM for the benefit of Collateral Agent, dated as of April 5, 2011.

20.	Subordination Agreement by BSOI for the benefit of Collateral Agent, dated as of April 5, 2011.

21.	Subordination Agreement by EPC Contractor for the benefit of Collateral Agent, dated as of April 5, 2011.

22.	Subordination Agreement by Siemens for the benefit of Collateral Agent, dated as of April 5, 2011.

23.	Subordination Agreement by SRSG Supplier for the benefit of Collateral Agent, dated as of April 5, 2011.

Schedule III

New York/Federal Documents

All terms used herein and not defined or otherwise specified below or in the opinion letter to

which this Schedule is attached have the meanings assigned to them in the

Common Agreement.

1.	Blocked Account Control Agreement among Borrower, PNC Bank, National Association, Collateral Agent and DOE, dated as of April 5, 2011.

2.	Common Agreement among Borrower, DOE and Administrative Agent, dated as of April 5, 2011.

3.	Equity Contributor Guaranty Agreement among Google, Borrower and Collateral Agent, dated as of April 5, 2011 (Supporting the Equity Commitment of Google Ivanpah under the Equity Funding Agreement).

4.	Equity Contributor Guaranty Agreement among Google, Borrower and Collateral Agent, dated as of April 5, 2011 (Supporting the Recapture Indemnity from Google Ivanpah under the Equity Funding Agreement).

5.	Equity Contributor Guaranty Agreement among Google, Borrower and Collateral Agent, dated as of April 5, 2011 (Supporting the ITC Compensation Payment of Google Ivanpah under the Equity Funding Agreement).

6.	Equity Contributor Guaranty Agreement among NRG, Borrower and Collateral Agent, dated as of April 5, 2011 (Supporting the Recapture Indemnity from NRG Solar under the Equity Funding Agreement).

7.	Equity Contributor Guaranty Agreement among NRG, Borrower and Collateral Agent, dated as of April 5, 2011 (Supporting the ITC Compensation Payment of NRG Solar under the Equity Funding Agreement).

8.	Equity Contributor Guaranty Agreement among Sponsor, Borrower and Collateral Agent, dated as of April 5, 2011 (Supporting the Recapture Indemnity from BrightSource Ivanpah under the Equity Funding Agreement).

9.	Equity Contributor Guaranty Agreement among Sponsor, Borrower and Collateral Agent, dated as of April 5, 2011 (Supporting the ITC Compensation Payment from BrightSource Ivanpah under the Equity Funding Agreement).

10.	Equity Funding Agreement among Borrower, Sponsor, Equity Contributor, Collateral Agent and DOE, dated as of April 5, 2011.

11.	Equity Pledge Agreement between Project Holding Company and Collateral Agent, dated as of April 5, 2011.

12.	Equity Termination Agreement among Sponsor, BrightSource Ivanpah, NRG Solar, Google Ivanpah, Project Companies, Asset Manager, Construction Manager and Operator, dated as of April 5, 2011.

13.	Escrow Agreement among Project Companies, BrightSource Ivanpah, Sponsor, NRG Solar, Google Ivanpah, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, Hercules, Administrative Agent, ▇▇▇▇▇▇▇ Title Guaranty Company and Chicago Title Insurance Company, dated as of April 5, 2011.

14.	Financing Statements attached as Exhibit A to the opinion letter to which this Schedule II is attached.

15.	Fee Letter Agreement by Borrower for the benefit of Collateral Agent, dated February 16, 2011.

16.	Future Advance Promissory Note entered into Borrower for the benefit of FFB and guaranteed by DOE, dated April 5, 2011 (Short Term Advance).

17.	Future Advance Promissory Note entered into by Borrower for the benefit of FFB and guaranteed by DOE, dated April 5, 2011 (Long Term Advance).

18.	Ivanpah III Equity Participation Agreement among Sponsor, BrightSource Ivanpah, NRG Solar and Google Ivanpah, dated as of April 5, 2011.

19.	Note Purchase Agreement among Borrower, FFB and DOE, dated April 5, 2011.

20.	Power of Attorney executed by Borrower for the benefit of Collateral Agent, dated as of April 5, 2011.

21.	Security Agreement between Borrower and Collateral Agent, dated as of April 5, 2011.

22.	Services and Indemnity Agreement among ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a natural person, Global Securitization Services, LLC, a Delaware limited liability company (“Global”), Borrower and Member, dated as of April 5, 2011.

23.	Sponsor Support Agreement among Borrower, the BrightSource Parties, Collateral Agent and DOE, dated as of April 5, 2011.

24.	Equity Contribution Guaranty Agreement among Sponsor, Borrower and Collateral Agent, dated as of April 5, 2011.

Exhibit A

Status Certificate of Borrower

See attached.

Exhibit B

Financing Statements

See attached.

Exhibit D

Form of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP New York Law Opinion

[See attached.]

April 5, 2011

OPINION LETTER

To the Addressees listed on Schedule I

Re:

Solar Partners VIII, LLC

Ladies and Gentlemen:

We have acted as special counsel to Solar Partners VIII, LLC, a Delaware limited liability company (“Borrower”), Ivanpah III Project Holdings, LLC, a Delaware limited liability company (“Member”), BrightSource Energy, Inc., a Delaware corporation (“Sponsor”), BrightSource Construction Management, Inc., a Delaware corporation (“BSCM”), BrightSource Operations (Israel), Ltd., a corporation organized and existing under the laws of Israel (“BSOI”), and BrightSource Industries (Israel), Ltd., a corporation organized and existing under the laws of Israel (“BSII”) (Borrower, Member, Sponsor, BSCM, BSOI, and BSII are referred to individually as an “Opinion Party” and collectively, the “Opinion Parties”), in connection with the preparation, execution and delivery of:

(Y) that certain Ivanpah Equity Participation Agreement dated as of April 5, 2011 (the “Equity Participation Agreement”) by and among (i) Sponsor, (ii) BrightSource Ivanpah Holdings, LLC, a Delaware limited liability company, (iii) NRG Solar Ivanpah, LLC, a Delaware limited liability company and (iv) Danke ▇▇▇▇▇▇ Project LLC, a Delaware limited liability company.


To the Addressees listed on Schedule I		-2-		April 5, 2011

In connection with this opinion, we have examined and relied on originals, or copies certified or otherwise identified to our satisfaction, of the following documents:

(1) the documents listed on Schedule II attached hereto;

(2) a copy of the certificate of formation, dated as of April 9, 2007, of Borrower, as certified by the Secretary of State of the state of Delaware on March 15, 2011;

(3) a copy of the certificate of formation, dated as of February 23, 2011, of Member, as certified by the Secretary of State of the state of Delaware on March 21, 2011;

(4) Certificate of Good Standing for Borrower from the Secretary of State of Delaware;

(5) Certificate of Good Standing for Member from the Secretary of State of Delaware;

(6) Amended and Restated Limited Liability Company Agreement of Solar Partners VIII, dated March 24, 2011 (the “LLC Agreement”); and

(7) unfiled copies of UCC financing statements in the form attached hereto as Exhibit A with respect to Borrower as the “Debtor” (the “Borrower Financing Statement”) and Member as the “Debtor” (the “Member Financing Statement” and together with the Borrower Financing Statement, the “Financing Statements”).

The documents referenced in Part A of Schedule II attached hereto are hereinafter referred to collectively as the “Opinion Documents.” The documents referenced in Part B of Schedule II attached hereto are hereinafter referred to collectively as the “New York/Federal Opinion Documents.”

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate records, agreements, documents and other instruments, and such certificates and comparable documents of public officials and of officers and representatives of the Opinion Parties, as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth.

“New York UCC” shall mean the Uniform Commercial Code as in effect on the date hereof in the state of New York (without regard to laws referenced in Section 9-201 thereof).

“Delaware UCC” shall mean the Uniform Commercial Code as in effect on the date hereof in the state of Delaware (without regard to laws referenced in Section 9-201 thereof).


To the Addressees listed on Schedule I		-3-		April 5, 2011

In connection with rendering the opinions expressed below, we have assumed the genuineness of all signatures (other than the signatures of the officials of Borrower and Member), the legal capacity of all natural persons, the identity and capacity of all individuals acting or purporting to act as public officials, the authenticity and accuracy of all documents submitted to us as originals, the conformity to the authentic original documents of all documents submitted to us as copies thereof and the authenticity of the originals of such copies. As to questions of fact material to the opinions expressed below, we have relied, with your consent and to the extent we deemed necessary or appropriate as a basis for such opinions, upon the representations, certificates and statements made or otherwise provided to us by the Opinion Parties and their respective officers and other representatives, and of public officials, and upon such documents, records and instruments as we have deemed appropriate, in each case without independent check or verification of the accuracy of such documents, records and instruments.

Further, we have assumed (i) that each of the parties (other than Borrower and Member) to the Opinion Documents (A) is duly organized or formed and validly existing under the laws of its respective jurisdiction of organization or formation and has full power, authority, and legal right to enter into and perform its obligations under the Opinion Documents to which it is a party, (B) has duly authorized each of the Opinion Documents to which it is a party, and (C) has duly executed and delivered each of the Opinion Documents to which it is a party, (ii) that each of the Opinion Documents constitutes the legal, valid and binding obligation of each of the parties thereto (other than the Opinion Parties), enforceable against such parties in accordance with its terms, (iii) that, except as otherwise provided in paragraph 3 below with respect to the Opinion Parties, the parties to the Opinion Documents have received, or will receive by the time required, and will, to the extent required by any governmental requirement, maintain in full force and effect, all consents, approvals, filings, notices and other authorizations from any Government Authority (collectively, “Governmental Approvals”) which are required for the due execution, delivery and performance by the parties to the Opinion Documents and that, except as otherwise provided in paragraph 3 below with respect to the Opinion Parties, such execution, delivery and performance by the parties to the Opinion Documents does not and will not conflict with any provision of any governmental requirement or the terms of any Governmental Approval applicable to the parties to the Opinion Documents or the conduct of their respective businesses or any agreement or instrument to which they are a party or by which they or their property are bound, (iv) the absence of any evidence extrinsic to the provisions of the Opinion Documents indicating that the parties thereto intended a meaning contrary to that expressed by those provisions, and (v) the accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed.

We have also assumed that the first Advance under the Common Agreement has occurred and all documents and funds have been released from escrow pursuant to that certain Escrow Agreement listed as item 13 on Part A of Schedule II attached hereto.


To the Addressees listed on Schedule I		-4-		April 5, 2011

We express no opinion as to the laws of any jurisdiction other than (a) the laws of the state of New York, (b) the Delaware Limited Liability Company Act (the “DLLCA”), (c) subject to the qualification in paragraph (h) below, the Delaware UCC, and (d) the federal laws of the United States of America, as all of which are in effect on the date hereof, and our opinion is limited to and applies only insofar as such laws may be concerned.

Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that:

1. Each of Borrower and Member is a limited liability company validly existing and in good standing under the laws of the state of Delaware and has the requisite limited liability company power and authority to execute and deliver the Opinion Documents to which it is a party, to perform its obligations thereunder and to consummate the transactions contemplated thereby.

2. Each of the Opinion Documents to which Borrower or Member is a party has been duly authorized by all required limited liability company action on behalf of Borrower or Member, as applicable, and has been duly executed and delivered by such party.

3. No authorization, consent, waiver, registration, approval or other action by any state of New York or federal governmental or regulatory authority, body or instrumentality under state of New York or federal laws is required for (i) the due execution and delivery of the New York/Federal Opinion Documents or the performance by any Opinion Party of its respective obligations thereunder or (ii) the grant by Borrower or Member of, or the validity or perfection of, the security interests and liens to Midland Bank, in its capacity as collateral agent for the benefit of the Secured Parties (“Collateral Agent”).

4. Neither the execution and delivery of the New York/Federal Opinion Documents to which it is a party, nor the consummation of the transactions contemplated thereby or compliance with the provisions thereof in each case, by Borrower or Member, as applicable, (i) violates any provision of the certificate of formation or the company agreement of Borrower or Member, as applicable, or (ii) violates the DLLCA or any New York or federal law, rule or regulation or, to our knowledge, any order, writ, injunction or decree of any court or governmental instrumentality of the state of New York or the United States of America binding on Borrower or Member, as applicable.


To the Addressees listed on Schedule I		-5-		April 5, 2011

5. Neither the execution and delivery of the New York/Federal Opinion Documents to which it is a party, nor the consummation of the transactions contemplated thereby or compliance with the provisions thereof in each case, by BSII, BSOI, Sponsor or BSCM, as applicable, violates any New York or federal law, rule or regulation.

6. Each New York/Federal Opinion Document to which an Opinion Party is a party and the LLC Agreement constitutes the legal, valid and binding obligation of such Opinion Party enforceable against it in accordance with the terms of such New York/Federal Opinion Document or the LLC Agreement.

7. The provisions of the Security Agreement listed as document number 21 on Part B of Schedule II to this opinion letter (the “Security Agreement”) are effective to create in favor of Collateral Agent a valid security interest in all right, title and interest of Borrower in those items of the Collateral (as such term is defined in the Security Agreement) in which a security interest can be created under Article 9 of the New York UCC (the “Borrower Article 9 Collateral”), as security for the Secured Obligations.

8. The provisions of the Account Control Agreement listed as document 1 on Part B of Schedule II to this opinion letter (the “Account Control Agreement”) are effective to perfect a valid security interest in the Accounts (as such term is defined in the Account Control Agreement) (each, a “Relevant Account” and collectively, the “Relevant Accounts”) in favor of Collateral Agent in Borrower’s rights in the Relevant Accounts under the New York UCC and the financial assets (within the meaning of Section 8-102 (a)(9) of the New York UCC), as security for the Secured Obligations.

9. The provisions of the Equity Pledge Agreement listed as document 11 on Part B of Schedule II to this opinion letter (the “Equity Pledge Agreement”) are effective to create in favor of Collateral Agent a valid security interest in all right, title and interest of Member in those items of the Collateral (as defined in the Equity Pledge Agreement), in which a security interest can be created under Article 9 of the New York UCC (the “Member Article 9 Collateral”), as security for the Secured Obligations.

10. The location of Borrower and Member, for purposes of Section 9-307(e) of the New York UCC, is the state of Delaware, and the Financing Statements are each in appropriate form for filing in the office of the Secretary of State of the state of Delaware under the Delaware UCC, and upon the proper filing thereof, the security interest of Collateral Agent in the Borrower Article 9 Collateral and the Member Article 9 Collateral will be perfected to the extent that a security interest therein can be perfected by filing of a financing statement in the office of the Secretary of State of the state of Delaware.

11. Upon the delivery to Collateral Agent in the state of the New York of the certificate representing the membership interests in Borrower (the “Pledged Securities”) pursuant


To the Addressees listed on Schedule I		-6-		April 5, 2011

to the Equity Pledge Agreement and endorsed, by an effective endorsement, either in blank or to Collateral Agent, Collateral Agent will have a perfected security interest in the Pledged Securities under the New York UCC. In addition, if Collateral Agent has no notice of any adverse claims (within the meaning of Section 8-105 of the New York UCC) with respect to the Pledged Securities, Collateral Agent will acquire the Pledged Securities free of any adverse claims under Section 8-303 of the New York UCC.

Our opinions are subject to the following limitations, qualifications, exceptions and assumptions:

(a) Our opinion set forth in paragraph 1 above as to the existence and good standing of Borrower and Member under the laws of the state of Delaware is based solely on our review of the certificates enumerated as items (2) through (5) in the second paragraph hereof.

(b) Our opinions set forth in paragraphs 3 through 5 above are based upon a review of those statutes, rules and regulations that, in our experience, are normally applicable to transactions of the type contemplated by the Opinion Documents.

(c) In giving the opinion set forth in paragraphs 4 and 5 above, we express no opinion as to any violation of the DLLCA, New York or United States federal law, statute, rule or regulation by any party other than the Opinion Parties, which is the result of the execution and delivery of the Opinion Documents, the consummation of the transactions contemplated therein or compliance with the provisions thereof.

(d) Our opinion set forth in paragraph 6 above with respect to the enforceability of the New York/Federal Opinion Documents and the LLC Agreement is subject to the following:

(i) the enforceability of the New York/Federal Opinion Documents and the LLC Agreement may be limited by the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws relating to or affecting the rights of creditors generally, including, without limitation, laws relating to fraudulent transfers or conveyances, preferences and equitable subordination;

(ii) the enforceability of the New York/Federal Opinion Documents and the LLC Agreement may be limited by statutory requirements with respect to good faith, fair dealing and commercial reasonableness, by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and by the effect of judicial decisions that have held that certain provisions are unenforceable where their enforcement would violate the implied


To the Addressees listed on Schedule I		-7-		April 5, 2011

covenant of good faith and fair dealing, or would be commercially unreasonable, or where a default is not material, including those provisions regarding various self-help or summary remedies without notice or opportunity for hearing or correction, especially if their operation would work a forfeiture or impose a penalty upon the burdened party;

(iii) certain remedial provisions of the New York/Federal Opinion Documents may be unenforceable in whole or in part under the laws of the state of New York, including under Sections 9-602, 9-603, 9-624 or other applicable provisions of the New York UCC, but the inclusion of such provisions does not render the New York/Federal Opinion Documents otherwise unenforceable nor does such inclusion make the remedies afforded by the New York/Federal Opinion Documents inadequate for the practical realization of the rights and benefits purported to be provided thereby;

(iv) notwithstanding certain language of the New York/Federal Opinion Documents, the Secured Parties, each may be limited to recovering only reasonable expenses with respect to the taking, holding, preparing, selling, leasing and the like of any collateral pledged under Article 9 of the New York UCC, and only reasonable compensation for funding losses, increased costs or yield protection; and

(v) the availability of equitable remedies, including without limitation specific enforcement and injunctive relief, is subject to the discretion of the court before which any proceedings therefor may be brought.

(e) In giving the opinion set forth in paragraph 6 above with respect to the enforceability of the New York/Federal Opinion Documents and the LLC Agreement, we express no opinion as to:

(i) the enforceability of any provisions of the New York/Federal Opinion Documents and the LLC Agreement that purport to establish (or may be construed to establish) evidentiary standards;

(ii) the legality, validity, binding effect or enforceability of any provisions of the New York/Federal Opinion Documents and the LLC Agreement insofar as they provide for the payment or reimbursement of costs and expenses or indemnification for claims, losses or liabilities that are determined by any court or other tribunal to be in excess of a reasonable amount or to be against public policy, or in connection with


To the Addressees listed on Schedule I		-8-		April 5, 2011

willful, reckless or unlawful acts or gross negligence of the indemnified or exculpated party or the party receiving reimbursement or contribution;

(iii) the enforceability under certain circumstances of any provisions of the New York/Federal Opinion Documents and the LLC Agreement indemnifying a party against liability for its own wrongful or negligent acts;

(iv) the effect of the compliance or noncompliance by the Secured Parties with any state or federal laws or regulations (including, without limitation, any unpublished order, decree, or directive issued by any Government Authority) applicable to such Person because of its legal or regulatory status, the nature of its business or its authority to conduct business in any jurisdiction;

(v) the enforceability of any provision of the New York/Federal Opinion Documents that may be rendered unenforceable by operation of Sections 9-401, 9-406, 9-407, 9-408 and 9-409 of the New York UCC;

(vi) the enforceability of any provisions of the New York/Federal Opinion Documents and the LLC Agreement that provide that the assertion or employment of any right or remedy shall not prevent the concurrent assertion or employment of any other right or remedy, or that each and every remedy shall be cumulative and in addition to every other remedy or that any delay or omission to exercise any right or remedy shall not impair any other right or remedy or constitute a waiver thereof, but the inclusion of such provisions does not render the New York/Federal Opinion Documents and the LLC Agreement otherwise unenforceable nor does such inclusion make the remedies afforded by the New York/Federal Opinion Documents and the LLC Agreement inadequate for the practical realization of the rights and benefits purported to be provided thereby;

(vii) the enforceability of any provisions of any of the New York/Federal Opinion Documents and the LLC Agreement providing for indemnification to the extent such indemnification violates the United States Securities Act of 1933, as amended, the United States Securities Exchange Act of 1934, as amended, or the securities laws of any state;

(viii) the enforceability of any provisions of any of the New York/Federal Opinion Documents that purport to waive or vary any provisions that are not capable of waiver or variation under Sections 1-


To the Addressees listed on Schedule I		-9-		April 5, 2011

102, 9-602, 9-603, 9-624, or other applicable provisions of the New York UCC;

(ix) the enforceability of any waiver of defenses which cannot as a matter of law be effectively waived;

(x) the enforceability in the federal courts of the United States of America of any forum selection clause in any of the New York/Federal Opinion Documents and the LLC Agreement, except to the extent any such clause in any New York/Federal Opinion Document is made enforceable by New York General Obligations Law Section 5-1402, as applied by a New York state court or federal court sitting in New York and applying New York forum selection principles. We express no opinion as to the enforceability of any provision of the New York/Federal Opinion Documents and the LLC Agreement insofar as it purports to confer subject matter jurisdiction on any U.S. District Court to adjudicate any controversy relating to the New York/Federal Opinion Documents and the LLC Agreement in any circumstances in which such court would not have subject matter jurisdiction. In addition, our opinion is qualified by reference to the discretion that a federal court may exercise in light of 28 U.S.C. Section 1404(a) and relevant case law;

(xi) the enforceability of any choice of law provisions in the New York/Federal Opinion Documents and the LLC Agreement, except to the extent any such choice of law provision in any New York/Federal Opinion Document is made enforceable by New York General Obligations Law Section 5-1401, as applied by a New York state court or federal court sitting in New York or Washington, D.C. and applying New York choice of law principles;

(xii) the enforceability, legality, validity or sufficiency of any provision of the New York/Federal Opinion Documents and the LLC Agreement to the extent that the lack of enforceability, legality, validity or sufficiency under the laws or public policy of any jurisdiction other than New York would cause the New York/Federal Opinion Documents and the LLC Agreement to be unenforceable, illegal, invalid or insufficient under the laws of New York;

(xiii) the enforceability of any provision of the New York/Federal Opinion Documents and Delaware Opinion Documents purporting to (a) impose restrictions on non-written modifications and waivers, (b) authorize or validate conclusive or discretionary


To the Addressees listed on Schedule I		-10-		April 5, 2011

determinations, (c) provide proxies, powers (other than powers of attorney that are expressly coupled with an interest) and trusts to any party, (d) provide for liquidated damages, default interest, late charges, monetary penalties, prepayment premiums, make-whole premiums or other economic remedies, in each case to the extent determined to be unreasonable and thus confiscatory or in the nature of a penalty, (e) provide for the marshaling of assets or set-offs, (f) provide for certain acts or matters to be null and void automatically or ab initio in each case to the extent determined to constitute penalties or otherwise to violate public policy or (g) other than as permitted under Section 9-603 of the New York UCC (to the extent applicable), to define commercially reasonable actions or procedures;

(xiv) the enforceability of any “severability” clause;

(xv) the enforceability of any provisions in any of the New York/Federal Opinion Documents and the LLC Agreement purporting to create a trust or fiduciary relationship; or

(xvi) the creation, validity, perfection or priority of any lien or security interest except as expressly set forth in paragraphs 7 through 11 above.

(f) We note for purposes of our opinion set forth in paragraph 6 above insofar as it pertains to the LLC Agreement that such document is, by its terms, to be governed by and construed in accordance with the laws of the state of Delaware. We have assumed with your consent for purposes of such opinion that the laws of the state of Delaware relevant thereto are identical in all respects to the laws of the state of New York relevant thereto. We further note that for purposes of our opinion set forth in paragraph 5 above insofar as it pertains to the Fee Letter Agreement listed as document number 15 on Part B of Schedule II to this opinion letter (the “Fee Letter”), that such document contains no provision as to the governing law thereof. We express no opinion as to the governing law of the Fee Letter. We have assumed with your consent for purposes of such opinion that the laws relevant thereto of whatever state the laws of which are held to govern the Fee Letter are identical in all respects to the laws of the state of New York relevant thereto. We further advise you that we express no opinion as to the enforceability of the Fee Letter insofar as it provides that Borrower agrees to amend and/or amend and restate the Fee Letter as requested by DOE and PNC Bank National Association.

(g) Our opinions set forth in paragraphs 7 through 11 above are subject to the following additional assumptions and qualifications:


To the Addressees listed on Schedule I		-11-		April 5, 2011

(i) we express no opinion as to Borrower’s and Member’s title or interest to or in any Collateral or the factual accuracy or completeness of the description thereof in the Opinion Documents or the Financing Statements;

(ii) we express no opinion as to the laws of any state or as to the perfection and effect of perfection or non-perfection of a security interest subject to the laws of any state, other than New York and, subject to the qualification set forth in paragraph (h) below, Delaware;

(iii) we express no opinion as to whether the granting of security interests in any Collateral consisting of a governmental permit, license or other authorization is prohibited or restricted by law;

(iv) we call your attention to the fact that Article 9 of the New York UCC requires the filing of continuation statements within the period of six months prior to the expiration of each five-year period from the date of the original filing of the Financing Statements in order to maintain the effectiveness of such filings;

(v) we call your attention to the fact that additional filings may be necessary if either of Borrower or Member changes its name, type of legal entity or its “location” for purposes of Section 9-307 of the New York UCC; and

(vi) we have assumed that goods included in the Collateral referred to in paragraphs 7 and 9 above are located in the state of New York and are not goods (1) that have or will become so related to real estate that an interest in them arises under real estate law or (2) that are covered by a certificate of title.

(h) We are not admitted to practice in the state of Delaware, and we have not retained or relied on any opinion or advice of Delaware counsel in rendering our opinions. Our opinion set forth in paragraph 10 above as to any matters governed by the Delaware UCC is based solely upon our review of the Delaware UCC as reported in the treatise Secured Transactions Guide published by CCH with a publication revision date of January 4, 2011, and reviewed as of the date hereof, without any review or consideration of any decisions or opinions of courts or other adjudicative bodies or governmental authorities of the state of Delaware, whether or not reported or summarized in the foregoing publication.

(i) We have assumed that Borrower and Member have, or with respect to after-acquired property will have, rights in the Collateral or the power to transfer rights in the


To the Addressees listed on Schedule I		-12-		April 5, 2011

Collateral within the meaning of 9-203(b)(2) of the New York UCC, and we express no opinion as to the nature or extent of any such party’s rights in any of the Collateral. We note that, with respect to any after-acquired property, the security interest will not attach or be perfected until Borrower or Member, as the case may be, acquires rights or the power to transfer rights in the Collateral.

(j) We express no opinion with respect to the perfection of any security interest in the Collateral constituting (i) money (except to the extent it constitutes “cash proceeds”, within the meaning and subject to the provisions of Section 9-306 of the New York UCC), (ii) any goods covered by a certificate of title statute, (iii) any farm products, as-extracted collateral, timber to be cut and the like, or accounts resulting from the sale thereof, (iv) any property subject to a statute, regulation or treaty of the United States whose requirements for a security interest’s obtaining priority over the rights of a lien creditor with respect to the property preempt Section 9-310(a) of the New York UCC, (v) any policy of insurance, (vi) any goods subject to a negotiable document of title, (vii) any commercial tort claims, (viii) any copyrights, patents, trademarks, service marks or other intellectual property, (ix) any fixtures, (x) any consumer goods, (xi) any commodity contract or (xii) any interest in a trust or decedent’s estate.

(k) Our opinion with respect to proceeds is subject to the limitations set forth in Section 9-315 of the New York UCC. We also call to your attention that, in the case of certain types of proceeds, other parties such as holders in due course, protected purchasers of securities, persons who obtain control over securities entitlements and buyers in the ordinary course of business may acquire a superior interest or may take their interest free of the security interest of the Secured Parties.

(l) We express no opinion with respect to any goods which are accessions to, or commingled or processed with, other goods to the extent that the security interest is limited by Section 9-335 or 9-336 of the New York UCC.

(m) For purposes of our opinion set forth in paragraph 10 above, we have assumed that Borrower and Member are and will remain “organized solely” (within the meaning of Section 9-102(a)(70) of the New York UCC) under the laws of the state of Delaware.

(n) For purposes of our opinion set forth in paragraph 8 above, we have assumed that (i) each Relevant Account is either a “securities account” (as defined in Section 8-501(a) of the New York UCC) or a “deposit account” (as defined in Section 9-102(29) of the NY UCC), (ii) that the Relevant Accounts will be established and maintained as set forth in the applicable Account Control Agreement, (iii) Financial Institution (as defined in the Account Control Agreement), in the ordinary course of its business, maintains securities accounts and deposit accounts for customers; and (iv) is acting in the capacity of a “securities intermediary” (as defined in Section 8-102(a)(14) of the New York UCC) with respect to any Relevant Account that is a securities account, and is acting in the capacity of a “bank” (as defined in Section 9-


To the Addressees listed on Schedule I		-13-		April 5, 2011

102(a)(8) of the New York UCC) with respect to any Relevant Account that is a deposit account. In rendering our opinion set forth in paragraph 8 above, we express no opinion with respect to the nature or extent of Financial Institution’s rights in, or title to, the securities or other financial assets underlying any “security entitlement” now or hereafter credited to the Relevant Accounts. We note that to the extent Financial Institution maintains any financial asset in a “clearing corporation” (as defined in Section 8-102(5) of the New York UCC), under Section 8-111 of the New York UCC, the rules of the clearing corporation may affect the rights of Financial Institution.

(o) We wish to point out that our opinion set forth in paragraph 11 above is limited to the New York UCC, and the laws of the jurisdiction of the issuer of the Pledged Securities and any applicable securities or other laws may affect, among other things, the exercise of remedies with respect to such security and the exercise of voting or other rights with respect to such security.

(p) We have assumed that “value” as defined in Section 1-201(44) of the New York UCC was given.

(q) We express no opinion as to the creation, validity, perfection or enforceability of any security interests (i) in any part of the Collateral in which a security interest would not be covered by Article 8 or 9 of the New York UCC, (ii) except as provided in Sections 9-109(d)(8) and 9-315 of the New York UCC, with respect to insurance proceeds payable by reason of loss or damage to Collateral, in any interest in or claim in or under policies of insurance, (iii) in Collateral that consists of personal property that is subject to laws or regulations restricting or otherwise governing the assignment of receivables from, or contracts with, federal, state or local governments or governmental authorities, including the Federal Assignment of Claims Act of 1940, as amended, or (iv) in Collateral that consists of rights in any contract, if and to the extent (1) such security interests therein, or the perfection or enforceability of such security interests, is, or is construed to be, in violation of any prohibition, limitation or restriction contained in such contract, and (2) such prohibition, limitation or restriction is not rendered, or deemed to be rendered, ineffective under Section 9-406, 9-407 or 9-408 of the New York UCC.

(r) In the case of property which becomes Collateral after the date hereof, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code limits the extent to which property acquired by a debtor after the commencement of a case under the United States Bankruptcy Code may be subject to a security interest arising from a security agreement entered into by the debtor before the commencement of such case.

(s) We call to your attention that events occurring subsequent to the date hereof may affect any security interest subject to the Delaware UCC or the New York UCC including factors of the type identified in: Section 9-315 with respect to proceeds; Section 9-507 with respect to changes in name; Section 9-316 with respect to changes in the location of the collateral


To the Addressees listed on Schedule I		-14-		April 5, 2011

and changes in the location of the debtor, in each case, to the extent the same was relevant to the initial perfection of the applicable security interest; Section 9-339 with respect to subordination agreements; Section 9-515 with respect to continuation statements; and Sections 9-320, 9-321, 9-330, 9-331 and 9-332 with respect to subsequent purchasers of the Collateral. In addition, actions taken by the Secured Parties (e.g., releasing or assigning the security interest, delivering possession of the collateral to a debtor or another person or voluntarily subordinating a security interest) may affect any security interest subject to the Delaware UCC or New York UCC.

(t) As noted above, we do not express any opinion with respect to the law of any jurisdiction other than the federal laws of the United States of America, the laws of the state of New York, the DLLCA, and, subject to the qualification in paragraph (i) above, the Delaware UCC. Without limiting the generality of the foregoing, we express no opinion concerning the laws of any other jurisdiction in which any Secured Party may be located or in which enforcement of any of the Opinion Documents may be sought that limits the amount of interest that may be legally charged or collected. In rendering our opinions we have not made any investigation of, and express no opinion concerning, laws, rules and regulations of (1) the state of New York relating to land use or construction and all laws, rules and regulations promulgated by political subdivisions of the state of New York or (2) the United States or the state of New York relating to (i) insurance, securities, banking, (ii) taxes, (iii) utilities, energy or power generation, transmission or sale or (iv) health, safety, the environment or environmental contamination. In addition, we express no opinion concerning Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any rules, regulations or orders thereunder. We are not admitted to practice in the state of Delaware, and we have not retained or relied on any opinion or advice of Delaware counsel in reaching our opinions. Our opinion as to any matters of Delaware law have been provided without any review or consideration of any decisions or opinions of courts or other adjudicative bodies or governmental authorities of the state of Delaware.

(u) When in this opinion we have used the phrase “to our knowledge”, “known to us” or similar phrases we have not made any independent investigation of the relevant facts for purposes of this opinion, but we have relied on the representations made in the Opinion Documents and in certificates of officers and other agents of Borrower and Member and the attorneys involved in the review of the Opinion Documents are not aware of any facts inconsistent therewith.


To the Addressees listed on Schedule I		-15-		April 5, 2011

Very truly yours,

SCHEDULE I

Addressees

U.S. Department of Energy, acting by and through the Secretary of Energy

PNC Bank, National Association, doing business as Midland Loan Services, a division of PNC Bank, National Association

NRG Solar Ivanpah LLC, a Delaware limited liability company

Danke ▇▇▇▇▇▇ Project LLC, a Delaware limited liability company

SCHEDULE II

All terms used herein and not defined or otherwise specified below or in the opinion letter to

which this Schedule is attached have the meanings assigned to them in the

Common Agreement (defined in item 1 below).

Part A – Opinion Documents

1.	Blocked Account Control Agreement among Borrower, PNC Bank, National Association, Collateral Agent and DOE, dated as of April 5, 2011.

2.	Common Agreement among Borrower, DOE and Administrative Agent, dated as of April 5, 2011.

3.	Equity Contributor Guaranty Agreement among Google, Borrower and Collateral Agent, dated as of April 5, 2011 (Supporting the Equity Commitment of Google Ivanpah under the Equity Funding Agreement).

4.	Equity Contributor Guaranty Agreement among Google, Borrower and Collateral Agent, dated as of April 5, 2011 (Supporting the Recapture Indemnity from Google Ivanpah under the Equity Funding Agreement).

5.	Equity Contributor Guaranty Agreement among Google, Borrower and Collateral Agent, dated as of April 5, 2011 (Supporting the ITC Compensation Payment of Google Ivanpah under the Equity Funding Agreement).

6.	Equity Contributor Guaranty Agreement among NRG, Borrower and Collateral Agent, dated as of April 5, 2011 (Supporting the Recapture Indemnity from NRG Solar under the Equity Funding Agreement).

7.	Equity Contributor Guaranty Agreement among NRG, Borrower and Collateral Agent, dated as of April 5, 2011 (Supporting the ITC Compensation Payment of NRG Solar under the Equity Funding Agreement).

8.	Equity Contributor Guaranty Agreement among Sponsor, Borrower and Collateral Agent, dated as of April 5, 2011 (Supporting the Recapture Indemnity from BrightSource Ivanpah under the Equity Funding Agreement).

9.	Equity Contributor Guaranty Agreement among Sponsor, Borrower and Collateral Agent, dated as of April 5, 2011 (Supporting the ITC Compensation Payment from BrightSource Ivanpah under the Equity Funding Agreement).

10.	Equity Funding Agreement among Borrower, Sponsor, Equity Contributor, Collateral Agent and DOE, dated as of April 5, 2011.

11.	Equity Pledge Agreement between Project Holding Company and Collateral Agent, dated as of April 5, 2011.

12.	Equity Termination Agreement among Sponsor, BrightSource Ivanpah, NRG Solar, Google Ivanpah, Project Companies, Asset Manager, Construction Manager and Operator, dated as of April 5, 2011.

13.	Escrow Agreement among Project Companies, BrightSource Ivanpah, Sponsor, NRG Solar, Google Ivanpah, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, Hercules, Administrative Agent, ▇▇▇▇▇▇▇ Title Guaranty Company and Chicago Title Insurance Company, dated as of April 5, 2011.

14.	Financing Statements attached as Exhibit A to the opinion letter to which this Schedule II is attached.

15.	Fee Letter Agreement by Borrower for the benefit of Collateral Agent, dated February 16, 2011.

16.	Future Advance Promissory Note entered into Borrower for the benefit of FFB and guaranteed by DOE, dated April 5, 2011 (Short Term Advance).

17.	Future Advance Promissory Note entered into by Borrower for the benefit of FFB and guaranteed by DOE, dated April 5, 2011 (Long Term Advance).

18.	Ivanpah III Equity Participation Agreement among Sponsor, BrightSource Ivanpah, NRG Solar and Google Ivanpah, dated as of April 5, 2011.

19.	Note Purchase Agreement among Borrower, FFB and DOE, dated April 5, 2011.

20.	Power of Attorney executed by Borrower for the benefit of Collateral Agent, dated as of April 5, 2011.

21.	Security Agreement between Borrower and Collateral Agent, dated as of April 5, 2011.

22.	Services and Indemnity Agreement among ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a natural person, Global Securitization Services, LLC, a Delaware limited liability company (“Global”), Borrower and Member, dated as of April 5, 2011.

23.	Sponsor Support Agreement among Borrower, the BrightSource Parties, Collateral Agent and DOE, dated as of April 5, 2011.

24.	Equity Contribution Guaranty Agreement among Sponsor, Borrower and Collateral Agent, dated as of April 5, 2011.

25.	Amended and Restated Master Services Contract among the Project Companies and EPC Contractor, dated as of July 23, 2010 (including items (a) through (i) below).