LOAN GUARANTEE AGREEMENT dated as of September 30, 2011 among HIGH PLAINS RANCH II, LLC, as Borrower, U.S. DEPARTMENT OF ENERGY, as Guarantor, and U.S. DEPARTMENT OF ENERGY, as Loan Servicer California Valley Solar Ranch Project San Luis Obispo...

Exhibit 10.8

EXECUTION COPY

LOAN GUARANTEE AGREEMENT

dated as of September 30, 2011

among

HIGH PLAINS RANCH II, LLC,
as Borrower,

U.S. DEPARTMENT OF ENERGY,
as Guarantor,

and

U.S. DEPARTMENT OF ENERGY,
as Loan Servicer

California Valley Solar Ranch Project
San ▇▇▇▇ Obispo County, California

TABLE OF CONTENTS

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Exhibits to the Loan Guarantee Agreement

Schedules to the Loan Guarantee Agreement

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LOAN GUARANTEE AGREEMENT

This LOAN GUARANTEE AGREEMENT, dated as of September 30, 2011, is by and among (i) High Plains Ranch II, LLC, a limited liability company organized and existing under the laws of the State of Delaware, as borrower (the “Borrower”); (ii) the U.S. DEPARTMENT OF ENERGY, acting by and through the Secretary of Energy (or appropriate authorized representative thereof), for itself as guarantor of the Advances (as defined herein) (in such capacity, “DOE” or the “Guarantor”); and (iii) the U.S. DEPARTMENT OF ENERGY, acting by and through the Secretary of Energy (or appropriate authorized representative thereof), as the loan servicer (in such capacity, the “Loan Servicer”).

WHEREAS, SunPower Corporation, Systems, a Delaware corporation (“SunPower”), has, through the Borrower, developed the Project pursuant to that certain Development Services Agreement;

WHEREAS, the Sponsor and SunPower have entered into that certain Purchase and Sale Agreement pursuant to which SunPower agreed to sell to the Sponsor 100% of the Equity Interests in the Borrower;

WHEREAS, HPR III has merged into the Borrower, pursuant to those certain Merger Documents, with the Borrower as a surviving entity;

WHEREAS, the Sponsor assigned its rights and obligations under the Purchase and Sale Agreement to NRG Solar ▇▇▇▇ Holdings LLC (the “Holding Company”);

WHEREAS, immediately after such assignment, the Holding Company purchased 100% of the Equity Interests of the Borrower and became the direct owner of 100% of the Equity Interests of the Borrower;

WHEREAS, NRG Solar Sunrise LLC directly owns 100% of the Equity Interests of the Holding Company; the Sponsor directly owns 100% of the Equity Interests of NRG Solar Sunrise LLC; NRG Repowering Holdings LLC (the “Intermediate Parent Company”), directly owns 100% of the Equity Interests of the Sponsor, and the Ultimate Parent directly owns 100% of the Equity Interests of the Intermediate Parent Company;

WHEREAS, subject to the terms and conditions of the Equity Funding Agreement, the Sponsor has agreed to make, or procure the making of, Equity Contributions to the Borrower;

WHEREAS, the Borrower, in furtherance of its obligations with respect to the Project has requested that:

(i)                                     FFB (a) make Term Loan Advances and Cash Grant Bridge Loan Advances pursuant to the FFB Documents in the aggregate principal amount not exceeding the

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Guaranteed Term Loan Amount and Guaranteed Cash Grant Bridge Loan Amount, respectively, and (b) capitalize interest on the outstanding amount of the Advances as contemplated by Section 7(b) of the applicable FFB Promissory Note in an aggregate amount not to exceed the maximum capitalized interest amount for the Term Loan Advances or the Cash Grant Bridge Loan Advances, respectively; and

(ii)                                  DOE guarantee the repayment of the Guaranteed Loans by the Borrower to FFB pursuant to the DOE Guarantee; and

WHEREAS, the execution of this Loan Guarantee Agreement is a condition precedent to the obligations of DOE and FFB under this Loan Guarantee Agreement and the FFB Documents, as applicable.

NOW, THEREFORE, in consideration of the foregoing and other good and valid consideration, the receipt and adequacy of which are hereby expressly acknowledged, the parties hereby agree as follows:

ARTICLE 1
DEFINITIONS; RULES OF INTERPRETATION

SECTION 1.1.               Definitions.

Except as otherwise expressly provided herein, capitalized terms used in this Loan Guarantee Agreement and its exhibits and schedules have the meanings given in Exhibit A.

SECTION 1.2.               Rules of Interpretation.

Except as otherwise expressly provided herein, the rules of interpretation set forth in Exhibit B shall apply to this Loan Guarantee Agreement.

SECTION 1.3.               Conflict with FFB Documents.

Except as otherwise expressly provided herein, in the case of any conflict between the terms of this Loan Guarantee Agreement and the terms of any FFB Document, the terms of this Loan Guarantee Agreement, as between the Borrower and DOE, shall control.

ARTICLE 2
FUNDING

SECTION 2.1.               Availability of Advances.

2.1.1.  Availability. Subject to the satisfaction (or waiver by DOE or FFB, as applicable, in writing) of each applicable condition precedent set forth in this Loan Guarantee Agreement and in the FFB Documents, Term Loan Advances shall be made during the Term Loan Availability Period and each of the Cash Grant Bridge Loan Advances shall be made during their respective Cash Grant Bridge Loan Availability Periods.

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2.1.2.  FFB Commitment Reductions and Cancellations. The Borrower may, on not less than ten (10) Business Days prior written notice to DOE and upon the satisfaction of any consent requirement or other applicable provisions of the FFB Documents, permanently reduce the unutilized portions of the FFB Commitment, in whole or in part, but only if:

(a)                                      each partial reduction is in an amount permitted under the FFB Documents;

(b)                                      DOE is satisfied, in its sole discretion, that such cancellation or reduction will not impair achievement of Project Completion on or prior to the Guaranteed Project Completion Date;

(c)                                       after taking into account the proposed reduction, Total Funding Available equals or exceeds the amount of Total Project Costs projected by the Borrower and agreed by DOE as of the date of such reduction; and

(d)                                      upon such cancellation or reduction, the Borrower pays all fees, Periodic Expenses and other amounts then due with respect to such cancellation or reduction under the FFB Documents.

Once reduced or canceled, the FFB Commitment shall not be increased or reinstated.

2.1.3.  DOE Commitment Reductions and Cancellations. If the first Advance has not occurred by the Cutoff Date (or such later date as agreed by DOE), DOE shall be entitled to cancel the DOE Guarantee and terminate this Loan Guarantee Agreement upon written notice to the Borrower. Once cancelled or terminated, the DOE Guarantee and this Loan Guarantee Agreement, as the case may be, may not be reinstated without the written consent of DOE.

SECTION 2.2.               Mechanics for Requesting Advances.

2.2.1. Master Advance Notice.

(a)                                      The Borrower may request an Advance of either Guaranteed Loan by delivering to DOE and the Loan Servicer, with a copy to the Independent Engineer, within three (3) months following any Quarterly Approval Date or the First Advance Date but not less than ten (10) Business Days prior to the Requested Advance Date, a completed Master Advance Notice for such Advance.

(b)                                      No more than once per calendar month the Borrower may deliver a Master Advance Notice requesting (x) a Term Loan Advance during the Term Loan Availability Period, (y) a Cash Grant Bridge Loan Advance during the applicable Cash Grant Bridge Loan Availability Period or (z) contemporaneously, both a Term Loan Advance and one or more Cash Grant Bridge Loan Advances during the Term Loan Availability Period and applicable Cash Grant Bridge Loan Availability Period, respectively; provided that in any three consecutive calendar month period during the Term Loan Availability Period the Borrower may deliver one (1) additional Master Advance Notice requesting Advances as described in the foregoing clauses (x) through (z).

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(c)                                  Each Master Advance Notice shall be in the form set forth in Exhibit G and otherwise in form and substance acceptable to DOE.

SECTION 2.3.               Mechanics for Funding Advances.

2.3.1.  Satisfaction of Conditions Precedent.

(a)                                 Promptly after receipt of each Master Advance Notice, the Loan Servicer shall review such Master Advance Notice and other applicable documentation submitted to the Loan Servicer pursuant to this Agreement to determine whether the requirements of Section 4.4 (and in the case of the first Advance, Section 4.2) have been satisfied.

(b)                                 If the Loan Servicer determines that (i) the Master Advance Notice has been satisfactorily completed, (ii) all applicable conditions precedent set forth in Section 4.4 (and, in the case of the first Advance, Section 4.2) for the requested Advance have been satisfied (or waived) and (iii) the FFB Advance Request and all other certificates and documentation required under the FFB Documents in respect of the requested Advance have been provided and are satisfactory (or have been waived), then DOE shall sign and forward the FFB Advance Request Approval Notice attached to the FFB Advance Request to FFB, with a copy to the Borrower, the Collateral Agent and the Independent Engineer.

(c)                                  If the Loan Servicer disapproves any Master Advance Notice, the Loan Servicer shall promptly notify the Borrower of such documentation, identifying all deficiencies with reasonable specificity and any necessary change to the Master Advance Notice, FFB Advance Request and other certificates and documentation required under this Agreement and the FFB Documents in respect of the requested Advance.

2.3.2.  Notices of Cancellation.

(a)                                 Issuance. At any time after the Loan Servicer forwards an FFB Advance Request Approval Notice and before FFB makes the Advance referred to therein, the Loan Servicer may deliver a notice of withdrawal or cancellation of the FFB Advance Request Approval Notice (a “Notice of Cancellation”) to FFB pursuant to Section 7.4(d) of the FFB Note Purchase Agreement or otherwise pursuant to the FFB Documents if the Loan Servicer determines that the applicable conditions in Section 4.4 (and, in the case of the first Advance, Section 4.2) for such Advance are not met or, having been met, are no longer met.

(b)                                 Costs. The Borrower shall pay all expenses incurred by DOE, FFB, the Loan Servicer or the Collateral Agent in respect of any Advance that is not made due to the issuance of a Notice of Cancellation.

2.3.3.  No Liability. Without limiting the generality of Section 9.6 hereunder, none of DOE, the Loan Servicer or the Collateral Agent has any liability to the Borrower or any Borrower Affiliate or to any other Person arising from the issuance of, or failure to issue, any FFB Advance Request Approval Notice, Notice of Cancellation, or any other notice contemplated by this Section 2.3.

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SECTION 2.4.               Advance Requirements under the FFB Documents.

The Borrower shall comply with all disbursement requirements set forth in the FFB Documents. Unless otherwise specified in the FFB Documents, all determinations in relation to Advances under this Loan Guarantee Agreement and the FFB Documents (except as expressly reserved for FFB in the FFB Documents) shall be made by the Loan Servicer.

SECTION 2.5.               No Approval of Work.

The approval of any Advance under the Financing Documents shall not be deemed to be an approval or acceptance by the Loan Servicer of any work, labor, supplies, materials or equipment furnished or supplied with respect to the Project.

ARTICLE 3
PAYMENTS; PREPAYMENTS

SECTION 3.1.               Place and Manner of Payments.

3.1.1.  Repayment of Guaranteed Loan. The Borrower shall repay each Guaranteed Loan, including all fees and interest (whether taking the form of a Capitalized Interest Amount or otherwise) accrued thereon, in accordance with the FFB Documents. All payments due under the FFB Documents shall be made by the Borrower pursuant to the terms of the FFB Documents and the Accounts Agreement. Each payment shall be applied by the Collateral Agent in accordance with the Accounts Agreement; provided, however, that, notwithstanding any instructions to the contrary in the applicable FFB Promissory Note, for purposes of administering payments to FFB, the Borrower shall remit such payments directly to an account designated by the Loan Servicer for payment to FFB. The Borrower may not reborrow any amount of the Guaranteed Loan (whether in the form of an Advance or Capitalized Interest Amount) that is repaid.

3.1.2.  Net of Tax, Etc.

(a)                                 Tax. Any and all payments to any Secured Party by the Borrower hereunder or under any other Financing Document shall be made free and clear of, and without deduction for, any and all Taxes, excluding (i) Taxes imposed on or measured by the net income (however denominated) of such Secured Party by any jurisdiction or any political subdivision or taxing authority thereof or therein solely as a result of a present or former connection between such Secured Party and such jurisdiction or political subdivision (other than any connection arising as a result of the transactions contemplated by the Financing Documents) and (ii) any withholding Taxes or other Tax based on gross income imposed by the United States of America except any such Taxes arising as a result of a Change of Law (all such non-excluded Taxes, “Covered Taxes”). If the Borrower is required by law to withhold or deduct any Covered Taxes from or in respect of any sum payable hereunder or under any other Financing Document to any Secured Party, (A) the sum payable shall be increased as may be necessary so that after making all such required deductions (including deductions applicable to additional sums payable under this Section 3.1.2), such Secured Party receives an amount equal to the sum it would have received had no such deductions been made, (B) the Borrower shall make such deductions and (C) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with all Applicable Laws; provided, however, that the Borrower shall not be

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required to increase any such amounts payable to any Secured Party with respect to any Covered Taxes to the extent such Covered Taxes (x) are withholding Taxes imposed as a result of any Secured Party voluntarily designating a different lending office on or after the date hereof, (y) would not have been imposed but for a failure by the Secured Party, by any direct or indirect owner of the Secured Party, or by any financial institution through which any payment is made to such Secured Party or to any of its direct or indirect owners, to comply with the applicable requirements of Sections 1471 through 1474 of the Internal Revenue Code and any published administrative or similar guidance implementing such Sections, or (z) are withholding Taxes imposed on amounts payable to such Secured Party at the time such Secured Party becomes a party to this Loan Guarantee Agreement, except to the extent that such Secured Party’s assignor (if any) was entitled (or would have been so entitled if such assignor were a domestic corporation within the meaning of Section 7701(a)(30) of the Internal Revenue Code), at the time of the assignment, to receive additional amounts from the Borrower with respect to such Covered Taxes pursuant to this Section 3.1.2(a). If the Borrower makes any payment with respect to Covered Taxes under this Section 3.1.2(a) to or for the benefit of any Secured Party and if such Secured Party claims any credit or deduction for such Covered Taxes against any other Taxes payable by such Secured Party that are not Covered Taxes, then such Secured Party shall pay to the Borrower an amount equal to the amount the Secured Party determines, in good faith and absent manifest error, is the amount by which such other Taxes are actually reduced; provided that the aggregate amount payable by such Secured Party pursuant to this sentence shall not exceed the aggregate amount previously paid by the Borrower with respect to such Covered Taxes, and no such amount shall be payable while a Potential Event of Default or Event of Default is continuing.

(b)                                 Indemnity. The Borrower hereby indemnifies each Secured Party for the full amount of Covered Taxes (including any Taxes imposed by any jurisdiction on amounts payable under this Section 3.1.2) paid by any Secured Party, whether or not such Covered Taxes were correctly or legally asserted. Each Secured Party shall give notice to the Borrower of the assertion of any claim against such Secured Party relating to such Secured Party’s Covered Taxes as promptly as is practicable after being notified of such assertion; provided that any failure to notify the Borrower promptly of such assertion shall not relieve the Borrower of its obligation under this Section 3.1.2, except to the extent the Borrower is actually and materially prejudiced by such failure with respect to any such notice given by a Secured Party and only if such notice was given by a Secured Party more than sixty (60) days after such Secured Party has notice or knowledge of such claim. Payments by the Borrower pursuant to this indemnification shall be made within thirty (30) Business Days after the date such Secured Party makes written demand therefor, which demand shall be accompanied by a certificate describing in reasonable detail the basis thereof. Each Secured Party agrees to repay to the Borrower any refund (including that portion of any interest that was included as part of such refund with respect to Covered Taxes paid by the Borrower pursuant to this Section 3.1.2(b) for the period following such Borrower payment) received by such Secured Party for Covered Taxes that were paid by the Borrower pursuant to this Section 3.1.2(b) and to provide reasonable assistance to the Borrower (at the expense of the Borrower) to contest any such Covered Taxes that such Secured Party or the Borrower reasonably believes not to have been lawfully or properly assessed. For the avoidance of doubt, unless an Event of Default or a potential Event of Default has occurred and is continuing at the time the Borrower would (if this Section 3.1.2(b) were applicable, without regard to this final sentence thereof) be required to make a payment under this Section

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3.1.2(b), the indemnification obligation contained in this Section 3.1.2(b) shall not extend to Taxes imposed for which the Secured Party with respect to whom the obligation would otherwise exist would not have been eligible to receive payment of additional amounts under Section 3.1.2(a), or to the extent that such Secured Party received additional amounts with respect to such payments.

(c)                                       Notice. Within ten (10) Business Days after the date of any payment of Covered Taxes by the Borrower, the Borrower shall furnish to the Loan Servicer and each affected Secured Party the original or a certified copy of a receipt evidencing such payment or, if the relevant tax authority has not provided the Borrower with such a receipt, shall furnish such other evidence of such payment as may be available to the Borrower (in which case the Borrower shall promptly request a receipt from the relevant tax authority and so furnish the original or a certified copy thereof promptly upon receipt thereof). The Borrower shall compensate each Secured Party for all reasonable losses and expenses sustained by such Secured Party as a result of any failure by the Borrower to so furnish such copy of such evidence or, if available, such receipt.

(d)                                      Survival of Obligations. The obligations of the Borrower under this Section 3.1.2 shall survive the termination of this Loan Guarantee Agreement and the repayment of the Secured Obligations.

(e)                                       Documentation. Each Secured Party shall deliver to each of the Borrower and the Collateral Agent either (A) if such Secured Party is a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code (a “U.S. Lender”), two copies of a U.S. Internal Revenue Service Form W-9 or any successor form, properly completed and duly executed by such U.S. Lender, certifying such U.S. Lender’s complete exemption from “backup withholding” Tax on all payments made by the Borrower under this Agreement and the other Financing Documents; or (B) if such Secured Party is not a U.S. Lender, two copies of either U.S. Internal Revenue Service Form W-8BEN, Form W-8IMY or Form W-8ECI, as appropriate. Such forms shall be delivered by each Secured Party on or before the date it becomes a party to this Loan Guarantee Agreement (or, in the case of any participant, on or before the date such participant purchases the related participation).

(i)                           Each Secured Party shall deliver the appropriate form referred to in this Section 3.1.2(e) promptly upon the obsolescence or invalidity of any form previously delivered by such Secured Party, and shall deliver extensions or renewals thereof as may reasonably be requested by the Borrower or the Collateral Agent.

(ii)                        Each Secured Party shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purpose).

(iii)                     Notwithstanding any other provision of this paragraph, a Secured Party shall not be required to deliver any form pursuant to this Section 3.1.2(e) that such Person is not legally able to deliver.

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(f)                                        Treaty Exemption or Reduction. A Secured Party that is entitled to an exemption from or reduction of non-U.S. withholding Tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Loan Guarantee Agreement shall deliver to the Borrower (with a copy to the Collateral Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrower, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate, provided that such Secured Party is legally entitled to complete, execute and deliver such documentation and in such Secured Party’s judgment such completion, execution or submission would not materially prejudice the legal position of such Secured Party.

SECTION 3.2.               Interest Provisions Relating to All Advances.

3.2.1.  Interest Account and Interest Computations. Interest shall accrue on the unpaid principal amount of each Advance and any related Capitalized Interest Amount from (x) in the case of the principal amount of any Advance, the date such Advance is disbursed or deemed disbursed pursuant to the FFB Documents and (y) in the case of any related Capitalized Interest Amount, the Payment Date on which such Capitalized Interest Amount was capitalized in accordance with Section 7(b) of the applicable FFB Promissory Note, to the date such Advance and any related Capitalized Interest Amount is paid in full, at a rate per annum specified in the FFB Documents. The Borrower hereby authorizes the Loan Servicer to record in an account or accounts maintained by the Loan Servicer on behalf of DOE (a) the interest rates applicable to all Term Loan Advances and Cash Grant Bridge Loan Advances and related Capitalized Interest Amounts, (b) each Capitalized Interest Amount in respect of any Advance, (c) the date and amount of each payment on the applicable Guaranteed Loan (including whether such payment is a payment in respect of the outstanding principal amount of an Advance, a payment in respect of any Capitalized Interest Amounts or a payment of cash interest) outstanding and (d) such other information as DOE or the Loan Servicer may determine is necessary for the computation of interest payable by the Borrower hereunder. All computations of interest shall be made as set forth in the relevant FFB Documents.

3.2.2.  Interest Payment Dates.

(a)                                           Interest shall accrue from the date of the first Advance and be payable in cash, in arrears on each Payment Date, commencing on the First Payment Date or earlier, as set forth in the FFB Promissory Notes. Interest will be capitalized as set forth in the FFB Promissory Notes. After that, interest shall be due and payable on each Payment Date.

(b)                                           Subject to the terms of the FFB Documents, the Borrower shall pay accrued interest on the outstanding principal amount of each Advance and any related Capitalized Interest Amounts on each Payment Date, on prepayment (to the extent thereof) and at maturity (whether by acceleration or otherwise).

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SECTION 3.3.               FFB Note Transfer.

Upon any FFB Note Transfer or receipt by the Borrower, the Loan Servicer or DOE of notice of FFB’s intention to make any FFB Note Transfer in accordance with the FFB Note Purchase Agreement, the Borrower, DOE and the Loan Servicer shall cooperate with the transferee of the applicable FFB Promissory Note to amend this Loan Guarantee Agreement and any other Financing Documents to incorporate customary terms and conditions reasonably satisfactory to such transferee with respect to:

(a)                                      any Change of Law that makes it unlawful or impossible for any transferee Lender to make, hold or maintain the applicable Guaranteed Loan;

(b)                                      any Change of Law that subjects such transferee Lender to any tax, duty or other charge with respect to the applicable Guaranteed Loan; and

(c)                                       such transferee Lender designating an alternative lending office for its Guaranteed Loan to mitigate costs or to avoid any circumstances that might make it unlawful or impossible for such transferee Lender to maintain a Guaranteed Loan.

SECTION 3.4.               Prepayments.

3.4.1.  Terms of all Prepayments.

(a)                                      With respect to any prepayment of all or any portion of either Guaranteed Loan, whether such prepayment is voluntary or mandatory and including a prepayment upon acceleration, the Borrower shall comply with all applicable terms and provisions of the FFB Documents.

(b)                                      All prepayments of the Guaranteed Loans shall be applied in accordance with the FFB Documents.

(c)                                       The Borrower may not reborrow any amount of either Guaranteed Loan (whether in the form of an Advance or Capitalized Interest Amount) that is prepaid.

(d)                                      At the Borrower’s election, on one or more dates selected by the Borrower, the Borrower may prepay in full or in part one or more Advances selected by the Borrower, and any such partial prepayment shall be applied to installments of principal in the inverse order of maturity.

3.4.2.  Voluntary Prepayments.

(a)                                      Prior to the end of the Term Loan Availability Period and without the consent of DOE, except as required by Section 3.4.3, the Borrower may not prepay the Guaranteed Term Loan unless the Borrower simultaneously cancels the outstanding FFB Term Loan Commitment and fully repays the Guaranteed Term Loan. After the end of the Term Loan Availability Period, the Borrower may prepay the Guaranteed Term Loan in part or in full in accordance with the FFB Documents upon at least five (5) Business Days prior written notice submitted by the Borrower to DOE (with a copy to the Collateral Agent). Voluntary prepayments of the Guaranteed Term Loan may be subject to make whole premiums or discounts as are set forth in the FFB Documents.

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(b)                                      Prior to the end of the applicable Cash Grant Bridge Loan Availability Period and without the consent of DOE, except as required by Section 3.4.3, the Borrower may not prepay any Guaranteed Cash Grant Bridge Loan unless the Borrower simultaneously cancels the applicable outstanding FFB Cash Grant Bridge Loan Commitment and fully repays such Guaranteed Cash Grant Bridge Loan. After the end of the applicable Cash Grant Bridge Loan Availability Period, the Borrower may prepay such Guaranteed Cash Grant Bridge Loan in part or in full in accordance with the FFB Documents upon at least five (5) Business Days prior written notice submitted by the Borrower to DOE (with a copy to the Collateral Agent). Voluntary prepayments of each Guaranteed Cash Grant Bridge Loan may be subject to make whole premiums or discounts as are set forth in the FFB Documents.

3.4.3.  Mandatory Prepayments. The Borrower shall be required to make or cause to be made, as applicable, mandatory prepayments of the applicable Guaranteed Loan on the dates and in the amounts set forth in this Section 3.4.3:

(a)                                      of the Guaranteed Term Loan, upon the receipt by the Borrower of any Performance Liquidated Damages (as that term is defined in the EPC Contract) or amounts paid to the Borrower pursuant to section 11.09(a) of the Purchase and Sale Agreement, in each case, that are not, with DOE’s consent, used to pay to construct, repair or restore the Project, to be applied as a Full Advance Prepayment;

(b)                                      of the Guaranteed Term Loan, upon the receipt by the Borrower of Loss Proceeds, any such amount paid that exceeds the amount of such Loss Proceeds used or to be used to repair, replace or rebuild the Project in accordance with Section 6.22, to be applied at DOE’s election, as (i) a Full Advance Prepayment or (ii) to the extent the remaining useful life of the Project will, according to a written determination of the Independent Engineer, following the use of such Loss Proceeds to repair, replace or rebuild the Project, end prior to the Term Loan Maturity Date, a prepayment of Advances in inverse order of maturity;

(c)                                       of the Guaranteed Term Loan, in an amount equal to all cash in the Restricted Payment Account to the extent any cash has been on deposit in the Restricted Payment Account, beginning from the Project Completion Date, for eight (8) consecutive calendar quarters due to the failure of the Borrower to satisfy the conditions set forth in Section 7.10(a), to be applied as a Full Advance Prepayment; provided, however, that, if DOE’s prior written consent has been obtained, the money on deposit in the Restricted Payment Account may be reinvested into the Project as directed by the Borrower;

(d)                                      of the Guaranteed Term Loan, upon any sale (which must be a Permitted Disposition) of any assets no longer used or useful in the operation of the Project Facility, in an amount equal to the proceeds of such sale, net of the prior, concurrent or prospective application of such proceeds to the acquisition of replacement assets, if such amount exceeds (or will exceed) $50,000, to be applied as a prepayment of Advances in inverse order of maturity; provided that, if such proceeds are not applied in accordance with clause (d) of the definition of “Permitted Disposition” then, to the extent such proceeds exceeded $50,000, an amount equal to 100% of such proceeds shall be applied to the Guaranteed Term Loan, as a prepayment of Advances in inverse order of maturity;

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(e)           of the Guaranteed Term Loan, if (i) the HPR II Delivery Term for Phase 3 commences before October 31, 2013, or (ii) the HPR III Delivery Term commences before October 31, 2012, in each case, on each Monthly Transfer Date, a prepayment from cash available at payment priority Sixth in Section 4.03(b)(ii) of the Accounts Agreement, to be applied as a prepayment of Advances in inverse order of maturity until the projected date of full amortization of the Guaranteed Loans is not later than the date that is (x) 23 years after commencement of the HPR II Delivery Term for Phase 3 or (y) 24 years after commencement of the HPR III Delivery Term;

(f)            of the Guaranteed Term Loan, in an amount equal to Excess Major Project Document Breach Damages or Excess Major Project Document Termination Damages, immediately upon the determination that any such damages exist, to be applied as DOE shall direct; or

(g)           of a Guaranteed Cash Grant Bridge Loan, one (1) Business Day following the receipt of the Cash Grant for a Phase associated with such Guaranteed Cash Grant Bridge Loan, the Borrower shall, if immediate prepayment of the applicable Guaranteed Cash Grant Bridge Loan would:

(i)                   result in no prepayment premium, first, to prepay such Guaranteed Cash Grant Bridge Loan in full together with all fees and interest accrued thereon, and second, to fund the Cash Grant Proceeds Account; or

(ii)                  result in a prepayment premium, deposit such proceeds into the Cash Grant Proceeds Account and, at any time on or prior to the applicable Guaranteed Cash Grant Bridge Loan Maturity Date, direct disbursement of all or any portion of the funds in the Cash Grant Proceeds Account to satisfy the applicable Guaranteed Cash Grant Bridge Loan until it has been, together with all fees and interest accrued thereon, fully repaid.

If on the date of receipt of the Cash Grant for a Phase (or, with respect to the Cash Grants for Phase 2 or Phase 4, the later of the receipt of (x) the Cash Grant for Phase 2 and (y) the Cash Grant for Phase 4) the amount of Cash Grant proceeds is, together with amounts on deposit in the Cash Grant Proceeds Account and the Restricted Payment Account, insufficient to repay the applicable Guaranteed Cash Grant Bridge Loan, the DOE shall direct the Collateral Agent to make demand on the NRG Cash Grant Shortfall Security and/or draw on the SunPower Cash Grant Shortfall Security in (A) amounts necessary to ensure there are sufficient funds for repayment of the applicable Guaranteed Cash Grant Bridge Loan and (B) proportions determined by DOE in its sole discretion, and the proceeds of such draws and demands will be applied consistent with this Section 3.4.3(g). Notwithstanding anything in this clause (g) to the contrary, each Guaranteed Cash Grant Bridge Loan becomes due and payable at its applicable Guaranteed Cash Grant Bridge Loan Maturity Date; and

(h)           of the Guaranteed Term Loan, in the event that, as of the Project Completion Date, the Projected Debt Service Coverage Ratio is less than the Minimum DSCR for any Payment Period, prepayment from cash available at the payment priority specified in section 4.03(b)(ii) of the Accounts Agreement until the Projected Debt Service Coverage Ratio for each Payment

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Period is equal to or greater than the Minimum DSCR, to be applied as a Full Advance Prepayment; provided that any prepayment under this Section 3.4.3(h) will not exceed the DSCR Restoration Cap Amount; and

(i)            of the Guaranteed Term Loan, in the event that the Borrower receives Interest Rate Swaption Proceeds after the Project Completion Date and all Project Costs incurred during the Construction Period have been paid in full, in an amount equal to (A) 100% of such Interest Rate Swaption Proceeds multiplied by (B) the percentage equal to (x) the Guaranteed Loan component of the Debt to Equity Ratio divided by (y) the sum of the Guaranteed Loan component of the Debt to Equity Ratio and the Equity Contribution component of the Debt to Equity Ratio.

For the avoidance of doubt, nothing in this Section 3.4 shall be interpreted to require the Borrower to make a prepayment without giving adequate notice to FFB, if any is required under the FFB Documents.

SECTION 3.5.     Payment of Guaranteed Loan Fees.

(a)             The Borrower shall pay to DOE, not later than the Guarantee Agreement Date and before the issuance of the DOE Guarantee, a loan facility fee in an aggregate amount equal to $1,625,000 plus 0.50% of the Guaranteed Loan Amount. DOE acknowledges that it received a portion of such facility fee in the amount of $1,512,101.50 on April 15, 2011.

(b)             The Borrower shall pay annually in advance to DOE, for its own account, the DOE Maintenance Fee. The Borrower shall pay the initial DOE Maintenance Fee not later than the Guarantee Agreement Date (but in any event before the issuance of the DOE Guarantee) and each subsequent DOE Maintenance Fee on January 1 of each calendar year after the Guarantee Agreement Date (provided that the initial DOE Maintenance Fee shall be pro-rated on a daily basis for the number of days starting with the Guarantee Agreement Date and ending on December 31, 2011).

(c)             The Borrower shall pay to FFB the fees payable to FFB from time to time in accordance with the FFB Documents.

(d)             The Borrower shall pay to DOE a DOE Modification Fee, if any, in the amount(s) and at the time(s) reasonably determined by DOE.

(e)             All Guaranteed Loan Fees and Periodic Expenses shall be paid on the dates due, in immediately available funds in Dollars, to DOE or FFB, as applicable. Once paid, the Guaranteed Loan Fees and Periodic Expenses shall not be refundable under any circumstances.

(f)             All amounts payable to DOE under this Section 3.5 shall be paid by wire transfer to the following account, or to such other account as may be specified by DOE from time to time.

U.S. Treasury Department

ABA No. ▇▇▇▇-▇▇▇▇-▇ TREASNYC/CTR/BNF = D89000001

OBI = LGPO Loan No. 1229

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SECTION 3.6.     Evidence of Debt.

(a)           The Loan Servicer shall maintain, in accordance with its usual practice, internal records evidencing the amounts from time to time (i) advanced by FFB under the FFB Note Purchase Agreement, (ii) paid by DOE with respect to the DOE Guarantee and (iii) principal and interest amounts paid by the Borrower with respect to the foregoing.

(b)           In the event of any conflict among the records of the Loan Servicer and FFB, the records of FFB shall prevail.

ARTICLE 4
CONDITIONS PRECEDENT

SECTION 4.1.     Conditions Precedent to Guarantee Agreement Date.

The obligation of DOE to issue the DOE Guarantee to FFB is subject to the prior satisfaction (or waiver), as determined by DOE, in its sole discretion, of each of the following conditions precedent (and of any deliverable, as to its form and substance) as of the Guarantee Agreement Date (or such other date specified in this Section 4.1).

4.1.1.  Transaction Documents.

(a)         Financing Documents. DOE has received fully executed originals in sufficient counterparts for each party to each of the following documents, each of which is in full force and effect and without amendment (other than those amendments previously disclosed by the Borrower and consented to by DOE), as certified by the Borrower (or, in the case of Section 4.1.1(a)(iii), certified by the relevant Borrower Entity):

(i)                    Loan Guarantee Agreement. This Loan Guarantee Agreement.

(ii)                   FFB Documents. The FFB Documents.

(iii)                  Equity Documents. Each of the following documents and all other contracts and documents required in connection with the Equity Commitments (the “Equity Documents”):

(A)                               the Equity Funding Agreement;

(B)          the Equity Letter(s) of Credit;

(C)          the Cash Collateral Security Agreement;

(D)          the Cash Collateral Accounts Control Agreement;

(E)                                if required by DOE in a writing delivered to Borrower prior to the Guarantee Agreement Date, an agreement between the Sponsor and DOE providing for various matters, such as management and support obligations for the Borrower

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and continuing ownership of the Borrower’s equity and control of management of the Borrower;

(F)                                 if required by DOE in a writing delivered to Borrower prior to the Guarantee Agreement Date, an agreement between SunPower and DOE providing for various matters, including support obligations for warranties and other obligations under the EPC Contract and other Project Documents; and

(iv)                  any other documents, certificates or instruments required to be delivered in connection with the foregoing.

(b)           Security Documents.           Each of the following documents (the “Security Documents”):

(i)                                                                  the Deed of Trust;

(ii)                                                               the Security Agreement;

(iii)                                                            the Accounts Agreement;

(iv)                                                           the Accounts Control Agreement;

(v)                                                              the Equity Pledge Agreement;

(vi)                                                           the Direct Agreements;

(vii)                                                        the Cash Collateral Security Agreement;

(viii)                                                     the Cash Collateral Accounts Control Agreement;

(ix)                                                           the HPR I Assignment;

(x)                                                              any other contract or document entered into on or prior to the Guarantee Agreement Date that provides any Lien, charge or security interest to the Secured Parties (or any of them); and

(xi)                                                           any other documents, certificates or instruments required to be delivered in connection with the foregoing.

(c)           Project Documents. DOE has received fully executed copies of each of the following documents (together with a fully executed consent to assignment related to each of the following documents), each certified by the Borrower that (x) such copy is a true, correct and complete copy of such document (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters), (y) such document has been duly executed and delivered by the parties thereto and is in full force and effect and (z) to the

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Borrower’s Knowledge, no party to such document is or, but for the passage of time or giving of notice or both, will be in breach of any obligation thereunder:

(i)                    the Land Lease Agreement;

(ii)                   each other contract or other document evidencing the Borrower’s ownership or control of land and rights to land for the Project, all easements, licenses, and covenants, conditions and restrictions in connection with the Project Site and any and all other documents (including estoppel certificates from landlords) affecting an interest in or right to use the Project Site;

(iii)                  the Construction Contracts and all consulting, engineering, equipment supply and construction agreements;

(iv)                  the Power Purchase Agreements;

(v)                   the Large Generator Interconnection Agreement and all ancillary transmission and interconnection agreements;

(vi)                  each other contract that is required for construction management, project administration and operation and maintenance of the Project;

(vii)                 intellectual property documents evidencing the Borrower’s right to use the intellectual property required to construct, operate and use the Project;

(viii)                the Delivery Term Security Maintenance Agreement;

(ix)                  the Mitigation Land Acquisition Agreement;

(x)                   the Purchase and Sale Agreement;

(xi)                  the Development Services Agreement;

(xii)                 the O&M Agreement;

(xiii)                the Master Services Agreement;

(xiv)                the Escrow Agreement;

(xv)                 other supply agreements, including all agreements relating to materials, utilities, engineering services, equipment supplies, transportation of raw materials, commodities, and other supplies required to operate the Project and the transmission of the output from the Project; and

(xvi)               any other documents or agreements including real property agreements, labor agreements, management services agreements, professional services agreements, and such other agreements reasonably required to construct, own, operate and maintain the Project, certificates or instruments required to be delivered in connection with any of the foregoing that have been entered into by the Borrower in connection with the Project

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prior to the Guarantee Agreement Date, in each case that DOE has designated as a “Project Document” in a writing delivered to the Borrower prior to the Guarantee Agreement Date.

(d)           Organizational Documents. The Organizational Documents of each Borrower Compliance Entity, accompanied, in each case, by the appropriate Officer’s Certificates, Secretary’s Certificates, good standing certificates, incumbency certificates, resolutions and any other documents as DOE reasonably requests (each effective as of the Guarantee Agreement Date), with respect to, inter alia, approval of (i) each such Borrower Compliance Entity’s participation in the Project, (ii) the financing therefor (including the Guaranteed Loans) and the granting of Liens and (iii) the execution, delivery and performance by each such Borrower Compliance Entity of the Transaction Documents to which it is party.

(e)           Merger Documents. The Merger Documents.

(f)            Other Documents. Any other documents and agreements as may be required under the Program Requirements or as otherwise required by DOE, including the Monitoring Table, substantially in the form attached hereto as Exhibit Q.

4.1.2.  Plans and Projections.

(a)           DOE has received, not later than the Ratings Package Delivery Date, the following items (which items will be certified on the Guarantee Agreement Date by an Officer’s Certificate of the Borrower substantially in the form of Exhibit C-1 and by the Independent Engineer on a certificate substantially in the form of Exhibit E), as to the Borrower’s best estimate of the information contained therein as of the Ratings Package Delivery Date:

(i)                    Construction Budget. A construction budget, setting forth, on a monthly basis, all Project Costs necessary to design, develop, construct and start-up the Project through the Project Completion Date (including the amount of any Project Costs previously funded by any Borrower Entity), which construction budget shall specify on an aggregate basis for all Project Costs: (I) the portions of any Project Costs that constitute Eligible Project Costs; and (II) the amount of contingencies, which Construction Budget shall have been reviewed by the Independent Engineer;

(ii)                   Project Plans. The detailed project plans for the design, development, financing, construction, implementation, operation and management of the Project, including updates and supplements to information submitted in response to “Attachment B” to the instructions for Application for a DOE Guarantee, approved by the Independent Engineer as being satisfactory and in form and substance acceptable to DOE and including, without limitation: (i) procurement strategy, supply chain management plan, vendor database, long-lead procurement plan and schedule of domestic content of purchased items; (ii) quality control plan, quality assurance flow-down requirements for major subcontractors and quality assurance plan for operations and maintenance; (iii) risk management plan and risk register; (iv) safety plan; and (v) operations and maintenance plan;

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(iii)                  Financial Plan. A financial plan setting forth all sources and uses of funds needed to pay Project Costs, as reviewed by the Independent Engineer;

(iv)                  Project Costs Report. A detailed description, with supporting documents as reasonably requested by DOE, (A) of Project Costs (including all development costs) incurred and paid to third parties prior to the Ratings Package Delivery Date prepared by the Borrower and reviewed by the Independent Engineer and (B) specifying those Project Costs for which the Borrower, the Sponsors or any Affiliate thereof seeks credit to be applied toward Base Equity and certifying that such amounts are Eligible Project Costs and have been applied in accordance with the Construction Budget;

(v)                   Advance Schedule. A schedule detailing the expected dates and amounts of proposed Advances and Equity Contributions to fund Eligible Project Costs consistent with the Project Plans, the Financial Plan, the Construction Budget and the Project Milestone Schedule, prepared by the Borrower and reviewed by the Independent Engineer;

(vi)                  Project Milestone Schedule. A schedule of significant development, construction and completion milestones for the Project provided by the Borrower and reviewed by the Independent Engineer, in form and substance acceptable to DOE, prepared by the EPC Contractor with respect to the EPC Contract; which will: (x) be prepared by the EPC Contractor with respect to the EPC Contract as a level 3 integrated Project schedule using Primavera 6 software; (y) reflect interdependencies among all project design, permitting, procurement and construction activities; and (z) be integrated with the Project work breakdown structure. The Project Milestone Schedule shall include, without limitation: (i) all design, procurement and construction activities, including subcontracted activities; (ii) interconnection activities, including activities related to the interim tap into PG&E’s transmission system; (iii) cost and resource loading information; (iv) major Power Purchase Agreements dates and requirements; (v) phased commissioning and start-up activities and (vi) a critical path analysis;

(vii)                Base Case Projections. A hard copy of, and a computer disk, CDROM or other customary computer storage media, containing projections of operating results reviewed by the Independent Engineer and DOE (which shall be finished in Excel file format) and the underlying models and assumptions and explanations thereto, on no less frequently than a semi-annual basis for the Project covering the period from the Ratings Package Delivery Date to a date falling no sooner than twelve months after the Maturity Date, showing, on a basis consistent with the Project Plans and the Transaction Documents, the Borrower’s good faith projections based on assumptions that are believed by the Borrower to be a reasonable operating forecast of revenues, expenses, cash flow, and sources and uses of revenues over the forecast period, which projections shall provide for a Projected Debt Service Coverage Ratio for each Payment Period that is equal to or greater than the Minimum DSCR;

(viii)               Initial Operating Budget. An Initial Operating Budget beginning on the Guaranteed Project Completion Date through the first anniversary of the Operational

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Completion Date (the “Initial Operating Budget”), approved by the Independent Engineer;

(ix)                  Employment Projections. Projections for jobs created and maintained in the U.S. as a result of the Project for each calendar year occurring during the term of the Guaranteed Loans;

(x)                   Modified Tracker Components Data. Information with respect to modified elements of the tracker design utilized for the Project, including the torque-tube module-mounting saddles and torque-tube bearings (the “Modified Tracker Components”), including: (x) finite element analysis; and (y) a report including results of qualification testing of the Modified Tracker Components, which shall (i) confirm durability of the Modified Tracker Components sufficient for a 25-year lifetime, (ii) confirm adequacy of bearing design, and (iii) include seismic and wind qualification of the tracker system, including the Modified Tracker Components, approved by the Independent Engineer;

(xi)                  Project Design Package. A complete design package for the Project, in form and substance satisfactory to DOE, including, without limitation: (i) approved design basis documents; (ii) structural analysis for all major systems; (iii) specifications and data sheets for all major components; (iv) general plant arrangements and layout drawings; and (v) integrated design for the supervisory control and data acquisition system and the tracking monitoring and control systems, reviewed by the Independent Engineer; and

(xii)                 Risk Evaluation Documents. Copies of certain Project Documents and Financing Documents (if any) to be identified by DOE in a writing delivered to the Borrower prior to the Guarantee Agreement Date (the “Risk Evaluation Documents”).

(b)           On the Guarantee Agreement Date, DOE shall receive an Officer’s Certificate of the Borrower certifying that, as of the Guarantee Agreement Date, each of the items delivered pursuant to Section 4.1.2(a) has not changed in any material respect since the date of its delivery to DOE, excluding (i) with respect to item (iv) (Project Costs Report), costs incurred since the date of delivery of that item to DOE and (ii) any other changes as approved by DOE.

4.1.3.  Financial Statements. On or prior to the Guarantee Agreement Date, DOE has received (i) annual unaudited Financial Statements for the previous year and unaudited quarterly Financial Statements for the year to date of the Borrower; (ii) consolidated annual audited Financial Statements for the previous year and unaudited quarterly Financial Statements for the year to date of the Ultimate Parent; and (iii) the most recently available consolidated annual audited Financial Statements and unaudited quarterly Financial Statements for the year to date of SunPower Corporation and, as determined by DOE, each other Person whose credit is material to the making of the Guaranteed Loans; in each case together with an Officer’s Certificate in the form of Exhibit I-1 or Exhibit 1-2, as applicable, confirming that such Financial Statements fairly present the financial conditions of such Person.

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4.1.4.  Credit Rating. The Project has received a credit rating from Fitch dated at least thirty (30) Business Days prior to the Guarantee Agreement Date.

4.1.5.  Environmental. DOE has received a copy of (i) a “Phase I” environmental site assessment for the Project Site that conforms to applicable industry and regulatory standards, and any additional or follow-up site investigation or compliance-related audits or assessments (including, but not limited to, any “Phase II” environmental site assessments, compliance audits, or environmental site characterization studies), (ii) a Final Environmental Assessment and Finding of No Significant Impact with respect to the Project Site in accordance with the National Environmental Policy Act, and (iii) evidence of satisfaction of any additional environmental requirements (including, but not limited to, wetlands approvals, biological opinions, required mitigations, or other requirements) in accordance with applicable Environmental Laws, including all required National Environmental Policy Act documentation.

4.1.6.  Permits and Approvals.

(a)             All Required Approvals required for the Project as of the Guarantee Agreement Date are listed on Part I of Schedule 4.1.6, and DOE has received fully executed copies of each of the Required Approvals listed on Part I of such schedule, together with an Officer’s Certificate of the Borrower to the effect that: (i) the copies of such Required Approvals delivered pursuant to this Section 4.1.6 are true, correct and complete copies of such Required Approvals (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters); (ii) no term or condition of any of such Required Approvals delivered pursuant to this Section 4.1.6 has been amended from the form thereof delivered pursuant to this Section 4.1.6; (iii) each such Required Approval delivered pursuant to this Section 4.1.6 has been validly issued, is in full force and effect and Non-Appealable; (iv) all conditions precedent to the effectiveness of such Required Approval delivered pursuant to this Section 4.1.6 have been satisfied (other than conditions not required to be satisfied as of the Guarantee Agreement Date that do not require the discretionary approval of a third party); (v) the Borrower has no reason to believe that any of such Required Approvals delivered pursuant to this Section 4.1.6 shall be revoked.

(b)             All Required Approvals not required for the Project as of the Guarantee Agreement Date are listed on Part II of Schedule 4.1.6, and DOE has received an Officer’s Certificate of the Borrower to the effect that the Borrower has no reason to believe that it or any other Borrower Entity or, to the Borrower’s Knowledge, any Major Project Participant (as applicable) shall fail to obtain the Required Approvals set forth on Part II of Schedule 4.1.6 in the ordinary course free of any unduly burdensome conditions or requirements at such time or times as may be required under the Transaction Documents or as is otherwise necessary to avoid any material delay in, or impairment to, the performance of the transactions as contemplated by the Transaction Documents.

4.1.7.  Receipt of Evidence. Each of the following conditions have occurred and DOE has determined (in its sole discretion) that it has received satisfactory evidence of such occurrence:

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(a)           Lobbying Certification. The Borrower has provided to DOE a Standard Form-LLL “Disclosure Form to Report Lobbying”.

(b)           Commencement of Construction. Commencement of Construction has occurred.

(c)           Cash Grant Eligibility. DOE shall have received:

(i)                    A cost eligibility study report from the Borrower’s Accountant, dated as of the Guarantee Agreement Date and in form and substance reasonably satisfactory to DOE, certifying the projected Project Costs that more likely than not will be included in the cost basis of the Project for purposes of determining the Cash Grant to be received in respect of the Project (determined in accordance with the Cash Grant Guidance, Cash Grant Terms and Conditions and other regulations or guidance issued with respect to the Cash Grant); provided, however, that such cost eligibility study report shall in no event be reasonably satisfactory to DOE unless Borrower’s tax counsel shall have reviewed the material legal assumptions used in creating such report and determined that such legal assumptions should be correct a matter of law.

(ii)                   An Officer’s Certificate from the Sponsor dated as of the Guarantee Agreement Date and certifying (A) that the Project should be eligible for Cash Grants in accordance with Exhibit T, (B) that the commencement of construction within the meaning of the requirements of Section 1603 of Recovery Act with respect to the Project has occurred or will occur prior to the applicable deadline under such Section, (C) as to those factual matters (other than factual matters described in Section 4.1.7(c)(ii)(D)  hereof) as to which the Sponsor is required to make a representation under the cash grant opinion required to be provided pursuant to Section 4.1.12 hereof, and which will be relied upon in such opinion, and (D) in reliance upon the cost eligibility study report provided by the Borrower’s Accountant pursuant to Section 4.1.7(c)(i) hereof, as to the aggregate amount of the projected Project Costs that should be included in the cost basis of the Project for purposes of determining the Cash Grant to be received in respect of the Project (such aggregate amount, the “Projected Cash Grant Basis”) and confirming that such Projected Cash Grant Basis has been determined pursuant to a methodology consistent with the Cash Grant Guidance, Cash Grant Terms and Conditions and other regulations or guidance issued with respect to the Cash Grant.

(iii)                  An Officer’s Certificate from SunPower dated as of the Guarantee Agreement Date and certifying as to factual matters as to which SunPower is required to make a representation under the cash grant opinion required to be provided pursuant to Section 4.1.12 hereof, and which will be relied upon in such opinion.

(iv)                  An Officer’s Certificate from the Borrower dated as of the Guarantee Agreement Date and certifying as to factual matters as to which the Borrower is required to make a representation under the cash grant opinion required to be provided pursuant to Section 4.1.12 hereof, and which will be relied upon in such opinion.

(d)           Guaranteed Loan Fees. Receipt of payment of all Guaranteed Loan Fees from funds other than Advances.

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(e)                                       Fee Arrangements for Independent Consultants. The Periodic Expenses of any Independent Consultants incurred and invoiced prior to the Guarantee Agreement Date (i) have been paid in full or (ii) are to be paid by other arrangements satisfactory to DOE.

(f)                                        Prohibited Persons. No Borrower Entity or Borrower Entity Controlling Person or any Person that Controls any Borrower Entity or Borrower Entity Controlling Person is a Prohibited Person.

(g)                                       ▇▇▇▇▇-▇▇▇▇▇ Requirements. DOE shall have received a certificate from the Borrower, dated as of the Guarantee Agreement Date, certifying that the Borrower has complied with all ▇▇▇▇▇-▇▇▇▇▇ Requirements including any retroactive compliance. The Borrower has included, in each of its ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contracts, the ▇▇▇▇▇-▇▇▇▇▇ Requirements.

4.1.8. Update of Conditional Commitment. DOE has determined that there are no material changes to the terms and conditions contained in the Term Sheet, other than any changes that have been agreed by DOE prior to the Guarantee Agreement Date.

4.1.9. No Judgment Liens. DOE has (a) received an Officer’s Certificate from the Borrower certifying that the Borrower does not have a judgment Lien against any of its Property for any Indebtedness owed to the U.S. or any other creditor; and (b) independently verified, to its satisfaction, the absence of any judgment Lien, as certified by the Borrower.

4.1.10. DOE Requirements.

(a)                                      Program Requirements. All Program Requirements required to have been satisfied as of the Guarantee Agreement Date have been satisfied.

(b)                                      Central Contractor Registration. The Borrower has registered in the CCR database.

(c)                                       Patriot Act. Each of DOE and FFB have received all documentation and other information required by regulatory authorities under the applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, customarily delivered to financial institutions in connection with a transaction such as the issuance of the Guaranteed Loans.

4.1.11. Legal Opinions. DOE and the Collateral Agent have received legal opinions dated the Guarantee Agreement Date from legal counsel reasonably satisfactory to DOE, with respect to the laws of the jurisdictions governing any of the Transaction Documents required to be delivered as a condition to the Guarantee Agreement Date and the laws of the jurisdiction of organization of each Borrower Entity that is a party to a Transaction Document, which legal opinions shall address the following: (a) due authorization, execution, delivery and enforceability of the Transaction Documents to which each such Borrower Entity is a party; (b) creation and perfection of security interests under the Security Documents; (c) receipt and Non-Appealability of all Required Approvals then necessary; (d) absence of conflicts with law, agreements or Organizational Documents; (e) absence of material litigation; and (f) such other matters that DOE requests.

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4.1.12. Cash Grant Opinion. DOE shall have received a cash grant opinion dated as of the Guarantee Agreement Date from tax counsel reasonably satisfactory to DOE, in form and substance reasonably satisfactory to DOE, relying solely upon, with respect to factual matters, (a) the Transaction Documents, (b) the Merger Documents, (c) the Independent Engineer Report, and (d) the items delivered to DOE pursuant to Sections 4.1.7(c)(i), 4.1.7(c)(ii)(C), 4.1.7(c)(ii)(D), 4.1.7(c)(iii), and 4.1.7(c)(iv) hereof, and subject to qualifications, assumptions, representations and exceptions reasonably satisfactory to DOE, that the Project should qualify for Cash Grants in amounts not less than, and by the dates, set forth in Exhibit T.

4.1.13. Events of Default. No Event of Default or Potential Event of Default has occurred or is continuing.

4.1.14. Guarantee Agreement Date Certificates and Reports. DOE has received:

(a)                                           Borrower Certificate. An Officer’s Certificate of the Borrower substantially in the form of Exhibit C-1 and otherwise regarding the matters required to be certified by it as set forth in Section 4.1 and such other matters that DOE requests.

(b)                                           Borrower Accounting Systems Certification. A certification by a Financial Officer of the Borrower stating that the Borrower’s accounting systems, controls and management information systems and are satisfactory for purposes of providing information necessary for financial reporting in accordance with GAAP.

(c)                                            Sponsor Certificate. An Officer’s Certificate of the Sponsor, substantially in the form of Exhibit U, and addressing such other matters that DOE requests including that (i) the Borrower intends to treat the Guaranteed Loans as debt for federal income tax purposes and (ii) the Borrower is not and has not ever been a member of an affiliated or consolidated group for federal or state tax purposes.

(d)                                           Independent Engineer Certificate and Report. A certificate of the Independent Engineer substantially in the form of Exhibit E regarding the matters required to be certified by it in this Section 4.1 and such other matters that DOE requests, including a confirmation of the reasonableness and appropriateness of:

(i)                                                                  the Construction Budget;

(ii)                                                               the Project Plans;

(iii)                                                            the Financial Plans;

(iv)                                                           the Project Costs Report;

(v)                                                              the Initial Operating Budget;

(vi)                                                           the Advance Schedule;

(vii)                                                        the Project Milestone Schedule;

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(viii)                                                     the items described in Section 4.1.2(a)(x) and Section 4.1.2(a)(xi);

(ix)                                                           the Base Case Projections (and all the underlying operating assumptions); and

(x)                                                              certification of Commencement of Construction;

together with the Independent Engineer Report addressing such matters that DOE reasonably requests.

(e)                                       Insurance Advisor Certificate and Report. A report from the Insurance Advisor in respect of the Project and the proposed insurance for the Project (including the insurance required to be obtained by each Major Project Participant under the Major Project Documents) and such other related matters as DOE shall reasonably request, which report shall be in form and substance reasonably satisfactory to DOE, accompanied by an Officer’s Certificate of the Insurance Advisor substantially in the form of Exhibit F regarding the matters specified in Section 4.2.7(f) and addressing such other matters that DOE reasonably requests.

(f)                                        Accountant Letter. A certificate from the Borrower’s Accountant confirming the tax assumptions in the Base Case Projections, in form and substance satisfactory to the DOE.

4.1.15. DOE Approvals. DOE has received each of the following:

(a)                                      Action Memorandum. The action memorandum duly executed and delivered by the Secretary of Energy, authorizing the execution by DOE of the Financing Documents to which it is a party and the apportionment of the Credit Subsidy Cost.

(b)                                      Calculation of Credit Subsidy. Evidence that OMB has reviewed and approved DOE’s calculation of the Credit Subsidy Cost.

(c)                                       Apportionment. Evidence that the Form SF132 Apportionment Request has been approved by OMB and the apportionment has occurred.

4.1.16.  Additional Documents. Receipt of such other documents (including, for the avoidance of doubt, all consents to assignment to the Major Project Documents), certifications, consents, or other items relating to the Project, any Borrower Entity, any Major Project Participant, or the matters contemplated by the Transaction Documents as DOE reasonably requests. In particular, the consent and agreement between DOE and PG&E in respect of the HPR II PPA shall state, or PG&E shall otherwise affirm in writing, (i) that PG&E acknowledges that the milestone dates have been extended as per Annex 2 of the Developmental Delay Notice, (ii) that Section 3.9(c)(iii)(A)(I) thereof should be read to apply to time extensions of the Guaranteed Construction Start Date of each of ▇▇▇▇▇ ▇, ▇▇▇▇▇ 2 and Phase 3, and (iii) that PG&E acknowledges that the requirements of each of Section 11.1(b) and Section 11.1(c) thereof have been met or waived in writing.

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4.1.17.  NRG Equity Immediately prior to the effectiveness of this Loan Guarantee Agreement, the Sponsor shall (directly or indirectly) acquire 100% of Equity Interests in the Borrower from SunPower under the Purchase and Sale Agreement on terms and conditions set forth in the Purchase and Sale Agreement.

4.1.18.  Litigation. Except as may be set forth on Schedule 4.1.18, there is no pending or, to the Borrower’s Knowledge, threatened Action (in writing) (i) that relates to the Project or to any transaction contemplated by any of the Transaction Documents, (ii) that relates to the legality, validity or enforceability of any of the Transaction Documents, or (iii) to which any Borrower Entity (other than any Action contemplated under clause (i) or clause (ii) above) or, to the Borrower’s Knowledge, any other Major Project Participant is a party, that (in the case of this clause (iii) only), either singly or in the aggregate, has, or could reasonably be expected to have, a Material Adverse Effect.

4.1.19.  Due Diligence Review. DOE has completed, to its satisfaction, its due diligence review of the Project and all other matters related thereto as DOE deems necessary for purposes of the execution of the FFB Documents to be executed and delivered on the Guarantee Agreement Date.

4.1.20.  Notice to Proceed. The Borrower (or, in the case of the EPC Subcontract, SunPower) has issued a “Full Notice to Proceed” (as such term is defined in the EPC Contract and the EPC Subcontract, as applicable) under the EPC Contract and the EPC Subcontract.

4.1.21.  SunPower’s Certification. A certificate from the chief financial officer of SunPower (i) confirming that the EPC Contract, the Master Services Agreement, the Materials and Equipment Supply Agreement, the Purchase and Sale Agreement, potential revenue from a sale of the fee interest in real property subject to the Land Lease Agreement and the Land Lease Agreement are the only sources of revenue for SunPower in the Project and (ii) setting forth the gross profit margin expected to be received by SunPower from the Project as of the Guarantee Agreement Date.

4.1.22.  Quality Assurance Plan. The Borrower has submitted the quality assurance plan.

4.1.23.  No Prejudice. The Borrower has provided an acknowledgement in an Officer’s Certificate, acknowledging on behalf of itself and each Borrower Entity, that the issuance of the DOE Guarantee, including the determination by DOE and the Loan Servicer as to whether Project Costs are Eligible Project Costs, shall not prejudice or otherwise have any binding effect with regard to any determination by the Internal Revenue Service, the U.S. Department of the Treasury, or a court of law as to the tax basis of the

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Project or any part thereof under the Internal Revenue Code and under Section 1603 of the American Recovery and Reinvestment Act of 2009.

4.1.24.  Letters of Credit and Surety Bonds. DOE shall have received evidence that the Development Security, the Delivery Term Security, the EPC Contract Security, the Mitigation Land Security and the LGIA Surety Bonds shall have been posted in the form of Letters of Credit, in each case, in form and substance reasonably satisfactory to DOE.

4.1.25.  CEQA Litigation Support Instruments. DOE shall have received final forms of the CEQA Letter of Credit and the Total Guarantee, each in form and substance reasonably satisfactory to DOE.

4.1.26.  Cash Grant Shortfall Security. DOE shall have received (a) the NRG Cash Grant Shortfall Security and the SunPower Cash Grant Shortfall Security, each in form and substance reasonably satisfactory to DOE and (b) a legal opinion, in form and substance satisfactory to DOE, regarding the due execution, authorization, delivery and enforceability of the NRG Cash Grant Shortfall Security.

SECTION 4.2.               Conditions Precedent to First Advance.

The obligation of DOE to approve the first Advance is subject to the prior satisfaction (or waiver), as determined by DOE, of each of the following conditions precedent (and of any deliverable, as to its form and substance) as of the date of Master Advance Notice delivered with respect to the first Advance (or such other date specified in this Section 4.2).

4.2.1. Financing Documents. DOE has received fully executed originals in sufficient counterparts for each party to each of the following Financing Documents, each of which is in full force and effect and without amendment, as certified by the Borrower (or, in the case of Section 4.1.1(a)(iii), certified by the relevant Borrower Entity or Major Project Participant, as the case may be), other than any such amendments permitted under the terms of the Financing Documents and previously disclosed to DOE in writing:

(a)                                           Master Advance Notice. An executed Master Advance Notice together with all certificates and documentation required under this Section 4.2;

(b)                                           Other Financing Documents. The DOE Guarantee, the FFB Documents and any other documents or agreements designated as “Financing Documents” by DOE in a writing delivered to the Borrower prior to the Guarantee Agreement Date, to the extent not delivered pursuant to Section 4.1.1.

4.2.2.  Other Documents. DOE has received the following items, certified by the Borrower:

(a)                                           Borrower Compliance Entity Organizational Documents. Updated certified Organizational Documents of each Borrower Compliance Entity, to the extent any such document has been modified since the Guarantee Agreement Date, accompanied, in each case,

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by Officer’s Certificates, Secretary’s Certificates, good standing certificates, incumbency certificates, resolutions and any other documents as DOE reasonably requests, with respect to, inter alia, approval of (i) each such Borrower Compliance Entity’s participation in the Project, (ii) the financing therefor (including the Guaranteed Loans) and the granting of Liens and (iii) the execution, delivery and performance by each such Borrower Compliance Entity of the Transaction Documents to which it is party.

(b)                                           Other Transaction Documents. Transaction Documents to the extent not delivered pursuant to Section 4.1.1.

(c)                                            Other Documents. Such other documents as DOE reasonably requests in a writing delivered to the Borrower prior to the Guarantee Agreement Date.

4.2.3. Plans and Projections.

DOE has received an update, if any, of each of the documents delivered pursuant to Section 4.1.2 or certification from the Borrower that no such update is required because such document has not changed since the date of its delivery to DOE.

4.2.4. Financial Statements.

DOE has received the most recent annual audited (if available) and unaudited quarterly Financial Statements of the Borrower, the Ultimate Parent and SunPower Corporation to the extent not delivered pursuant to Section 4.1.3 (whether it was then unavailable or otherwise), together in each case with an Officer’s Certificate from a Financial Officer of each of the Borrower, the Sponsor, or SunPower as applicable.

4.2.5. Permits and Approvals.

(a)                                           All Required Approvals required for the Project as of the First Advance Date are listed on Part I of Schedule 4.2.5 (as may have been amended by the Borrower since the Guarantee Agreement Date), and DOE has received fully executed copies of each of the Required Approvals listed on Part I of such schedule (as may have been amended by the Borrower since the Guarantee Agreement Date), together with an Officer’s Certificate of the Borrower to the effect that: (i) the copies of such Required Approvals delivered pursuant to this Section 4.2.5 are true, correct and complete copies of such Required Approvals (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters); (ii) no term or condition of any of such Required Approvals delivered pursuant to this Section 4.2.5 has been amended from the form thereof delivered pursuant to this Section 4.2.5; (iii) each such Required Approval delivered pursuant to this Section 4.2.5 has been validly issued, is in full force and effect and Non-Appealable; (iv) all conditions precedent to the effectiveness of any such Required Approval delivered pursuant to this Section 4.2.5 have been satisfied (other than conditions not required to be satisfied as of the First Advance Date that do not require the discretionary approval of a third party); (v) the Borrower has no reason to believe that any of such Required Approvals delivered pursuant to this Section 4.2.5 shall be revoked; and (vi) the Required Approvals described in Part I of Schedule 4.2.5 (as may have been amended by the Borrower since the Guarantee Agreement Date) are all of the Required Approvals that are necessary or required to be obtained as of the First Advance Date under

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Applicable Law or any agreement applicable to, or binding on, any Borrower Entity or any of their respective Properties or, to the Borrower’s Knowledge, any Project Participant or any of their respective Properties.

(b)                                           All Required Approvals not then required for the Project are listed on Part II of Schedule 4.2.5 (as may have been amended by the Borrower since the Guarantee Agreement Date), and DOE has received an Officer’s Certificate of the Borrower to the effect that the Borrower has no reason to believe that it or any other Borrower Entity or, to the Borrower’s Knowledge, any Major Project Participant (as applicable) shall fail to obtain the Required Approvals set forth on Part II of Schedule 4.2.5 (as may have been amended by the Borrower since the Guarantee Agreement Date) in the ordinary course free of any unduly burdensome conditions or requirements at such time or times as may be required under the Transaction Documents or as is otherwise necessary to avoid any material delay in, or impairment to, the performance of the transactions as contemplated by the Transaction Documents.

4.2.6. Advisors’ Certificates and Reports.

DOE has received bringdown certificates respectively from the Independent Engineer, Insurance Advisor and Borrower’s Accountant, each dated the date of the Master Advance Notice delivered with respect to the first Advance, of the reports delivered pursuant to Section 4.1.14(d), Section 4.1.14(e) and Section 4.1.14(f) and each confirming that the initially delivered report is true and correct in all material respects as of such date:

(a)                                      Independent Engineer Certificate. A certificate from the Independent Engineer, (i) confirming that its certificate and Independent Engineer Report delivered pursuant to Section 4.1.14(d) are true and correct in all material respects as of the date of the Master Advance Notice delivered with respect to the first Advance and, if any matter covered by such certificate or report has been updated since the Guarantee Agreement Date, confirming the reasonableness and appropriateness of any such update and (ii) providing an updated report addressing such matters as DOE reasonably requests.

(b)                                      Insurance Advisor Certificate. An Officer’s Certificate from the DOE Insurance Advisor, (i) confirming that its certificate and report delivered pursuant to Section 4.1.14(e) are true and correct in all material respects as of the date of the Master Advance Notice delivered with respect to the first Advance and, if any matter covered by such certificate or report has been updated since the Guarantee Agreement Date, confirming the reasonableness and appropriateness of any such update, (ii) addressing each of the matters contemplated by Section 4.2.7(f) and (iii) providing an updated report addressing such matters as DOE reasonably requests.

(c)                                       Accountant Letter. A certificate from the Borrower’s Accountant confirming that its certificate delivered pursuant to Section 4.1.14(f) is true and correct in all material respects as of the date of the Master Advance Notice delivered with respect to the first Advance or, if any matter covered by such certificate has been updated since the Guarantee Agreement Date, confirming the reasonableness and appropriateness of any such update.

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(d)                                           Pre-Closing Project Costs Report. An update to the report delivered pursuant to Section 4.1.2(a)(iv) which shall be a detailed description, with supporting documents as reasonably requested by DOE, (A) of Project Costs (including all development costs) incurred and paid to third parties prior to the date of the Master Advance Notice delivered with respect to the first Advance prepared by the Borrower and reviewed by the Independent Engineer for costs of a technical nature and (B) specifying those Project Costs for which the Borrower, the Sponsors or any Affiliate thereof seeks credit to be applied toward Base Equity and certifying that such amounts are Eligible Project Costs and have been applied in accordance with the Construction Budget.

4.2.7. Receipt of Evidence.

Each of the following conditions has occurred and DOE has received satisfactory evidence of such occurrence:

(a)                                      [Reserved.]

(b)                                      Project Accounts. Each of the Project Accounts has been established in

accordance with the provisions of the Accounts Agreement.

(c)                                       Security Interests.

(i)                                                             All security interests intended to be created by the Security Documents have been validly created and, where appropriate, have been registered or otherwise perfected to create a first priority perfected security interest and Lien, subject only to Permitted Liens, over the Collateral in favor of the Secured Parties.

(ii)                                                          Each of the Security Documents has been duly filed and registered or recorded in every jurisdiction in which such filing and registration or recording is necessary or advisable to make valid and effective the Liens intended to be created thereby and the rights of the Secured Parties thereunder and all fees and duties in connection with such filing, registration or recording have been paid in full.

(d)                                      Borrower Bankruptcy Remote. The Borrower’s Organizational Documents include bankruptcy remote provisions (including, but not limited to, a certificate of formation, which limits the organizational purpose to construction, operation, development, financing and maintenance of the Project and requires that, notwithstanding anything included therein or by any provision of law, the Borrower will not, without 100% approval by the outstanding membership interests, dissolve, liquidate, consolidate or merge into another entity or convey or transfer properties and assets or institute proceedings to be adjudicated in bankruptcy or insolvency or seek consent to reorganize or liquidate) and an independent director (who has not been, in the last five years, (i) a direct or indirect legal or beneficial owner of the Borrower, any Borrower Affiliate or SunPower, (ii) a creditor, supplier, employee, officer, director, family member, manager or contractor of the Borrower, any Borrower Affiliate or SunPower or (iii) a person who controls the Borrower, any Borrower Affiliate or SunPower or any creditor, supplier, employee, officer, director, family member, manager or contractor of the Borrower or any Borrower Affiliate or SunPower) has been appointed to the board (or equivalent governing body) of the Borrower.

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(e)                                       Taxes; Costs and Periodic Expenses. All Taxes and all other costs, fees and Periodic Expenses due in connection with the execution, delivery, filing, registration, recordation or performance of the Transaction Documents or the perfection of the security interests in the Collateral (i) have been paid in full, (ii) are to be paid with the proceeds of the requested Advance or (iii) are to be paid by other arrangements satisfactory to DOE.

(f)                                        Insurance. (i) All Required Insurance is in place, in good standing and in full force and effect without default and all premiums due thereon (A) have been paid in full, (B) are to be paid with the proceeds of the first Advance or (C) are to be paid by other arrangements satisfactory to DOE and (ii) the Loan Servicer has received certificates or policies with respect to such Required Insurance, designating the Collateral Agent as loss payee and the Secured Parties as additional insureds, as appropriate, certified by the Borrower and the DOE Insurance Advisor as being true, correct and complete.

(g)                                       Land Acquisition; Title to Project Site. (i) The Borrower owns or has procured such fee, leasehold, easement and other real property interests (subject only to Permitted Liens) in and to the Project Site as is necessary for the development, construction, ownership, operation and maintenance of the Project thereon, (ii) the ALTA Survey has been issued to the Borrower and to the DOE and (iii) the Title Policy has been issued to the DOE (or the Title Companies are irrevocably committed to issue such Title Policy upon recordation of the Deed of Trust and payment of the Title Companies’ premiums and charges).

(h)                                      Base Equity Commitment. (i) The Base Equity Commitment obligation has been fully funded, or the Base Equity Commitment Collateral for the remaining amount of the Base Equity Commitment has been provided as set forth in the Equity Funding Agreement and (ii) funding of the Base Equity Commitment was, or will be, applied towards Project Costs in accordance with the Equity Funding Agreement.

(i)                                          Intellectual Property. The Borrower owns or holds (or has available to it on commercially reasonable terms) a valid and enforceable license or right to use all Technology and Intellectual Property Rights necessary for the construction and operation of the Project through the Maturity Date (which includes all Intellectual Property Rights granted or conferred under the EPC Contract) subject to Bankruptcy Laws and general principles of equity regardless of whether enforcement is considered in a proceeding at law or in equity.

(j)                                         Payment and Performance Bonds. Any Support Instruments (including payment and performance bonds) required to be issued in respect of any Project Document have been delivered and are in full force and effect.

(k)                                      Debt Repayment. Any existing Indebtedness of the Borrower has been indefeasibly repaid in full in cash and any associated Liens encumbering any Collateral have been irrevocably released, other than Permitted Indebtedness and Permitted Liens.

(1)                                      Fees. Receipt of payment of all Guaranteed Loan Fees and fees of Independent Consultants then due from funds other than Advances.

(m)           ▇▇▇▇▇-▇▇▇▇▇ Requirements. Each of the representations and warranties made by the Borrower in Section 5.25(a) are true and correct.

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4.2.8. Non-disturbance Agreements.

With respect to any portion of the Project Site consisting of a leasehold or easement interest, DOE and the Collateral Agent have received customary non-disturbance agreements from each applicable lessor or owner of the burdened parcel, and each of their respective mortgagees, each in form and substance satisfactory to DOE.

4.2.9. Program Requirements.

All Program Requirements required to have been satisfied as of the Guarantee Agreement Date have been satisfied.

4.2.10. Conditions Precedent in FFB Documents.

Each condition precedent to the first Advance under the FFB Documents has been satisfied in the sole determination of FFB and DOE, as applicable.

4.2.11. Conditions Precedent in Transaction Documents.

All conditions precedent to the obligations of any party under any Transaction Document to be performed as of the First Advance Date have been satisfied or waived.

4.2.12. Legal Opinions.

To the extent that (a) DOE and the Collateral Agent have not received legal opinions governing one or more of the Transaction Documents or (b) there have been any material amendments or changes to the Transaction Documents since the Guarantee Agreement Date, DOE and the Collateral Agent have received legal opinions dated the First Advance Date and from legal counsel satisfactory to DOE, with respect to the laws of the jurisdictions governing such Transaction Documents to which each Borrower Entity and each other Major Project Participant is a party and the laws of the jurisdictions of organization of each Borrower Entity and each other Major Project Participant that is a party to such Transaction Documents. Such legal opinions shall include the following: (i) due authorization, execution, delivery and enforceability of such Transaction Documents to which each such Borrower Entity and other Major Project Participant is a party; (ii) creation and perfection of security interests under the Security Documents (if applicable and solely with respect to such Transaction Documents); (iii) receipt and Non-Appealability of all Required Approvals necessary (if applicable and solely with respect to such Transaction Documents); (iv) absence of conflicts with law, agreements or Organizational Documents (solely with respect to such Transaction Documents); (v) absence of material litigation (solely with respect to such Transaction Documents); and (vi) such other matters that DOE reasonably requests.

4.2.13. No Judgment Liens.

DOE has received confirmation that the Borrower does not have a judgment Lien against any of its Property for any Indebtedness owed to the U.S. or any other creditor.

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4.2.14. Representations and Warranties.

As of the First Advance Date, each of the representations and warranties made (or deemed made) by any Major Project Participant in any Financing Document (including any Direct Agreement) in effect as of the First Advance Date is true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality,” “Material Adverse Effect” or any similar qualifier, in which case, it shall be true and correct in all respects) as of such date except to the extent such representation or warranty is made only as of a specific date or time (in which event such representation or warranty shall be true and correct as of such date or time).

4.2.15. Transmission.

DOE has received evidence that there are adequate rights to firm transmission service for power generated by the Project in the amounts and during the periods required under the Power Purchase Agreements.

4.2.16. Due Diligence Review.

DOE has completed, to its satisfaction, its due diligence review of the Project and all other matters related thereto.

4.2.17. Litigation.

There is no pending or, to the Borrower’s Knowledge, threatened Action (a) that relates to the Project or to any transaction contemplated by any of the Transaction Documents or (b) that relates to the legality, validity or enforceability of any of the Transaction Documents or (c) to which any Borrower Entity (other than any Action contemplated under clause (a) above) or, to the Borrower’s Knowledge, any other Major Project Participant is a party, that (in the case of clauses (a) and (c) only) the Guarantor has determined has, or is reasonably expected to have, a Material Adverse Effect or may otherwise materially adversely affect the interests of the Guarantor, including in its capacity as an agency of the United States Government.

4.2.18. No Changes to Terms and Conditions of Risk Evaluation Documents.

Except as DOE may have approved, there shall have been no material changes to the terms and conditions of the Risk Evaluation Documents from and after the date such documents were delivered pursuant to Section 4.1.2(a)(xii).

4.2.19. First Advance Date Certificates.

DOE has received:

(a)                                      Borrower Certificate. An Officer’s Certificate, substantially in the form of Exhibit C-2, containing certifications of the Borrower regarding the matters required to be certified by it as set forth in this Section 4.2 and other matters that DOE reasonably requests.

(b)                                      Sponsor Certificate. An Officer’s Certificate of the Sponsor substantially in the form of Exhibit H addressing such other matters that DOE reasonably requests.

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(c)                                       Major Project Participant Certificates. A certificate from each Major Project Participant (other than PG&E, the California Independent System Operator, any Borrower Compliance Entity that is delivering the relevant certificate under other sections of this Loan Guarantee Agreement, Escrow Associates, LLC and any Person that is a Major Project Participant solely because it provides a Support Instrument in connection with a Major Project Document) substantially in the form of Exhibit K and addressing such other matters that DOE requests.

4.2.20. Contractor Subordination. DOE has received a subordination agreement from each of the contractors and suppliers identified on Schedule 4.2.20, pursuant to which such party subordinates its interest under the applicable contract identified on Schedule 4.2.20 to the lien of the Deed of Trust, which subordination agreement shall be in the form of Exhibit P or such other form as may be reasonably acceptable to DOE.

4.2.21. Additional Documents. DOE has received such other documents, certifications, or consents relating to the Project, any Borrower Entity, any Major Project Participant, or the matters contemplated by the Transaction Documents as DOE reasonably requests.

SECTION 4.3.               Quarterly Conditions Precedent to Advances.

The obligation of DOE to approve each Advance (other than the first Advance to the extent the First Advance Date occurs on or prior to the three (3) month anniversary of the Guarantee Agreement Date) is subject to the prior satisfaction (or waiver), as determined by DOE of each of the following conditions precedent (and of any deliverable, as to its form and substance) (the “Quarterly Conditions Precedent”) as of the most recent Quarterly Approval Date:

4.3.1. Construction Progress Report; Construction Budget.

DOE has received an Officer’s Certificate from each of the Borrower and the Independent Engineer certifying that as of such Quarterly Approval Date:

(a)                                           there is no reason to believe that anything is incorrect or misleading in any material respect in the most recent Construction Progress Report;

(b)                                           there have been no changes to the Construction Budget since (i) the Guarantee Agreement Date in respect of the first Quarterly Approval Date or (ii) the previous Quarterly Approval Date in respect of any succeeding Quarterly Approval Date, except for Approved Construction Changes;

(c)                                            construction of the Project is proceeding in accordance with the Project Plans, the Construction Budget, the Financial Plan and the Project Milestone Schedule, and the Project is expected to achieve Operational Completion by the Anticipated Operational Completion Date;

(d)                                           the Project is expected to achieve Project Completion by the Guaranteed Project Completion Date;

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(e)                                       nothing has occurred since the date of the most recent Construction Progress Report or the date of the Independent Engineer’s most recent site visit, whichever is later, that could reasonably be expected to prevent construction of the Project in accordance with the Project Milestone Schedule and the Construction Budget; and

(f)                                        the Borrower has achieved the targets projected in the Project Milestone Schedule to occur prior to such Quarterly Approval Date.

4.3.2. Base Case Projections.

DOE has received either (i) certification from the Borrower that there are no changes to the Base Case Projections that have had, or could reasonably be expected to have, a Material Adverse Effect and that there are no material changes to the assumptions therein or (ii) certified updated Base Case Projections that are acceptable to DOE.

4.3.3. Permits and Approvals.

(a)                                      All Required Approvals required for the Project as of the applicable Quarterly Approval Date are listed on Part I of Schedule 4.3.3 (as may have been amended by the Borrower since the previous Quarterly Approval Date), and DOE has received fully executed copies of each of the Required Approvals listed on Part I of such schedule (as may have been amended by the Borrower since the previous Quarterly Approval Date), together with an Officer’s Certificate of the Borrower to the effect that: (i) the copies of such Required Approvals delivered pursuant to this Section 4.3.3 are true, correct and complete copies of such Required Approvals (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters); (ii) no term or condition of any of such Required Approvals delivered pursuant to this Section 4.3.3 has been amended from the form thereof delivered pursuant to this Section 4.3.3; (iii) each such Required Approval delivered pursuant to this Section 4.3.3 has been validly issued, is in full force and effect and Non-Appealable; (iv) all conditions precedent to the effectiveness of any such Required Approval delivered pursuant to this Section 4.3.3 have been satisfied (other than conditions not required to be satisfied as of the applicable Quarterly Approval Date that do not require the discretionary approval of a third party); (v) the Borrower has no reason to believe that any of such Required Approvals delivered pursuant to this Section 4.3.3 shall be revoked; and (vi) the Required Approvals described in Part I of Schedule 4.3.3 (as may have been amended by the Borrower since the previous Quarterly Approval Date) are all of the Required Approvals that are necessary or required to be obtained as of the applicable Quarterly Approval Date under Applicable Law or any agreement applicable to, or binding on, any Borrower Entity or any of their respective Properties or, to the Borrower’s Knowledge, any Project Participant or any of their respective Properties.

(b)                                      All Required Approvals not required for the Project as of the applicable Quarterly Approval Date are listed on Part II of Schedule 4.3.3 (as may have been amended by the Borrower since the previous Quarterly Approval Date), and DOE has received an Officer’s Certificate of the Borrower to the effect that the Borrower has no reason to believe that it or any other Borrower Entity or, to the Borrower’s Knowledge, any Major Project Participant (as applicable) shall fail to obtain the Required Approvals set forth on Part II of Schedule 4.3.3 (as may have been amended by the Borrower since the previous Quarterly Approval Date) in the

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ordinary course free of any unduly burdensome conditions or requirements at such time or times as may be required under the Transaction Documents or as is otherwise necessary to avoid any material delay in, or impairment to, the performance of the transactions as contemplated by the Transaction Documents.

4.3.4. Proceedings and Other Documents.

DOE has received (i) certification from the Borrower that all corporate and similar proceedings concluded since the last Quarterly Approval Date are in proper form and substance, (ii) original counterparts or copies certified by the Borrower of all Additional Project Documents entered into since the last Quarterly Approval Date and (iii) such other evidence as DOE reasonably requests in order to evidence the consummation of the transactions contemplated thereby and compliance with the Quarterly Conditions Precedent.

4.3.5. Cash Grant Eligibility. DOE shall have received:

(a)                                           An Officer’s Certificate from the Sponsor dated as of such Quarterly Advance Date and certifying (i) as to those factual matters (other than factual matters described in Section 4.3.5(a)(ii) hereof) as to which the Sponsor is required to make a representation under the cash grant opinion required to be provided pursuant to Section 4.3.6 hereof, and which will be relied upon in such opinion, substantially in the form of the corresponding certificate delivered on the Guarantee Agreement Date except to the extent that (A) counsel to the Sponsor reasonably requests changes; (B) the relevant facts or law (including administrative interpretations thereof) have, in the good faith opinion of DOE or DOE’s counsel, changed; (C) DOE or DOE’s counsel requests in good faith reasonable changes to correct errors or omissions in the corresponding certificate delivered on the Guarantee Agreement Date, determined in their reasonable judgment; (D) the scope of the conclusions in the cash grant opinion to be delivered differ from those of the corresponding opinion on the Guarantee Agreement Date (taking into account all of the requirements as to reasonableness and otherwise with respect to such opinion in Section 4.3.6); or (E) as the Sponsor, DOE and their respective counsel shall agree, and (ii) that the Projected Cash Grant Basis is not materially less than described in the cost eligibility study report delivered pursuant to Section 4.1.7(c)(i) hereof.

(b)                                           An Officer’s Certificate from SunPower dated as of such Quarterly Advance Date and certifying as to factual matters as to which SunPower is required to make a representation under the cash grant opinion required to be provided pursuant to Section 4.3.6 hereof, and which will be relied upon in such opinion, substantially in the form of the corresponding certificate delivered on the Guarantee Agreement Date except to the extent that (i) counsel to SunPower reasonably requests changes; (ii) the relevant facts or law (including administrative interpretations thereof) have, in the good faith opinion of DOE or DOE’s counsel, changed; (iii) DOE or DOE’s counsel requests in good faith reasonable changes to correct errors or omissions in the corresponding certificate delivered on the Guarantee Agreement Date, determined in their reasonable judgment; (iv) the scope of the conclusions in the cash grant opinion to be delivered differ from those of the corresponding opinion on the Guarantee Agreement Date (taking into account all of the requirements as to reasonableness and otherwise with respect to such opinion in Section 4.3.6); or (v) as SunPower, DOE and their respective counsel shall agree.

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(c)                                       An Officer’s Certificate from the Borrower dated as of such Quarterly Advance Date and certifying as to factual matters as to which the Borrower is required to make a representation under the cash grant opinion required to be provided pursuant to Section 4.3.6 hereof, and which will be relied upon in such opinion, substantially in the form of the corresponding certificate delivered on the Guarantee Agreement Date except to the extent that (i) counsel to the Borrower reasonably requests changes; (ii) the relevant facts or law (including administrative interpretations thereof) have, in the good faith opinion of DOE or DOE’s counsel, changed; (iii) DOE or DOE’s counsel requests in good faith reasonable changes to correct errors or omissions in the corresponding certificate delivered on the Guarantee Agreement Date, determined in their reasonable judgment; (iv) the scope of the conclusions in the cash grant opinion to be delivered differ from those of the corresponding opinion on the Guarantee Agreement Date (taking into account all of the requirements as to reasonableness and otherwise with respect to such opinion in Section 4.3.6); or (v) as the Borrower, DOE and their respective counsel shall agree.

4.3.6. Cash Grant Opinion. DOE shall have received a cash grant opinion dated as of such Quarterly Approval Date from tax counsel reasonably satisfactory to DOE, in form satisfactory to DOE and in substance reasonably satisfactory to DOE as to the matters discussed in the cash grant opinion provided pursuant to Section 4.1.12 hereof, relying solely upon, with respect to factual matters, (a) the Transaction Documents, (b) the Merger Documents, (c) the Independent Engineer Report, and (d) the items delivered to DOE pursuant to Sections 4.1.7(c)(i), 4.3.5(a), 4.3.5(b), and 4.3.5(c) hereof, and subject to qualifications, assumptions, representations and exceptions reasonably satisfactory to DOE, that there have been no changes in facts or Applicable Law that should adversely affect in any material manner the legal conclusions contained in the cash grant opinion provided pursuant to Section 4.1.12 hereof.

4.3.7.   Receipt of Evidence of Insurance. All required insurance is in place and in full force and effect, with all premiums due thereon paid in full, together with a certificate from the Borrower Insurance Advisor confirming the same.

4.3.8. Quarterly Certificates

DOE has received:

(a)                                      Borrower Certificate. An Officer’s Certificate of the Borrower regarding the matters required to be certified by it as set forth in this Section 4.3 and other matters that DOE reasonably requests. Matters requiring certification of the Borrower pursuant to this Section  4.3.8(a) may be included in the Quarterly Reporting Certificate substantially in the form of Exhibit L and otherwise delivered as part of the Quarterly Reporting Package pursuant to Section  6.1.5 hereof.

(b)                                      Sponsor Certificate. An Officer’s Certificate of the Sponsor substantially in the form of Exhibit H and otherwise regarding the matters that DOE reasonably requests.

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(c)                                       Independent Engineer Certificate. A certificate of the Independent Engineer and otherwise regarding the matters required to be certified by it as set forth in this Section 4.3 in substantially the form attached as Exhibit M.

4.3.9. Additional Documents.

DOE has received such other documents, certifications, or consents relating to the Project, any Borrower Entity, any Major Project Participant, or the matters contemplated by the Transaction Documents as DOE reasonably requests.

SECTION 4.4.               Conditions Precedent to Each Advance.

The obligation of DOE to approve any Advance (including the first Advance) is subject to the prior satisfaction (or waiver), as determined by DOE, of each of the following conditions precedent (and of any deliverable, as to its form and substance) as of the date of the relevant Master Advance Notice (or such other date specified in this Section 4.4).

4.4.1. Master Advance Notice and Invoices.

DOE has received an executed Master Advance Notice delivered in accordance with the terms of Section 2.2.1 hereunder, together with all certificates and documentation required under this Section 4.4 (and, in the case of the first Advance, Section 4.2).

4.4.2. Quarterly Conditions Precedent.

All Quarterly Conditions Precedent were satisfied on the immediately preceding Quarterly Approval Date.

4.4.3. Representations and Warranties.

Each of the representations and warranties made (or deemed made) by any Borrower Entity or Major Project Participant in any Transaction Document are true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality,” “Material Adverse Effect” or a similar qualifier, in which case it shall be true and correct in all respects) as of such date, except to the extent such representation or warranty is made only as of a specific date or time (in which event such representation or warranty shall be true and correct as of such date or time).

4.4.4. Covenants.

Each Borrower Entity is in compliance in all material respects with its obligations under each Financing Document to which it is a party.

4.4.5. Events of Default.

No Event of Default or Potential Event of Default has occurred or is continuing.

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4.4.6. Material Adverse Effect.

Since the Guarantee Agreement Date, for the first Advance, and since the previous Advance Date, for each succeeding Advance, no event (including any legal, arbitral or other dispute review proceeding or any Change of Law) has occurred or could reasonably be expected to occur that has had or could reasonably be expected to have a Material Adverse Effect.

4.4.7. Debt to Equity Ratio.

Both before and after giving effect to the Advance and associated Equity Contributions, the Debt to Equity Ratio, has and will not exceed the Maximum Debt to Equity Ratio.

4.4.8. Permits and Approvals.

(a)                                 All Required Approvals required for the Project as of the date of the relevant Master Advance Notice are listed on Part I of Schedule 4.4.8 (as may have been amended by the Borrower since the delivery of the previous Master Advance Notice), and DOE has received fully executed copies of each of the Required Approvals listed on Part I such schedule (as may have been amended by the Borrower since the delivery of the previous Master Advance Notice), together with an Officer’s Certificate of the Borrower to the effect that: (i) the copies of such Required Approvals delivered pursuant to this Section 4.4.8 are true, correct and complete copies of such Required Approvals (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters); (ii) no term or condition of any of such Required Approvals delivered pursuant to this Section 4.4.8 has been amended from the form thereof delivered pursuant to this Section 4.4.8; (iii) each such Required Approval delivered pursuant to this Section 4.4.8 has been validly issued, is in full force and effect and Non-Appealable; (iv) all conditions precedent to the effectiveness of any such Required Approval delivered pursuant to this Section 4.4.8 have been satisfied (other than conditions not required to be satisfied as of the date of the applicable Master Advance Notice that do not require discretionary approval of a third party); (v) the Borrower has no reason to believe that any of such Required Approvals delivered pursuant to this Section 4.4.8 shall be revoked; and (vi) the Required Approvals described in Part I of Schedule 4.4.8 (as may have been amended by the Borrower since the delivery of the previous Master Advance Notice) are all of the Required Approvals that are necessary or required to be obtained as of the applicable Quarterly Approval Date under Applicable Law or any agreement applicable to, or binding on, any Borrower Entity or any of their respective Properties or, to the Borrower’s Knowledge, any Project Participant or any of their respective Properties.

(b)                                 All Required Approvals not required for the Project as of the date of the relevant Master Advance Notice are listed on Part II of Schedule 4.4.8 (as may have been amended by the Borrower since the delivery of the previous Master Advance Notice), and DOE has received an Officer’s Certificate of the Borrower to the effect that the Borrower has no reason to believe that it or any other Borrower Entity or, to the Borrower’s Knowledge, any Major Project Participant (as applicable) shall fail to obtain the Required Approvals set forth on Part II of Schedule 4.4.8 (as may have been amended by the Borrower since the delivery of the previous Master Advance Notice) in the ordinary course free of any unduly burdensome conditions or requirements at such time or times as may be required under the Transaction Documents or as is otherwise necessary to avoid any material delay in, or impairment to, the performance of the transactions as contemplated by the Transaction Documents.

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4.4.9. Litigation.

There is no pending or, to the Borrower’s Knowledge, threatened Action (in writing) (i) that relates to the Project or to any transaction contemplated by any of the Transaction Documents, (ii) that relates to the legality, validity or enforceability of any of the Transaction Documents, or (iii) to which any Borrower Entity (other than any Action contemplated under clause (i) above) or, to the Borrower’s Knowledge, any other Major Project Participant is a party, that (in the case of clause (i) or (iii) above), either singly or in the aggregate, has, or could reasonably be expected to have, a Material Adverse Effect or would not, in DOE’s determination, have a Material Adverse Effect on DOE’s interest.

4.4.10. No Violation of Law.

The Borrower is in compliance with all Applicable Laws in all material respects and the making of the requested Advance will not result in a violation of any Applicable Law, Transaction Document, Governmental Approval, or any other agreement or consent to which the Borrower is a party or any judgment or approval to which it is subject.

4.4.11. Fees and Expenses; Taxes.

(a)                                      Fees. Receipt of payment of all Guaranteed Loan Fees and fees of Independent Consultants then due in connection with the Project.

(b)                                      Taxes; Costs and Periodic Expenses. All required Taxes and all other costs, fees and Periodic Expenses (other than fees payable to Independent Consultants) due in connection with the execution, delivery, filing, registration, recordation or performance of the Transaction Documents or the perfection of the security interests in the Collateral (i) have been paid in full, (ii) are to be paid with the proceeds of the requested Advance or (iii) are to be paid by other arrangements satisfactory to DOE.

4.4.12. ▇▇▇▇▇-▇▇▇▇▇ Requirements.

DOE shall have received a certificate from the Borrower, dated as of the date of the relevant Master Advance Notice, certifying that the Borrower has complied with all ▇▇▇▇▇-▇▇▇▇▇ Requirements including any retroactive compliance. The Borrower has included, in each of its ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contracts, the ▇▇▇▇▇-▇▇▇▇▇ Requirements.

4.4.13. Program Requirements.

The Borrower is in compliance with the Program Requirements; provided, however, that the Borrower shall be required to comply with any changes to U.S. Department of Energy and Federal Financing Bank legal and financial requirements, policies, and procedures applicable to the Title XVII program that occur after the Guarantee Agreement Date only to the extent that such requirements, policies, and procedures and such changes have the force of law.

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4.4.14. Recovery Act Requirements.

DOE has received an Officer’s Certificate of the Borrower, substantially in the form of Exhibit W, dated as of a date not earlier than fifteen (15) Business Days prior to the relevant Requested Advance Date, stating that the Borrower has timely complied in all material respects with its reporting obligations under Section 6.24(a) with respect to the Recovery Act.

4.4.15. Certificates for Each Advance.

DOE has received:

(a)                                 Borrower Certificate. A Master Advance Notice containing certifications of the Borrower regarding (i) the matters required to be certified by it as set forth in this Section 4.4, (ii) reaffirming the certifications delivered pursuant to Section 4.2.19(a), as applicable, and (iii) other matters that DOE reasonably requests.

(b)                                 Sponsor Certificate. An Officer’s Certificate of the Sponsor, regarding the matters required to be certified by it as set forth in this Section 4.4, substantially similar to that delivered pursuant to Section 4.2.19(b) and addressing such other matters that DOE reasonably requests.

(c)                                  Independent Engineer’s Certificate. An Independent Engineer’s Certificate regarding the matters required to be certified by it as set forth in this Section 4.4 in substantially the form attached as Exhibit E.

(d)                                 Total Funding Certificate. A Borrower’s certificate certifying that Total Funding Available is sufficient to pay Total Project Costs (including Debt Service through Project Completion, Guaranteed Loan Fees, Periodic Expenses, any identified Cost Overruns and the funding of the Debt Service Reserve Account).

4.4.16. Construction Budget.

Certification from the Borrower and Independent Engineer that (a) there have been no changes to the Construction Budget since the date of the most recent Master Advance Notice, except for Approved Construction Changes, and (b) the aggregate amounts to be expended for each category of Project Costs do not exceed the aggregate amounts budgeted for such costs in the then-approved Construction Budget.

4.4.17. Independent Engineer’s Report.

Receipt of the Independent Engineer’s Report, certified as being true and accurate and reporting as to the following:

(a)                                      Construction Progress. Evaluation of progress of the construction of the Project in accordance with the Project Plan, the Construction Budget, and the Project Milestone Schedule;

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(b)                                 Expected completion dates. Expectation that the Project will achieve Operational Completion and Project Completion by the Guaranteed Operational Completion Date and Guaranteed Project Completion Date, as applicable;

(c)                                  Other Matters. Other matters reasonably requested by DOE.

4.4.18. Receipt of Evidence.

Each of the following conditions has occurred and DOE has received satisfactory evidence of such occurrence:

(a)                                      Lien Waivers. (i) Each Construction Contractor and any Subcontractors (except those that have individual contract values less than Five Hundred Thousand Dollars ($500,000.00), but not to exceed Ten Million Dollars ($10,000,000) in the aggregate) have unconditionally and irrevocably waived and released all Liens, statutory or otherwise, that it may have or acquire on any portion of the Collateral or the Project with respect to work performed prior to the last submission for payment; (ii) each Construction Contractor and any Subcontractors (except those that have individual contract values less than Five Hundred Thousand Dollars ($500,000.00), but not to exceed Ten Million Dollars ($10,000,000) in the aggregate) have irrevocably waived and released all Liens, statutory or otherwise, that it may have or acquire on any portion of the Collateral or the Project with respect to work performed subsequent to the last submission for payment, conditioned only on receipt of payment for such work; and (iii) all unpaid balances that are due or unsettled claims with any Construction Contractor or any Subcontractor, if any, have been fully paid, other than any such claims that qualify under clause (iii) of the definition of Permitted Liens.

(b)                                      Title Continuation. DOE has received a a pending disbursements endorsement to the Title Policy in the form of attached Exhibit J (or such other form as may be reasonably acceptable to DOE) insuring as of the date of the relevant Master Advance Notice that Borrower owns, as applicable, good and marketable fee title, a valid leasehold interest or a valid easement in and to each element of the Project Site and that the lien of the Deed of Trust is a first and prior lien upon such Real Property as security for the Secured Obligations pursuant to the terms of this Loan Guarantee Agreement, subject only to the Permitted Liens.

(c)                                       Prime Contractor Indemnity. The applicable Construction Contractor has agreed to indemnify DOE, pursuant to a written agreement in form and substance satisfactory to DOE in its reasonable discretion, with respect to any Lien claims that may be made by any Subcontractor of such Construction Contractor from whom any lien waiver was not delivered to DOE pursuant to clauses (i) and (ii) of Section 4.4.18(a). For the avoidance of doubt, such Construction Contractor indemnity shall be required with respect to Lien claims by any Subcontractor from whom a lien waiver is not required to be delivered to DOE under the terms of Section 4.4.18(a) because the applicable contract value is less than Five Hundred Thousand Dollars ($500,000.00).

4.4.19. Subordination Agreements.

DOE has received each of the subordination agreements that Borrower is required to deliver pursuant to Section 6.19.

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4.4.20. Additional Documents.

DOE has received such other documents, certifications, or consents relating to the Project, any Borrower Entity, any Major Project Participant, or the matters contemplated by the Transaction Documents that DOE reasonably requests.

4.4.21. Cash Grant Eligibility and Cash Grant Opinion. If a notice described in Section 6.1.9 hereof shall have been provided to DOE at any time since the immediately preceding Advance Date, DOE shall have received:

(a)                                      An Officer’s Certificate from the Sponsor dated as of the date of the relevant Master Advance Notice and certifying (i) as to those factual matters (other than factual matters described in Section 4.4.21(a)(ii) hereof) as to which the Sponsor is required to make a representation under the cash grant opinion required to be provided pursuant to Section 4.4.21(d)  hereof, and which will be relied upon in such opinion, substantially in the form of the corresponding certificate delivered on the Guarantee Agreement Date except to the extent that (A) counsel to the Sponsor reasonably requests changes; (B) the relevant facts or law (including administrative interpretations thereof) have, in the good faith opinion of DOE or DOE’s counsel, changed; (C) DOE or DOE’s counsel requests in good faith reasonable changes to correct errors or omissions in the corresponding certificate delivered on the Guarantee Agreement Date, determined in their reasonable judgment; (D) the scope of the conclusions in the cash grant opinion to be delivered differ from those of the corresponding opinion on the Guarantee Agreement Date (taking into account all of the requirements as to reasonableness and otherwise with respect to such opinion in Section 4.4.21(d)); or (E) as the Sponsor, DOE and their respective counsel shall agree, and (ii) that the Projected Cash Grant Basis is not materially less than described in the cost eligibility study report delivered pursuant to Section 4.1.7(c)(i) hereof.

(b)                                      An Officer’s Certificate from SunPower dated as of the date of the relevant Master Advance Notice and certifying as to factual matters as to which SunPower is required to make a representation under the cash grant opinion required to be provided pursuant to Section 4.4.21(d) hereof, and which will be relied upon in such opinion, substantially in the form of the corresponding certificate delivered on the Guarantee Agreement Date except to the extent that (i) counsel to SunPower reasonably requests changes; (ii) the relevant facts or law (including administrative interpretations thereof) have, in the good faith opinion of DOE or DOE’s counsel, changed; (iii) DOE or DOE’s counsel requests in good faith reasonable changes to correct errors or omissions in the corresponding certificate delivered on the Guarantee Agreement Date, determined in their reasonable judgment; (iv) the scope of the conclusions in the cash grant opinion to be delivered differ from those of the corresponding opinion on the Guarantee Agreement Date (taking into account all of the requirements as to reasonableness and otherwise with respect to such opinion in Section 4.4.21(d)); or (v) as SunPower, DOE and their respective counsel shall agree.

(c)                                       An Officer’s Certificate from the Borrower dated as of the date of the relevant Master Advance Notice and certifying as to factual matters as to which the Borrower is required to make a representation under the cash grant opinion required to be provided pursuant to Section 4.4.21(d) hereof, and which will be relied upon in such opinion, substantially in the form of the corresponding certificate delivered on the Guarantee Agreement Date except to the extent

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that (i) counsel to the Borrower reasonably requests changes; (ii) the relevant facts or law (including administrative interpretations thereof) have, in the good faith opinion of DOE or DOE’s counsel, changed; (iii) DOE or DOE’s counsel requests in good faith reasonable changes to correct errors or omissions in the corresponding certificate delivered on the Guarantee Agreement Date, determined in their reasonable judgment; (iv) the scope of the conclusions in the cash grant opinion to be delivered differ from those of the corresponding opinion on the Guarantee Agreement Date (taking into account all of the requirements as to reasonableness and otherwise with respect to such opinion in Section 4.4.21(d)); or (v) as the Borrower, DOE and their respective counsel shall agree.

(d)                                 DOE shall have received a cash grant opinion dated as of the date of the relevant Master Advance Notice from tax counsel reasonably satisfactory to DOE, in form satisfactory to DOE and in substance reasonably satisfactory to DOE as to the matters discussed in the cash grant opinion provided pursuant to Section 4.1.12 hereof, relying solely upon, with respect to factual matters, (i) the Transaction Documents, (ii) the Merger Documents, (iii) the Independent Engineer Report, and (iv) the items delivered to DOE pursuant to Sections 4.1.7(c)(i), 4.4.21(a), 4.4.21(b), and 4.4.21(c) hereof, and subject to qualifications, assumptions, representations and exceptions reasonably satisfactory to DOE, that the Project should qualify for Cash Grants in amounts not less than, and by the dates, set forth in Exhibit T.

4.4.22. CEQA Litigation Support Instruments. Unless the Settlement has occurred in a manner satisfactory to DOE, DOE shall have received (a) satisfactory evidence, including the Borrower’s certification that any CEQA Litigation Support Instruments have been issued in the CEQA Support Required Amount and (b) if the CEQA Litigation Support Instruments include a Total Guarantee being delivered, or otherwise amended or modified, with respect to such Advance, a legal opinion, in form and substance satisfactory to the Collateral Agent, regarding the due execution, authorization, delivery and enforceability of the Total Guarantee; provided that, if the Total Guarantee guarantees all the Secured Obligations, then such legal opinion shall only be issued on the date of the issuance of the Total Guarantee and no bring-down of such legal opinion shall be required prior to each Advance so long as the Total Guarantee continuously remains in full force and effect.

4.4.23. CEQA Litigation Support Instruments. Unless the Settlement has occurred, DOE shall have received fully executed originals of one or more CEQA Litigation Support Instruments in the aggregate amount of not less than the CEQA Support Required Amount.

SECTION 4.5.               Semi-Annual Conditions Precedent to Advances.

The obligation of DOE to approve each Advance (other than any Advances occurring on or prior to the six (6) month anniversary of the Guarantee Agreement Date) is subject to the prior satisfaction (or waiver), as determined by DOE, of each of the following conditions precedent (and of any deliverable, as to its form and substance) as of the most recent Semi-Annual Approval Date:

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4.5.1. Cash Grant Eligibility.

(a)                                 An Officer’s Certificate from the Sponsor dated as of the most recent Semi- Annual Approval Date and certifying (i) as to those factual matters (other than factual matters described in Section 4.5.1(a)(ii) hereof) as to which the Sponsor is required to make a representation under the cash grant opinion required to be provided pursuant to Section 4.5.2  hereof, and which will be relied upon in such opinion, substantially in the form of the corresponding certificate delivered on the Guarantee Agreement Date except to the extent that (A) counsel to the Sponsor reasonably requests changes; (B) the relevant facts or law (including administrative interpretations thereof) have, in the good faith opinion of DOE or DOE’s counsel, changed; (C) DOE or DOE’s counsel requests in good faith reasonable changes to correct errors or omissions in the corresponding certificate delivered on the Guarantee Agreement Date, determined in their reasonable judgment; (D) the scope of the conclusions in the cash grant opinion to be delivered differ from those of the corresponding opinion on the Guarantee Agreement Date (taking into account all of the requirements as to reasonableness and otherwise with respect to such opinion in Section 4.5.2); or (E) as the Sponsor, DOE and their respective counsel shall agree, and (ii) that the Projected Cash Grant Basis is not materially less than described in the cost eligibility study report delivered pursuant to Section 4.1.7(c)(i) hereof.

(b)                                 An Officer’s Certificate from SunPower dated as of the most recent Semi-Annual Approval Date and certifying as to factual matters as to which SunPower is required to make a representation under the cash grant opinion required to be provided pursuant to Section 4.5.2  hereof, and which will be relied upon in such opinion, substantially in the form of the corresponding certificate delivered on the Guarantee Agreement Date except to the extent that (i) counsel to SunPower reasonably requests changes; (ii) the relevant facts or law (including administrative interpretations thereof) have, in the good faith opinion of DOE or DOE’s counsel, changed; (iii) DOE or DOE’s counsel requests in good faith reasonable changes to correct errors or omissions in the corresponding certificate delivered on the Guarantee Agreement Date, determined in their reasonable judgment; (iv) the scope of the conclusions in the cash grant opinion to be delivered differ from those of the corresponding opinion on the Guarantee Agreement Date (taking into account all of the requirements as to reasonableness and otherwise with respect to such opinion in Section 4.5.2); or (v) as SunPower, DOE and their respective counsel shall agree.

(c)                                  An Officer’s Certificate from the Borrower dated as of the most recent Semi- Annual Approval Date and certifying as to factual matters as to which the Borrower is required to make a representation under the cash grant opinion required to be provided pursuant to Section 4.5.2 hereof, and which will be relied upon in such opinion, substantially in the form of the corresponding certificate delivered on the Guarantee Agreement Date except to the extent that (i) counsel to the Borrower reasonably requests changes; (ii) the relevant facts or law (including administrative interpretations thereof) have, in the good faith opinion of DOE or DOE’s counsel, changed; (iii) DOE or DOE’s counsel requests in good faith reasonable changes to correct errors or omissions in the corresponding certificate delivered on the Guarantee Agreement Date, determined in their reasonable judgment; (iv) the scope of the conclusions in the cash grant opinion to be delivered differ from those of the corresponding opinion on the Guarantee Agreement Date (taking into account all of the requirements as to reasonableness and

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otherwise with respect to such opinion in Section 4.5.2); or (v) as the Borrower, DOE and their respective counsel shall agree.

4.5.2. Cash Grant Opinion.

DOE shall have received a cash grant opinion dated as of the most recent Semi-Annual Approval Date from tax counsel reasonably satisfactory to DOE, in form satisfactory to DOE and in substance reasonably satisfactory to DOE as to the matters discussed in the cash grant opinion provided pursuant to Section 4.1.12 hereof, relying solely upon, with respect to factual matters, (a) the Transaction Documents, (b) the Merger Documents, (c) the Independent Engineer Report, and (d) the items delivered to DOE pursuant to Sections 4.1.7(c)(i), 4.5.1(a), 4.5.1(b), and 4.5.1(c) hereof, and subject to qualifications, assumptions, representations and exceptions reasonably satisfactory to DOE, that the Project should qualify for Cash Grants in amounts not less than, and by the dates, set forth in Exhibit T.

SECTION 4.6.               Determination of Satisfaction of Conditions Precedent.

The satisfaction of any condition precedent to the Guarantee Agreement Date or to the making of any Advance or any Quarterly Approval Date shall be determined by DOE, and it shall be entitled (but not required) to consult with the Independent Engineer or any of its other Independent Consultants in making such determinations.

ARTICLE 5
REPRESENTATIONS AND WARRANTIES

The Borrower makes all of the following representations and warranties to and in favor of DOE as of (i) the Guarantee Agreement Date, (ii) each Quarterly Approval Date, (iii) each Advance Date and (iv) the Project Completion Date, except as such representations and warranties relate to an earlier date and all of these representations and warranties shall survive the Guarantee Agreement Date:

SECTION 5.1.               Organization.

The Borrower (i) is a limited liability company organized, validly existing and in good standing under the laws of the State of Delaware, (ii) is duly qualified to do business in the State of 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 (A) own or hold under lease and operate the property it purports to own or hold under lease; (B) carry on its business as now being conducted and as proposed to be conducted in respect of the Project; (C) incur Indebtedness and create Liens on all and any of its Properties; and (D) execute, deliver, perform and observe the terms and conditions of each of the Transaction Documents to which it is a party.

SECTION 5.2.               Authorization; No Conflict.

The Borrower has duly authorized, executed and delivered the Transaction Documents to which it is a party, and neither its execution and delivery thereof nor its consummation of the

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transactions contemplated hereby or thereby nor its compliance with the terms hereof or thereof does or will (i) contravene its Organizational Documents or any Applicable Laws, (ii) contravene or result in any breach or constitute any default under any Governmental Judgment, (iii) 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 Properties, under any agreement or instrument to which it is a party or by which it or any of its Properties may be bound, except for any Permitted Liens or (iv) require the consent or approval of any Person other than the Required Approvals and any other consents or approvals that have been obtained, which are in full force and effect.

SECTION 5.3.               Legality; Validity; Enforceability.

Each Transaction Document, each of the CEQA Litigation Support Instruments and each of the NRG Cash Grant Shortfall Security and the SunPower Cash Grant Shortfall Security is a legal, valid and binding obligation of each party thereto, 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.

SECTION 5.4.               Capitalization.

All of the Equity Interests of the Borrower have been duly authorized, validly issued, are fully paid and non-assessable and are owned by the Holding Company, free and clear of all Liens other than Liens created under the Equity Pledge Agreement. After giving effect to the condition precedent set forth in Section 4.1.17, there are no outstanding options or rights for conversion into or acquisition, purchase or transfer of Equity Interests of the Borrower or any agreements or arrangements for the issuance by the Borrower of additional Equity Interests. After giving effect to the condition precedent set forth in Section 4.1.17, the Borrower does not have outstanding (i) any securities convertible into or exchangeable for its Equity Interests or (ii) 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, its Equity Interests.

SECTION 5.5.               Title.

The Borrower owns and has valid legal and beneficial title to, or a valid leasehold interest in, the Project Site and the personal property and other assets and revenues of the Borrower on which it purports to grant Liens pursuant to the Security Documents, in each case free and clear of any Lien of any kind, except for Permitted Liens.

SECTION 5.6.               Real Property.

(a)                                 Each Lease for any portion of the Project Site is valid and subsisting; neither the Borrower nor, to the knowledge of Borrower, the applicable Project Participant is in default in any material respect under any such Lease, and no event has occurred which, with the giving of any applicable notice or passage of time or both, would result in such a default; and the Borrower enjoys peaceful and undisturbed possession of the portion of the Project Site that is the subject of any such Lease and the right to continue to enjoy such possession during the time when such Property is necessary or desirable for the development, construction, ownership, operation or maintenance of the Project subject to any Permitted Liens.

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(b)                                      Each easement used in connection with the Project is valid and subsisting; neither the Borrower nor, to the knowledge of Borrower, the applicable Project Participant is in default in any material respect under any such easement, and no event has occurred which, with the giving of any applicable notice and passage of time, could result in such a default; and the Borrower enjoys peaceful and undisturbed use of the portion of the real property that is the subject of any such easement and the right to continue to enjoy such use during the time when any such easement is necessary or desirable for the development, construction, ownership, operation or maintenance of the Project subject to any Permitted Liens.

(c)                                       No condemnation or eminent domain proceeding has been commenced with respect to all or any portion of any Real Property or for the relocation of roadways providing access to such Real Property except, in each case, as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

(d)                                      Except for those disclosed in the Title Policy approved by DOE, there are no current or pending special or other assessments (other than for ad valorem taxes) for public improvements or otherwise affecting any Real Property that would reasonably be expected to result in a Material Adverse Effect.

(e)                                       The Borrower has not suffered, permitted or initiated the joint assessment of any Real Property with any other real property constituting a separate tax lot. The Real Property has been legally subdivided, and for all purposes the Real Property may be mortgaged, conveyed and otherwise dealt with as separate legal lots or parcels; provided that, easement parcels shall not be required to be separate legal lots or parcels.

(f)                                        There are no outstanding options to purchase or rights of first refusal or restrictions on transferability affecting any of the Borrower’s Real Property (other than those restrictions on transfer set forth in the Financing Documents or the Land Lease Agreement).

(g)                                       Other than as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, the Borrower reasonably expects, as and when necessary, for the development, construction, ownership, operation and maintenance of the Project, to have all utilities available at the title lines of the Project Site, and to the extent the same pass through adjoining private land, are located within valid public or unencumbered private easements which inure to the benefit of the Real Property or to the benefit of the Borrower and its successors and assigns and run with the land.

(h)                                      Other than as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, the Borrower reasonably expects, as and when necessary for the development, construction, ownership, operation and maintenance of the Project, to have all roads completed and dedicated to public use and accepted by all Governmental Authorities or the subject of access easements which inure to the benefit of the Real Property or to the benefit of the Borrower and its successors and assigns and run with the land.

SECTION 5.7.               Security Interests; Liens.

(a)                                      Pursuant to the Security Documents, the Collateral Agent (for the benefit of the Secured Parties) has a perfected first priority Lien in the Collateral, subject only to Permitted

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Liens. Such security interest in the Collateral is and, with respect to any subsequently acquired Property, when so subsequently acquired, will be superior and prior to the rights of all third Persons (other than Permitted Liens) now existing or hereafter arising, whether by way of deed of trust, mortgage, Lien, security interests, encumbrance, assignment or otherwise. All documents and instruments, including the Deeds of Trust and financing statements, have been recorded or filed for record in such manner and in such places as are required and all other action as is necessary or desirable have been taken to establish and perfect the Collateral Agent’s Lien in and to the Collateral (for the benefit of the Secured Parties) to the extent contemplated by the Security Documents. All Taxes and filing fees and Periodic Expenses that are due and payable in connection with the execution, delivery or recordation of the Deed of Trust and the financing statements, or the execution, issuance and delivery of the FFB Promissory Notes, or the mortgaging of the mortgaged property under the Deed of Trust, have been paid.

(b)                                      Except for Permitted Liens, the Borrower has not created or suffered to exist, and is not under any obligation to create, and has not entered into any transaction or agreement that would result in the imposition of, any Lien upon any of its revenues, properties or assets. There are no Liens on the Equity Interests of the Borrower, except for Permitted Liens.

SECTION 5.8.               Required Approvals.

(a)                                      All Required Approvals required for the Project as of each date on which this representation is made are listed on Part I of Schedule 4.1.6, 4.2.5, 4.3.3 or 4.4.8 (as such Schedules exist on each such date) and:

(i)                                              DOE has received fully executed copies of each of the Required Approvals listed on Part I of such schedules;

(ii)                                           the copies of such Required Approvals delivered to DOE as of the date on which this representation is made are true, correct and complete copies of such Required Approvals (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters);

(iii)                                        no term or condition of any of such Required Approvals has been amended from the form delivered to DOE as of the date on which this representation is made;

(iv)                                       each such Required Approval has been validly issued, is in full force and effect and Non-Appealable;

(v)                                          all conditions precedent to the effectiveness of any such Required Approval have been satisfied (other than conditions not required to be satisfied as of the date on which this representation is made that do not require discretionary approval of a third party); and

(vi)                                       the Borrower has no reason to believe that any of such Required Approvals shall be revoked.

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(b)                                      All Required Approvals not required for the Project as of the date on which this representation is made are listed on Part II of Schedule 4.1.6, 4.2.5, 4.3.3 or 4.4.8 (as such Schedules exist on each such date), respectively, and the Borrower has no reason to believe that it or any other Borrower Entity or, to the Borrower’s Knowledge, any relevant Major Project Participant (as applicable) shall fail to obtain the Required Approvals set forth on Part II of such schedule in the ordinary course free of any unduly burdensome conditions or requirements at such time or times as may be required under the Transaction Documents or as is otherwise necessary to avoid any material delay in, or impairment to, the performance of the transactions as contemplated by the Transaction Documents.

(c)                                       The Required Approvals described in Section 5.8(a) are all of the Required Approvals that are necessary or required to be obtained as of the Guarantee Agreement Date and as of each date thereafter that this representation is made, as applicable, under Applicable Law or any agreement applicable to, or binding on, any Borrower Entity or any of their respective Properties or, to the Borrower’s Knowledge, any Project Participant or any of their respective Properties.

(d)                                      The Borrower, each Borrower Entity and, to the Borrower’s Knowledge, each other Major Project Participant is in compliance in all material respects with all Required Approvals that are, as of each date of this representation, required to be obtained by or are, as of the date of this representation, otherwise applicable to such Person.

SECTION 5.9.               Insurance.

All Required Insurance that is required to be in full force and effect as of the date this representation is made is in full force and effect.

SECTION 5.10.   Intellectual Property.

(a)                                      The Borrower owns or holds or can obtain at the appropriate time on terms that are commercially reasonable for the solar energy industry a valid and enforceable license, permit, certificate, franchise, or other authorization or right to use (subject to Bankruptcy Laws and general principles of equity regardless of whether enforcement is considered in a proceeding at law or in equity) the Technology and Intellectual Property Rights necessary to (i) design, construct, operate, use and maintain the Project in a commercially reasonable manner and as contemplated under the Major Project Documents in connection with the Project, and (ii) exercise its rights and perform its Obligations under the Major Project Documents and the EPC Contract in connection with the Project.

(b)                                      The Technology and the Intellectual Property Rights licensed to Borrower under the EPC Contract and the use thereof by Borrower in accordance with the terms of the EPC Contract does not infringe upon or misappropriate the Intellectual Property Rights or other rights of any other Person, and (ii) no process, method, substance, part or other material contemplated under the Major Project Documents or otherwise employed by the Borrower infringes, or will infringe, upon or misappropriates, or otherwise violates, the Intellectual Property Rights of any other Person. The Borrower shall indemnify DOE for the full amount of any damages from claims that may be asserted (whether or not validly asserted) against DOE by any Person in

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connection with the breach, misappropriation, or other violation of the Intellectual Property Rights of such Person in connection with the Project.

SECTION 5.11.        Litigation, Labor Disputes.

(a)                                      Except as set forth on Schedule 4.1.18, there is no pending or, to the Borrower’s Knowledge, threatened (in writing) Action that relates to (i) the Project or to any transaction contemplated by any of the Transaction Documents, (ii) the legality, validity or enforceability of any of the Transaction Documents, or (iii) any Borrower Entity or, to the Borrower’s Knowledge, any other Major Project Participant is a party to, that (excluding any Action contemplated under clause (i) or (ii) above) either singly or in the aggregate, has, or could reasonably be expected to have, a Material Adverse Effect.

(b)                                      The Borrower has not failed to observe, in any material respect, any Governmental Judgment that has, or could reasonably be expected to have, a Material Adverse Effect. There is no injunction, writ, or preliminary restraining order of any nature issued by a Governmental Authority directing that any transactions contemplated by any of the Transaction Documents not be consummated as herein or therein provided.

(c)                                       No Governmental Judgment has been entered against the Borrower or any Borrower Entity that has, or could reasonably be expected to have, a Material Adverse Effect.

(d)                                      There are no strikes, slowdowns or work stoppages by the employees of any of the Borrower or, to the Borrower’s Knowledge, any Major Project Participant on-going or threatened in writing that have caused or could reasonably be expected to cause a Material Adverse Effect.

(e)                                       None of the Actions set forth on Schedule 4.1.18 has or could reasonably be expected to have a Material Adverse Effect.

SECTION 5.12.        Tax.

(a)                                      The Borrower has filed all material tax returns required by Applicable Laws to be filed by it and has paid (i) all income Taxes payable by it 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 and permitted by the Applicable Regulations).

(b)                                      Except for those items set forth on Schedule 5.12(b), no withholding Taxes are payable by the Borrower to any Governmental Authority in connection with any amounts payable by the Borrower under or in respect of the Financing Documents.

(c)                                       No Borrower Compliance Entity owes any delinquent Indebtedness to any Governmental Authority of the U.S., including Tax liabilities, unless the delinquency has been resolved with the appropriate Governmental Authority in accordance with the standards of the Debt Collection Improvement Act.

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SECTION 5.13.        Financial Statements.

Each of the Financial Statements of the Borrower and the Sponsor delivered to DOE has been prepared in accordance with GAAP and presents fairly, in all material respects, the financial condition of the Borrower or the Sponsor (as the case may be) as of the respective dates of the balance sheets included therein and the results of operations of the Borrower or the Sponsor for the respective periods covered by the statements of income included therein. Except as reflected in such Financial Statements, there are no material liabilities or obligations of the Borrower or the Sponsor, as applicable, of any nature whatsoever for the period to which such Financial Statements relate that are required to be disclosed in accordance with GAAP. Since the date of delivery of such Financial Statements, neither the Borrower nor the Sponsor has incurred or assumed any material liabilities or obligations that would be required to be disclosed in accordance with GAAP.

SECTION 5.14.        Business; Contracts; Powers of Attorney; Contingency Fees.

(a)                                      The Borrower has not conducted any business, other than the business contemplated by the Transaction Documents and such other business as may be related to the Project.

(b)                                      The Borrower is not a party to or bound by any contract other than those contracts permitted under the Financing Documents.

(c)                                       Except as provided for in the Financing Documents, the Borrower has not executed and delivered any powers of attorney.

(d)                                      No Borrower Entity has entered into any agreements with financial and/or other professional advisors that provide for payment of a contingent fee computed as a percentage of the amount of the FFB Commitment.

SECTION 5.15.        Transactions with Affiliates.

Except (i) as set forth on Schedule 5.15 and (ii) for Permitted Affiliate Transactions, the Borrower is not a party to any contract or agreement with, and does not have any other loan commitment to, any Borrower Affiliate or SunPower. The Borrower is not a party to any agreement requiring the payment of development fees, the Advances, the Guaranteed Loans or the Maximum Capitalized Interest Amount (other than fees payable to DOE and FFB in accordance with the Financing Documents).

SECTION 5.16.        No Additional Fees.

The Borrower has not 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.

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SECTION 5.17.        Investments; Subsidiaries.

The Borrower has not made any Investments other than Permitted Investments. The Borrower has no subsidiaries and does not beneficially own any Equity Interests of any other Person.

SECTION 5.18.        Sufficiency of Project Documents.

(a)                                      All fee, leasehold, easement and other real property interests, utility and other services, means of transportation, facilities, and all other materials and rights that are or can reasonably be expected to be necessary for the development, construction, ownership, operation and maintenance of the Project in accordance with Applicable Laws and the Transaction Documents have been procured under the Project Documents or, at the time such rights or materials are required, will be commercially available to the Project at the Project Site on terms consistent with the Construction Budget and the Base Case Projections and, to the extent appropriate, arrangements therefor have been made on terms consistent with the Construction Budget and the Base Case Projections for all such interests, services, means of transportation, facilities, materials and rights.

(b)                                      As of any date on which this representation is made or deemed made, DOE has received a true, complete and correct copy of each of the Project Documents and any Support Instrument related thereto (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) that is in effect as of such date. Since the Guarantee Agreement Date, none of the Project Documents or Support Instruments have been amended or modified, except in accordance with this Loan Guarantee Agreement. Prior to the execution of each such Project Document, the Borrower believed, after having made a reasonable investigation with respect thereto, that each party to each such Project Document or Support Instrument would be able to carry out its Obligations in accordance therewith and nothing has come to the attention of the Borrower to cause it to believe that any such Person will not be able to carry out its Obligations in accordance therewith.

(c)                                       As of any date on which this representation is made or deemed made, (i) each Project Document and any Support Instrument related thereto that is necessary or desirable in connection with the construction, completion, operation or maintenance of the Project as of such date is in full force and effect and all conditions precedent to the Obligations of the respective parties under the Project Documents required to be performed as of such date have been satisfied (or, where required, with the written consent of DOE, waived); (ii) no event has occurred that gives the Borrower, or, to the Borrower’s Knowledge, any Project Participant, the right to terminate any Project Document or any related Support Instrument; (iii) the Borrower is not in default of any material term or provision of any Project Document or related Support Instrument; and (iv) to the Borrower’s Knowledge, no Project Participant is in default of any material term or provision of any Project Document or related Support Instrument.

(d)                                      (i) All representations, warranties and other factual statements made by the Borrower or any other Borrower Entity in any Project Document to which such entity is a party are true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality,” “Material Adverse Effect” or a similar qualifier, in which case it shall be true and correct in all respects) as of any date on which this representation

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or warranty is made, except to the extent such representation or warranty is made only as of a specific date or time (in which event such representation or warranty shall be true and correct as of such date or time); and (ii) to the Borrower’s Knowledge, all representations, warranties and other factual statements made by each Project Participant in each Project Document (other than the Borrower and the Borrower Entities) are true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality,” “Material Adverse Effect” or a similar qualifier, in which case it shall be true and correct in all respects) as of any date on which this representation or warranty is made, except to the extent such representation or warranty is made only as of a specific date or time (in which event such representation or warranty shall be true and correct as of such date or time).

(e)                                       The Borrower believes that it is technically feasible for the Project Facility to be constructed, completed, operated and maintained so as to fulfill in all material respects the design specifications and requirements contained in the Application.

SECTION 5.19.        Project Milestone Schedule and Construction Budget; Operating Forecasts and Base Case Projections.

(a)                                      As of the time at which this representation is made or deemed made (or in the case of the making of this representation solely on the Guarantee Agreement Date with respect to the Base Case Projections, as of the time such Base Case Projections were delivered pursuant to Section 4.1.2(a)(vii)), the Project Plans, the Construction Budget, the Financial Plan, the Project Milestone Schedule and the Base Case Projections, as amended or supplemented by Approved Construction Changes, (i) are complete and based on reasonable assumptions, (ii) are consistent with the provisions of the Project Documents, (iii) have been prepared in good faith and with due care and (iv) fairly represent the Borrower’s expectation as to the matters covered thereby.

(b)                                      The Project Milestone Schedule, as amended or supplemented by Approved Construction Changes, accurately specifies in summary form the work that each Construction Contractor proposes to complete on or before the deadlines specified therein.

(c)                                       As of the Guarantee Agreement Date, the Construction Budget represents the Borrower’s best estimate of Total Project Costs anticipated to be incurred to construct the Project Facility in the manner contemplated by the Transaction Documents. Since the Guarantee Agreement Date, the Construction Budget has not been amended or changed in any material respect other than with respect to Approved Construction Changes.

(d)                                      As of the Guarantee Agreement Date, the Advance Schedule represents the Borrower’s best estimate of the expected dates and amounts of proposed Advances and Equity Contributions to fund the Borrower’s Project Costs. Since the Guarantee Agreement Date, the Advance Schedule has not been amended or changed in any material respect other than with respect to Approved Construction Changes.

(e)                                       The Borrower’s good faith estimate and belief as of each date this representation is made is that (i) Project Completion will occur no later than the Guaranteed Project Completion Date and (ii) Total Funding Available is sufficient to achieve Project Completion.

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SECTION 5.20.        Sufficient Funds.

Total Funding Available will be sufficient to achieve Project Completion.

SECTION 5.21.        Use of Proceeds.

The Borrower has used and shall continue to use the proceeds of all Advances in accordance with the terms and conditions of all applicable Financing Documents.

SECTION 5.22.        Fees and Enforcement.

Other than amounts that have been paid in full or with respect to which arrangements satisfactory to DOE have been made, no fees or Taxes, including documentary, stamp, transaction, registration, or similar Taxes are required to have been paid to ensure the legality, validity, enforceability, priority or admissibility in evidence in applicable jurisdictions of any Transaction Documents.

SECTION 5.23.        Compliance with Applicable Laws.

(a)                                 The Borrower is in compliance with, and has conducted (or caused to be conducted) its business and operations and the business and operations of the Project in compliance with all Environmental Laws and all other Applicable Laws in all material respects.

(b)                                 No notices of violation of any Applicable Law have been issued, entered or received by the Borrower that have not been cured with no remaining liability to the Borrower, other than those that are immaterial.

SECTION 5.24.        Environmental Laws.

(a)                                      All Required Approvals for the Project relating to (i) air emissions, (ii) discharges to surface water or ground water, (iii) noise emissions, (iv) solid or liquid waste disposal, or (v) the use, generation, storage, transportation or disposal of toxic or Hazardous Substances or wastes (vi) natural resources (including threatened and endangered species) or (vii) other environmental, health or safety matters have been obtained, and the Borrower has not received, nor is the Borrower aware of any facts or circumstances that could reasonably be expected to result in, any complaint, order, directive, claim, citation or notice by any Governmental Authority that is, or could reasonably be expected to become material and relates to its then-existing obligations with respect to the foregoing.

(b)                                      Except as set forth on Schedule 5.24(b), none of the Borrower, any Borrower Entity nor, to the Borrower’s Knowledge, any other Person, has used, released, discharged, generated, manufactured, produced, stored, or disposed of in, on, under or about the Project Facility or transported thereto or therefrom, any Hazardous Substances that could reasonably be expected to form the basis of an Environmental Claim or cause the Project to be subject to any restrictions arising under Environmental Laws or otherwise result in material harm to human health or safety, natural resources or the environment.

(c)                                       Except as set forth on Schedule 4.1.18 (as in effect on the Guarantee Agreement Date, as may be updated with DOE’s prior written consent), there is no Environmental Claim pending or, to the Borrower’s Knowledge, threatened against the Borrower or any Borrower

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Entity, or against any Person whose liability for any Environmental Claim the Borrower or any Borrower Entity has retained or assumed either contractually or by operation of law. There is not and has not been any condition, circumstance, action, activity or event with respect to the Project, the Borrower or, to the Borrower’s Knowledge, the Project Site that could reasonably be expected to form the basis of any violation of any Environmental Law or otherwise result in material harm to human health or safety, or natural resources or the environment.

(d)                                      The Borrower has provided to DOE all assessments, reports, data, results of investigations or audits, and other information that is in the possession of or reasonably available to the Borrower regarding environmental matters pertaining to the Project (other than those documents prepared directly by DOE pursuant to the National Environmental Policy Act), or the environmental condition of the Project or Project site, or the compliance (or noncompliance) by the Borrower or any Borrower Entity with any Environmental Laws.

SECTION 5.25.        U.S. Government Requirements.

(a)                                      ▇▇▇▇▇-▇▇▇▇▇ Requirements. The Borrower has complied with all ▇▇▇▇▇-▇▇▇▇▇ Requirements, including any retroactive compliance, and included in each of its ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contracts, the ▇▇▇▇▇-▇▇▇▇▇ Requirements.

(b)                                      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.

(c)                                       U.S. Preference. The Borrower has used good faith efforts to maximize U.S.- manufactured content in Project facilities and components, taking into account availability, cost, technical performance, reliability, efficiency, warranty coverage and related commercial terms.

(d)                                      Foreign Asset Control Regulations. Neither the making of any Advances nor the use of the proceeds thereof by the Borrower or at the direction of the Borrower will violate the Foreign Asset Control Regulations.

(e)                                       Prohibited Persons.

(i)                                              None of the Borrower Entities or Borrower Entity Controlling Persons is a Prohibited Person. No event has occurred and no condition exists that is likely to result in any Borrower Entity or Borrower Entity Controlling Person becoming a Prohibited Person.

(ii)                                           To the Borrower’s Knowledge, (A) none of the Major Project Participants or Persons that Control a Major Project Participant is a Prohibited Person and (B) no event has occurred and no condition exists that is likely to result in any Major Project Participant or Persons that Control a Major Project Participant becoming a Prohibited Person.

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(f)                                        Anti-Terrorism Order.

(i)                                              Each Borrower Entity and each Borrower Entity Controlling Person, is in compliance with the Anti-Terrorism Order and has not previously violated the Anti- Terrorism Order.

(ii)                                           To the Borrower’s Knowledge, each Major Project Participant and each Person that Controls a Major Project Participant is in compliance with the Anti-Terrorism Order and has not previously violated the Anti-Terrorism Order.

(g)                                       Corrupt Practices Laws; OFAC.

(i)                                              Each Borrower Entity, each Borrower Entity Controlling Person, and each of their respective employees and agents have complied with OFAC and all applicable Corrupt Practices Laws in obtaining any consents, licenses, approvals, authorizations, rights, or privileges with respect to the Project and, otherwise, conduct the Project in compliance with OFAC and all applicable Corrupt Practices Laws. The internal management and accounting practices and controls of each Borrower Entity and each Borrower Entity Controlling Person are adequate to ensure compliance with all Corrupt Practices Laws.

(ii)                                           To the Borrower’s Knowledge, each Major Project Participant, each Person that Controls a Major Project Participant, and each of their respective employees, and agents is in compliance with OFAC and all Corrupt Practices Laws in obtaining any consents, licenses, approvals, authorizations, rights, or privileges with respect to the Project and, otherwise, are conducting all activities in connection with the Project in compliance with OFAC and all applicable Corrupt Practices Laws.

(h)                                      Investment Company Act. The Borrower is not required to register as an “investment company” and it is not “controlled” by a company required to register as an “investment company” under the Investment Company Act.

(i)                                          PUHCA. The Borrower is an “exempt wholesale generator” as defined in the Public Utility Holding Company Act. No Secured Party shall, solely by reason of its ownership or operation of the Project or the Borrower upon the exercise of remedies under the Security Documents (without regard to any other asset or entity owned or controlled by such Secured Party or its Affiliates), become subject to the provisions of 18 C.F.R. §§ 366.2, 366.21, 366.22 or 366.23.

(j)                                         Lobbying. No proceeds of the Advances have been or will be expended by the Borrower or any of its Affiliates to pay any Person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress.

(k)                                      ERISA.

(i)                                              The Borrower does not and has not operated or sponsored any Employee Benefit Plans. The ERISA Affiliates have (A) operated the Pension Plans in compliance with their terms and with all applicable provisions and requirements of the Internal

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Revenue Code, ERISA and other applicable Federal or state laws and (B) performed all their respective obligations under such plans in all material respects.

(ii)                                           No ERISA Event has occurred or is reasonably expected to occur that could reasonably be expected to give rise to any material liability to the Borrower or the ERISA Affiliates.

(iii)                                        Except to the extent required under Section 4980B of the Internal Revenue Code or comparable state law or as properly recognized in the Financial Statements most recently delivered to DOE pursuant to Section 6.1, no Employee Benefit Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of the Borrower or any ERISA Affiliate.

(iv)                                       As of the most recent valuation date for any Pension Plan, (A) the amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually and in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities), has not had and would not reasonably be expected to have a Material Adverse Effect and (B) no Pension Plan has been determined to be in “at risk” status within the meaning of Section 303(i) of ERISA or Section 430(i) of the Code.

(v)                                          The execution and delivery of this Loan Guarantee 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 Internal Revenue Code.

(vi)                                       All liabilities under each Pension Plan are (A) funded to at least the minimum level required by Applicable Law or, if higher, to the level required by the terms governing the Pension Plans (B) provided for or recognized in the Financial Statements most recently delivered to DOE pursuant to Section 6.1 to the extent required by and in accordance with GAAP and (C) estimated in the formal notes to the Financial Statements most recently delivered to DOE pursuant to Section 6.1 to the extent required by and in accordance with GAAP.

(vii)                                    (A) The Borrower is not and will not be a “plan” within the meaning of Section 4975(e) of the Internal Revenue Code, (B) the assets of the Borrower do not and will not constitute “plan assets” within the meaning of Section 3(42) of ERISA and the United States Department of Labor Regulations set forth in 29 C.F.R. 2510.3-101, (C) the Borrower is not and will not be a “governmental plan” within the meaning of Section 3(32) of ERISA and (D) transactions by or with the Borrower are not and will not be subject to state statutes applicable to the Borrower regulating investments of fiduciaries with respect to governmental plans. The Borrower further agrees to deliver to the Loan Servicer such certifications or other evidence of compliance with the provisions of this Section 5.25(k) as the Loan Servicer or DOE may from time to time request.

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SECTION 5.26.        No Judgment Liens; No Indebtedness.

(a)                   The Borrower (i) does not have a judgment lien against any of its property for a debt owed to the United States of America or any other creditor and (ii) does not have any indebtedness owed to the U.S. or any Governmental Authority thereof that is in delinquent status, as the term “delinquent status” is defined in 31 C.F.R. Section 285.13(d), including any Tax liabilities, except to the extent such delinquency has been resolved with the appropriate Governmental Authority in accordance with the standards of the Debt Collection Improvement Act of 1996.

SECTION 5.27.        Insolvency Proceedings; Solvency.

(a)                   The Borrower is not insolvent and is not the subject of any pending, or to the Borrower’s Knowledge, threatened, Insolvency Proceedings.

(b)                   The Borrower is and, upon the incurrence of any Indebtedness under the Financing Documents and after giving effect to the transactions contemplated hereby, will be, solvent.

SECTION 5.28.        No Defaults; Material Adverse Effect.

(a)              No Event of Default or Potential Event of Default has occurred and is continuing. Neither the Borrower nor any Borrower Entity has (i) breached any of its material obligations under any Financing Document or (ii) issued, entered or received any notice of breach of any Financing Document that has not been cured or waived.

(b)              No Material Adverse Effect has occurred or could reasonably be expected to occur.

SECTION 5.29.        Certain Program Requirements.

(a)                   Eligibility. The Project qualifies as an “Eligible Project” under Title XVII and is not a research, development, or demonstration project or a project that employs Commercial Technologies (as defined in the Applicable Regulations) in service in the U.S.

(b)                   U.S. Nexus. The Project will be constructed and operated in the U.S., the employment of the new or significantly improved technology in the Project has the potential to be replicated in other commercial projects in the United States and this technology is or is likely to be available in the United States for further commercial application.

(c)                    Useful Life. The Maturity Date occurs prior to the end of the period equal to the lesser of (i) thirty (30) years or (ii) ninety percent (90%) of the projected useful life of the Project’s major physical assets.

(d)                   No Tax-Exempt Indebtedness. The Guaranteed Loans do not finance or refinance, either directly or indirectly, tax-exempt indebtedness obligations, consistent with the requirements of Section 149(b) of the Internal Revenue Code.

(e)                    Recovery Act Reporting. The Borrower has taken all necessary steps to be in compliance with its reporting obligations under Section 6.24(a) with respect to the Recovery Act.

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SECTION 5.30.        Full Disclosure.

(a)                   Other than Predictive Information, the statements and information of the Borrower contained in any certificate of the Borrower or FFB Document, taken together with all documents, reports or other written information pertaining to the Project, together with all updates of such information from time to time, that have, in each case, been furnished by or on behalf of the Borrower or any other Borrower Entity (including, without limitation, by the Sponsor) to DOE, the Loan Servicer or any Independent Consultant, are true and correct in all material respects and do not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not materially misleading in light of the circumstances in which they were made. For the avoidance of doubt, with respect to the deliverables furnished by the Borrower under Section 4.1.2, the representation contained in this Section 5.30(a) is made as of the date of the Ratings Delivery Package Date only.

(b)                   There is no fact known to the Borrower that has not been disclosed to DOE in writing that could reasonably be expected to be material to DOE’s decision to enter into this Loan Guarantee Agreement or the DOE Guarantee or to DOE’s decision to issue the DOE Guarantee or authorize any Advance or that could otherwise reasonably be expected to have a Material Adverse Effect.

(c)                    All existing documents and agreements known to the Borrower that are material in the context of the Transaction Documents or that have the effect of varying any of the Transaction Documents or the Project have been disclosed to DOE in writing.

SECTION 5.31.        Cash Grant Application.

As of each Cash Grant Application Date, all factual information and the representations of the Borrower set forth in the applicable Cash Grant Application will be true, correct and complete in all material respects. No Federal tax credit under Section 45 or Section 48 of the Internal Revenue Code has been claimed or will be claimed by any Person with respect to any assets or property included in the Project or electricity produced by the Project. As of each Cash Grant Application Date, the Borrower will have made every election that is necessary to claim and apply for the applicable Cash Grant.

SECTION 5.32.        Cash Grant Compliance.

(a)                                      The Borrower will meet the standards for applicant and property eligibility set forth in the Cash Grant Guidance. The Borrower reasonably estimates that the aggregate Cash Grant proceeds will be sufficient to timely repay the Guaranteed Cash Grant Bridge Loan. Such estimate is, as of the Guarantee Agreement Date, (i) based on the Borrower’s good faith reasonable judgment (after due inquiry) as to the best available assumptions as to all factual matters material to such estimates, (ii) has been calculated in good faith and with due care and (iii) fairly represents the Borrower’s best expectations as to the amount of the Cash Grants.

(b)                                      From and after the filing of any Cash Grant Application for the Project, the factual information and the representations of the Borrower set forth in such Cash Grant Application are (i) true, correct and complete in all material respects, (ii) based on the Borrower’s good faith reasonable judgment (after due inquiry) as to the best available

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assumptions as to all factual matters material to the figures set forth therein, (iii) consistent with the provisions of the Financing Documents in all material respects, (iv) prepared in good faith and with due care and (v) fairly represent the Borrower’s good faith reasonable expectations (after due inquiry) as to the matters covered thereby. No federal tax credit has been or shall be claimed by any Person with respect to any asset or property included in the Project or any electricity produced by the Project.

SECTION 5.33.        Ownership by Disqualified Person.

As of the Guarantee Agreement Date and each Cash Grant Application Date, the Borrower is a Delaware limited liability company that is not treated as a corporation for U.S. federal income tax purposes.

SECTION 5.34.        Cargo Preference Act.

To the extent required by the United States Maritime Administration, Borrower is in compliance with the requirements of the Cargo Preference Act of 1954, as amended, and related regulations.

ARTICLE 6
AFFIRMATIVE COVENANTS

The Borrower covenants and agrees that until the date all Secured Obligations (other than inchoate indemnity obligations) are paid in full and the FFB Commitment has terminated, unless DOE waives compliance in writing:

SECTION 6.1.               Information Covenants.

At its own expense the Borrower shall furnish or cause to be furnished to DOE, in each case (x) in unalterable electronic format (except for the financial model, which shall be finished in Excel file format) with a reproduction of the signatures where required and (y) upon request by DOE, in other electronic format, the following items:

6.1.1.    Monthly Reports.

(a)                   Within fifteen (15) Business Days after the end of each month prior to the Project Completion Date, a Construction Progress Report certified by an Authorized Officer of the Borrower and the Independent Engineer as being accurate and complete in all material respects based upon the Borrower’s good faith reasonable estimates of information contained therein and certification that the Project is expected to achieve Operational Completion and Project Completion by the Guaranteed Operational Completion Date and Guaranteed Project Completion Date, as applicable; and

(b)                   Within fifteen (15) Business Days after the end of each month falling after the Operational Completion Date, an Operations Report covering the previous monthly period and certified by an Authorized Officer of the Borrower as being accurate and complete in all material respects based upon the Borrower’s good faith reasonable estimates of information contained therein;

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6.1.2.    Quarterly Financial Statements. Within forty five (45) days after the end of each fiscal quarter of the Borrower:

(a)                            unaudited Financial Statements of the Borrower as at the end of such quarterly period; and

(b)                            a discussion and analysis by a Financial Officer of the Borrower of the business and operations of the Borrower with respect to such quarter, including (A) a statement of all material financial transactions (other than any transactions contemplated under the Transaction Documents) and a report of all transactions involving the Borrower, on the one hand, and on the other hand any other Borrower Entity (other than any such transaction under the O&M Agreement or the Delivery Term Security Maintenance Agreement), (B) for each such quarter that includes all or a portion of the Construction Period, calculations showing the Debt to Equity Ratio and (C) for each such quarter that includes all or a portion of the Operating Period, calculations showing compliance with the requirements of Section 6.16 and certification of such compliance

6.1.3.    Annual Financial Statements and Reports. As soon as available, but in any event within ninety (90) days after the end of each Fiscal Year:

(a)                                      audited Financial Statements of the Borrower for such Fiscal Year, accompanied by a report and opinion of the Borrower’s Accountant to the effect that such Financial Statements present fairly the financial condition, results of operations, shareholder’s equity and cash flows of the Borrower for such Fiscal Year, which report and opinion should be prepared in accordance with GAAP and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit;

(b)                                      a discussion and analysis by management of the Borrower of the Borrower’s business and operations at the end of such Fiscal Year, including with respect to the matters set forth in clause 6.1.2(b) above; and

(c)                                       a report detailing a comparison between the Operating Revenues, Operating Costs and Debt Service projected to be received or paid in such Fiscal Year pursuant to the applicable Operating Budget for such Fiscal Year and the Operating Revenues, Operating Costs and Debt Service actually received or paid in such Fiscal Year.

6.1.4.    Certification by Financial Officer.

Each time Financial Statements of the Borrower are delivered pursuant to clauses 6.1.2(a) and 6.1.3(a) hereof such Financial Statements shall be certified by a Financial Officer of the Borrower (in the case of Financial Statements delivered pursuant to clause 6.1.2(a), in a Quarterly Reporting Certificate, and in the case of Financial Statements delivered pursuant to clause 6.1.3(a) in an Officer’s Certificate of a Financial Officer of the Borrower in the form of Exhibit I-2) as having been prepared in accordance with GAAP on a consistent basis and as fairly presenting in all material respects the financial condition of the Borrower as of the date thereof and the results of operations and cash flows of the Borrower for the periods presented. Such certification also shall include a certification that the Person has made or caused to be made a review of the

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transactions and financial condition of the Borrower during the relevant fiscal period and (i) that other than as set out in such Financial Statements, there are no liabilities or obligations of the Borrower that are required to be presented in such Financial Statements in accordance with GAAP and (ii) that no Event of Default or Potential Event of Default exists, or if such certification cannot be made, the nature and period of existence of such Event of Default or Potential Event of Default and what corrective action the Borrower has taken or proposes to take with respect thereto.

6.1.5.             Quarterly Reporting Package. Within forty five (45) days after the end of each fiscal quarter of each Fiscal Year, each certified by an Officer’s Certificate of the Borrower:

(a)        for each fiscal quarter that includes all or a portion of the Construction Period: (i) a summary construction report, which shall include a detailed assessment of the Project’s performance in comparison with the Construction Budget and Project Milestone Schedule then in effect for such period, including (A) basic data relating to construction of the Project Facility, (B) a description and explanation of any Event of Loss, Actions or other material disputes between the Borrower and any Person and (C) any material non-compliance with any Required Approval then in effect and (ii) an updated Project Milestone Schedule and an updated Construction Budget, reflecting any Approved Construction Changes (or certification that no changes or updates are then required);

(b)        for each fiscal quarter that includes all or a portion of the Operating Period: (i) a summary operating report, which shall include a detailed assessment of the Project’s performance in comparison with the Project Plans then in effect for such period, including basic data relating to the operation of the Project, pricing information, unusual maintenance activity, material casualty losses, material disputes between the Borrower and any Person and material non-compliance with any Governmental Approvals, (ii) an updated Operating Plan for the next four fiscal quarters, an updated Operating Forecast for the next four fiscal quarters, and, if requested by DOE, updated Base Case Projections in form and substance satisfactory to DOE and (iii) upon the request of DOE, an Authorized Officer of the Borrower shall schedule a date to discuss any updated Operating Plan, updated Operating Forecast, updated Base Case Projections and such other matters relating to the Project as DOE reasonably requests; and

(c)        all other items indicated in Section 6.1.2 as being part of the Quarterly Reporting Package, together with a Quarterly Reporting Certificate;

6.1.6.             Financial Statements of Sponsor.

Promptly after the same become available, unaudited quarterly and audited annual Financial Statements of the Sponsor prepared in accordance with GAAP and certified by a Financial Officer of the Sponsor pursuant to an Officer’s Certificate in the form of Exhibit I-3 as having been prepared in accordance with GAAP on a consistent basis and as fairly presenting in all material respects the financial condition of the Sponsor as of the

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date thereof and the results of operations and cash flows of the Sponsor for the periods presented.

6.1.7.             Management Letters.

Promptly, but in any event within five (5) Business Days, after the Borrower’s receipt thereof, a copy of any management letter or other material communications received by the Borrower from the Borrower’s Accountant in relation to its financial, accounting and other systems, management or accounts or the Project (other than communications received in the ordinary course of business).

6.1.8.             Reporting Obligations. Promptly, but in any event within five (5) Business Days, after the Borrower obtains Knowledge thereof or information pertaining thereto, notice of:

(a)        the occurrence of any event that constitutes an Event of Default or Potential Event of Default, specifying the nature thereof, together with an Officer’s Certificate of the Borrower indicating any steps the Borrower has taken or proposes to take to remedy the same;

(b)        any Action, pending or threatened in writing (i) against the Borrower or any of its property, (ii) with respect to the Project or any Transaction Document or (iii) against any other Project Participant that, in each case, either singly or in the aggregate, could reasonably be expected to have a Material Adverse Effect and of any material developments with respect to any of the foregoing;

(c)        any proceeding or legislation by any Governmental Authority specifically affecting (i) the Project, the Borrower, any of its property or its Equity Interests or (ii) a Project Participant that, in each case, could reasonably be expected to have a Material Adverse Effect, including any developments with respect to any of the foregoing;

(d)        any change in the Authorized Officers of the Borrower, including certified specimen signatures of any new Person so appointed and satisfactory evidence of the authority of such Person, or any change in the Borrower’s Accountant and the reason therefor;

(e)        any actual or proposed termination, rescission, discharge (otherwise than by performance), amendment, supplement, modification, waiver or indulgence or breach in any material respect of any Transaction Document or Required Approval; or any execution of any new material agreement, that is not otherwise approved, consented to or accepted pursuant to the terms of the Transaction Documents;

(f)         any material notice or correspondence received or initiated by the Borrower relating to the Project or any Transaction Document or any material notice or correspondence received or initiated by the Borrower relating to any Required Approval, but excluding notices or correspondence received or initiated in the ordinary course of business or otherwise previously delivered pursuant to any Transaction Document;

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(g)        any Lien (other than a Permitted Lien) being granted or established or becoming enforceable over any of the Borrower’s Properties or the Equity Interests in the Borrower, together with a description thereof;

(h)        any proposed material change in the nature or scope of the Project or the business or operations of the Borrower, together with a description thereof;

(i)         any casualty damage or loss to the Project (i) in excess of Five Million Dollars ($5,000,000) for a single event or in excess of Ten Million Dollars ($10,000,000) annually in the aggregate or (ii) affecting one or more transformers;

(j)         any notice of a delinquent payment owed by the Borrower to, or to the Borrower by, (i) any Major Project Participant if such payment is more than thirty (30) days delinquent or (ii) any other party under the Project Documents if such payment is more than ninety (90) days delinquent and in either case, if the amount of any such delinquent payment is in excess of Two Hundred Fifty Thousand Dollars ($250,000), in each case together with a copy of all correspondence received or sent by the Borrower with respect to such delinquent payment;

(k)        any material correspondence from any Major Project Participant relating to (i) any material delay in the completion of the Project or (ii) any event that could reasonably be expected to interrupt the operation of the Project for more than thirty (30) Business Days;

(l)         any notice of interruption of the ability of PG&E to receive material quantities of deliveries under the HPR II PPA or HPR III PPA or any event that could reasonably be expected to interrupt the ability of PG&E to receive material quantities of deliveries under the HPR II PPA or HPR III PPA for more than ten (10) consecutive Business Days;

(m)       any notice from PG&E regarding the payment of an invoice submitted to PG&E by the Borrower other than a notice given by PG&E in the ordinary course of business;

(n)        any one or more events, conditions or circumstances (including government action) that exist or have occurred or in the judgment of the Borrower are expected as imminent that could reasonably be expected to have a Material Adverse Effect, together with a description thereof;

(o)        any non-compliance of any Reserve Letter of Credit with the criteria established with respect thereto and any event, condition or circumstance that represents or could reasonably be expected to lead to non-compliance by any issuer with the required criteria with respect thereto or the renewal thereof;

(p)        the occurrence of any Event of Force Majeure affecting, or that either the Borrower or any other Project Participant claims would affect, the performance by such Person of any obligation under any Transaction Document, together with copies of all

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notices, calculations, data and other correspondence between such Project Participant and the Borrower in respect of any such Event of Force Majeure;

(q)        any material dispute between (a) the Borrower and any Project Participant or (b) between the Borrower, any Project Participant and any Governmental Authority, in each case relating to the Project;

(r)         upon request by DOE, copies of any data relating to the performance of tests under any Project Document;

(s)         the occurrence of any event that could reasonably be expected to cause a reduction in the Operating Revenues of the Borrower for any Fiscal Year by more than ten percent (10%) of the amount estimated therefor in the then applicable Operating Forecast;

(t)         any proposed cancellation or material change in any Required Insurance maintained by the Borrower or by any other Person for the benefit of the Borrower with respect to the Project and after Borrower obtains knowledge of any occurrence that has or could reasonably be expected to result in any premium increase in excess of ten percent (10%) over the cost then in effect for any insurance contract, or any cancellation or non-renewal of, any policy of Required Insurance or any Required Insurance coverage required to be maintained hereby or by any other Transaction Document, notice (including a summary description) of such event and within thirty (30) days after an Authorized Officer obtains knowledge of such event, a report describing such event and the potential insurance-related impact thereof;

(u)        notice and a copy of any periodic reports submitted by the Borrower to PG&E pursuant to the HPR II PPA and HPR III PPA;

(v)        notice and a copy of any other material report filed or required to be filed by any Project Participant with any Governmental Authority relating to the Project;

(w)       the occurrence of (i) an ERISA Event, (ii) the adoption of any new Pension Plan by the Borrower or any ERISA Affiliate, (iii) the adoption of any amendment to a Pension Plan, if such amendment will result in a material increase in benefits or unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), (iv) the commencement of contributions by the Borrower or any ERISA Affiliate to any Pension Plan that is subject to Title IV of ERISA or Section 412 of the Internal Revenue Code or (v) the receipt by the Borrower or any ERISA Affiliate of a notice from a Multiemployer Plan sponsor concerning an ERISA Event; and

(x)        the Borrower’s or Sponsor’s receipt of a written demand for Recapture Damages.

6.1.9.            Cash Grant Determination. As soon as possible, but in any event within five (5) Business Days, after either of the Sponsor or the Borrower obtains Knowledge regarding any change in facts or in Applicable Law which might reasonably be expected

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to adversely affect in any manner or way the eligibility of the Project to qualify for Cash Grants in the amounts, and by the dates, set forth in Exhibit T.

6.1.10.  Governmental and Environmental Indemnity Claims and Reports. As soon as available, but in any event:

(a)      within seven (7) Business Days after any such report is submitted, a copy of any report required to be filed by the Borrower (or on behalf of the Borrower) with any Governmental Authority other than in the ordinary course of business;

(b)      within one (1) Business Day after the Borrower obtains Knowledge of any accident related to the Project having a material and adverse impact on the environment or on human health (including any accident resulting in the loss of life), notice thereof, and within twenty (20) Business Days thereafter a report describing such accident, the impact of such accident and the remedial efforts required and (as and when taken) implemented with respect thereto;

(c)       within twenty (20) Business Days after the close of each Fiscal Year, a report, satisfactory to DOE in its reasonable discretion, summarizing any actual or alleged violations of and the status of compliance with Environmental Laws in connection with the Project over the preceding year, with sufficient information (as determined by DOE) to allow DOE to monitor the Project’s performance with respect to the environment and its compliance with Environmental Laws, and including a narrative summary of the results of environmental monitoring or sampling activity, including, but not limited to, (A) copies of the annual compliance certification required under Title V of the Clean Air Act; (B) Discharge Monitoring Reports for the preceding calendar year submitted in accordance with the Clean Water Act; (C) a summary of any spills or releases required to be reported during the previous calendar year under applicable Environmental Laws; (D) any summaries relating to compliance with the federal Endangered Species Act and (E) a summary of any violations of Environmental Laws during the previous calendar year, together with a description of any remedial or corrective action taken with respect thereto;

(d)      within two (2) Business Days after the Borrower obtains Knowledge thereof, any pending or asserted Environmental Claim by any Governmental Authority or any other Person or Persons, and any threatened Environmental Claim that could materially impact the Project, together with a copy of any correspondence relating thereto and a description of any steps the Borrower is taking and proposes to take with respect thereto;

(e)       unless otherwise required more quickly under Environmental Law, within two (2) Business Days after delivery thereof, any report, plan or other written communication required to be delivered to any Governmental Authority pursuant to: (i) the Biological Opinion; (ii) the SHPO Clearance Letter; and (iii) the Final Environmental Assessment, and any amendments, supplements or other modifications of any of the foregoing; and

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(f)       immediately, any proposed changes to the Project that would alter the implementation of the “Proposed Action” as described in the Final Environmental Assessment.

6.1.11.      Annual Safety Audit. Within twenty (20) Business Days after its completion, a copy of the report regarding the required annual safety audit pursuant to Section 6.17;

6.1.12.      Additional Project Documents and Governmental Approvals. As soon as available, but in no event later than ten (10) Business Days after the receipt thereof by the Borrower, copies of any Additional Project Documents obtained or entered into by the Borrower after the Guarantee Agreement Date;

6.1.13.      Additional Audit Reports. As soon as available, but in any event within ten (10) Business Days after the receipt thereof by the Borrower, copies of all other material annual or interim reports submitted to the Borrower by the Borrower’s Accountant;

6.1.14.  Other Reports and Filings. Promptly upon transmission thereof, copies of all financial information, statutory audits, proxy materials and other information and reports, if any, that the Borrower has delivered to the Securities and Exchange Commission or any successor regulatory authority;

6.1.15.  Insurance Certificate. On or before the tenth Business Day after renewal of the insurance policies in respect of the Required Insurance, an annual certificate with respect to Required Insurance (in form and substance reasonably satisfactory to DOE) conforming to the insurance requirements of Schedule 6.3(b);

6.1.16.  Other Information. Reasonably promptly upon request, such other information or documents as DOE reasonably requests; and

6.1.17.      Information Made Available.

(a)      In accordance with Section 609.10(d)(19) of the Applicable Regulations, (i) the information that will be made available to DOE is as set forth in the Financing Documents and (ii) any information will be made publicly available to the extent required by applicable federal law; and

(b)      without limiting the generality of clause (a) above, all correspondence, books, documents, papers and records relating to the structuring, negotiation and execution of this Loan Guarantee Agreement and the transactions contemplated herein, including this Loan Guarantee Agreement, the Financing Documents, the pre-application, the Application, the term sheet and all supporting documentation, Financial Statements, audit reports of independent accounting firms, permits and regulatory approvals furnished or otherwise made available to DOE, will be handled in accordance with all applicable federal laws, rules, or regulations, including the Trade Secrets Act, 18 U.S.C.

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Section 1905, and the Freedom of Information Act, 5 U.S.C. Section 552, and DOE’s implementing regulations at 10 C.F.R. 1004.

SECTION 6.2.     Books, Records and Inspections; Accounting and Auditing Matters.

(a)             The Borrower shall (i) keep proper records and books of account in which full, true and correct entries in accordance with GAAP and all Applicable Laws are made in respect of all dealing and transactions relating to the business and activities of the Borrower, and (ii) maintain adequate management information and cost control systems and make arrangements reasonably satisfactory to DOE (A) for overseeing the financial operations of the Borrower, including its cash management, accounting and financial reporting, (B) for overseeing the Borrower’s relationship with DOE and the Borrower’s Accountant and (C) for facilitating the effective and accurate audit and performance evaluation of the Project pursuant to the Applicable Regulations and Program Requirements;

(b)             Each set of Financial Statements the Borrower delivers shall be prepared in accordance with GAAP consistently applied except to the extent that there have been any changes to such accounting principles or the application thereof noted in such Financial Statements and all financial records of the Borrower shall be maintained at the principal executive office of the Borrower;

(c)             The Borrower shall (i) consult and cooperate with DOE regarding the Project upon DOE’s request, (ii) upon reasonable notice (to be given not more than once in any calendar quarter unless an Event of Default or potential Event of Default has occurred and is continuing, in which case such frequency limitation shall not apply), permit officers and designated representatives of DOE, its agents, the Comptroller General and the Independent Consultants to visit and inspect the Project and any other facilities and Properties of the Borrower (provided that at all times during such visit and inspection, each such visiting Person will comply with all site safety rules disclosed by the Borrower or its representative), (iii) upon reasonable notice, provide to officers and designated representatives of DOE, its agents, the Comptroller General and the Independent Consultants access to any pertinent books, documents, papers and records of the Borrower for the purpose of audit, examination, inspection and monitoring upon reasonable notice and at reasonable times during normal business hours, to examine and discuss the affairs, finances and accounts of the Borrower with the representatives of the Borrower, (iv) afford proper facilities for such inspection, shall make copies (at the Borrower’s expense) of any records that are subject to such inspection, shall make available all information related to the Project, including all patents, technology and proprietary rights owned or controlled by the Borrower and utilized in the construction, startup or operation of the Project, as may be reasonably necessary in order to determine the technical progress, soundness of financial condition, management stability, compliance with environmental requirements, adequacy of health and safety conditions and all other matters with respect to the Project and (v) exercise commercially reasonable efforts to cause each Major Project Participant to make available to DOE, its agents, the Comptroller General and the Independent Consultants the same rights of inspection and access to its books and records that such Major Project Participant makes available to the Borrower;

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(d)             The Borrower shall upon the request of DOE, with reasonable advance notice, make the Borrower’s Accountant available to communicate with DOE, the Comptroller General and the Independent Consultants and their representatives at any reasonable time regarding any of the Borrower’s accounts and operations;

(e)             In the event that the Borrower’s Accountant should cease to be the accountant of the Borrower for any reason, the Borrower shall appoint and maintain as the Borrower’s Accountant another firm of independent public accountants, which firm shall be nationally recognized; and

(f)             The Borrower shall retain all records relating to expenditures with respect to which Advances were made for five (5) years after the Advance was made with respect to such expenditure.

SECTION 6.3.     Maintenance of Existence, Property and Insurance.

(a)             The Borrower shall preserve and maintain (i) its legal existence and (ii) all of its licenses, rights, privileges and franchises material to the conduct of its business and the Project.

(b)             The Borrower shall keep its present and future Properties insured as required by and in accordance with the terms and provisions described on Schedule 6.3(b). The Borrower shall obtain and maintain and shall pursue any contractual remedies to cause other Persons required to provide Required Insurance, including any Construction Contractor and the Operator, to obtain and maintain such Required Insurance or alternate coverage provided for on Schedule 6.3(b) or in their respective Project Documents, as the case may be.

(c)             In the event that the Borrower fails to procure or maintain (or cause to be procured and maintained) the Required Insurance, DOE may (but shall not be obligated to) take out the Required Insurance and pay the premiums in connection therewith. All amounts so advanced for such purpose by DOE shall become an additional Secured Obligation owed by the Borrower to DOE and, within ten (10) days of demand by DOE, the Borrower shall pay any such amounts to DOE, together with interest on such amounts at the Late Charge Rate from the date reimbursement is due.

SECTION 6.4.     Compliance with Applicable Laws; Environmental Laws; Governmental Approvals.

(a)             The Borrower shall, with respect to the design, construction, operation and maintenance of the Project, pursue all contractual remedies available to it in a commercially reasonable manner to cause each Project Participant to (i) comply with and conduct its Property, business and operations in compliance with all Applicable Laws, including all Environmental Laws, in all material respects and (ii) procure, maintain and comply in all material respects with all Required Approvals.

(b)             Notwithstanding the foregoing, the Borrower shall fully comply in all respects with (i) the Biological Opinion; (ii) the SHPO Clearance Letter; and (iii) the Proposed Design Features and Proposed Action as described in the Final Environmental Assessment, and any

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amendments, supplements or other modifications to any of the foregoing including preparing and submitting all reports and other information and taking all actions required by such documents.

SECTION 6.5.     Taxes, Duties, Expenses and Liabilities.

(a)             The Borrower shall pay or arrange for the payment before they become overdue of all present and future (i) Taxes (including stamp taxes), duties, fees, Periodic Expenses, or other charges payable on or in connection with the execution, issue, delivery, registration, or notarization, or for the legality, validity, or enforceability, of this Loan Guarantee Agreement, any other Transaction Documents and any other documents related to this Loan Guarantee Agreement (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); provided that the Borrower shall promptly pay any valid, final judgment rendered upon the conclusion of any relevant Action enforcing any Tax and cause it to be satisfied of record and (ii) claims, levies, or liabilities (including claims for labor, services, materials and supplies), for sums that have become due and payable and that have or, if unpaid, might become a Lien (other than a Permitted Lien) upon the Property of the Borrower (or any part thereof).

(b)             The Borrower shall duly and punctually pay and discharge its Obligations in respect of any Indebtedness permitted under Section 7.1 when due, subject to the terms and conditions of this Loan Guarantee Agreement and the other Financing Documents.

(c)             From and after the creation of the Borrower, the Borrower has not been, is not and shall not be, a member of an affiliated or consolidated group for federal or state tax purposes (except as otherwise required by a Change of Law).

SECTION 6.6.     Proper Legal Form.

The Borrower shall take all action to ensure that each of the Transaction Documents is in proper legal form under the respective governing laws selected in such Transaction Document, without any further action required with respect to such legal form for the enforcement of such Transaction Documents.

SECTION 6.7.     Construction and Approved Construction Changes.

The Borrower shall apply the proceeds of the Advances exclusively to Eligible Project Costs (including reimbursement of Equity Contributions that fund Eligible Project Costs prior to the time such Equity Contributions are required) and shall use its commercially reasonable efforts to cause (i) Operational Completion to be achieved on or prior to the Anticipated Operational Completion Date and (ii) Project Completion to be achieved on or prior to the Guaranteed Project Completion Date, in each case within the Construction Budget.

The Borrower shall cause all Approved Construction Changes to be reflected in a revised Project Milestone Schedule or Construction Budget, as the case may be, and delivered to DOE as contemplated by Section 6.1.5.

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SECTION 6.8.     Diligent Construction of Project.

The Borrower shall construct and complete, or cause to be constructed and completed, the Project Facility diligently in accordance with the Project Plans, the Construction Contracts and the other Transaction Documents, Required Approvals, the Project Milestone Schedule and the Construction Budget.

SECTION 6.9.     Acceptance and Startup Testing.

The Borrower shall (a) consult with and provide, or cause to be provided, reasonable notice to the Loan Servicer and Independent Engineer regarding provisions related to startup and testing of facility and equipment pursuant to the Construction Contracts and the O&M Agreement; (b) provide the Independent Engineer with the opportunity to observe the startup and testing of the Project Facility and (c) at the request of DOE, provide DOE and the Independent Engineer with any data or reports received by the Borrower in connection with any of the startup testing of the Project Facility.

SECTION 6.10.   Operating Plan; Operations.

(a)              From and after the Operational Completion Date, the Borrower shall or shall cause the Project to operate in all material respects pursuant to the Operating Plan then in effect. The Borrower shall conduct, and shall cause the Operator to conduct, the operations of the Project on the basis of customary commercial practice and arm’s-length arrangements, or as otherwise set forth in the Project Documents, with due diligence and efficiency and under the supervision of qualified and experienced management.

(b)              The Borrower shall (i) keep (or cause to be kept) all its Properties in good working order and condition to the extent necessary to ensure that its business can be conducted properly at all times, (ii) operate, maintain and repair the Project or cause the Project to be operated, maintained and repaired materially in accordance with the standards set forth in the O&M Agreement, manufacturer’s recommendations and Required Approvals, (iii) possess all equipment necessary for the operation of the Project and maintain such spare parts and inventory or renew and replace such equipment, in each case as consistent with the Transaction Documents and the “reasonable and prudent operator” standard and (iv) maintain or cause to be maintained at the Project Site a complete set of plans and specifications for the Project.

(c)               The Borrower shall maintain or cause to be maintained at the Project Site a complete set of plans and specifications for the Project.

SECTION 6.11.   Operating Budget.

6.11.1.                         Submission and Approval of Operating Budget.

(a)              For each Fiscal Year during the Operating Budget Period, as soon as it is available, but in any event at least forty-five (45) days prior to the commencement of the Operating Budget Period (and prior to the commencement of each Fiscal Year during the Operating Budget Period), the Borrower shall submit to DOE and the Independent Engineer for approval by DOE the Operating Budget for such Fiscal Year prepared by the Borrower. Each Operating Budget shall be consistent with the Base Case Projections and be accompanied by certification of an Authorized Officer of the Borrower that, to the best of such Authorized

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Officer’s Knowledge, the Operating Budget is a reasonable estimate for the period covered thereby and is in compliance with the requirements of this Section 6.11.

(b)                                           DOE will make commercially reasonable efforts to promptly review each proposed Operating Budget and, no later than ten (10) Business Days prior to the time the Operating Budget is scheduled to become effective, reasonably approve or disapprove each line item in the proposed Operating Budget.

(c)                                            A proposed Operating Budget shall become effective on the later of (i) the first day of the relevant Fiscal Year (or, for any Fiscal Year in which the Phase Operation Date for Phase 1 occurs, such date) and (ii) the date DOE or the Loan Servicer advises the Borrower that DOE has approved such Operating Budget. If DOE does not approve an Operating Budget, DOE shall advise the Borrower of the items that are disapproved and the reason for such disapproval.

(d)                                           If all or any part of an Operating Budget is disapproved, the Borrower shall comply with all approved aspects of such Operating Budget. With respect to those aspects of any Operating Budget that are not approved, the Borrower and DOE shall continue to discuss such aspects in good faith and the Operating Budget for the preceding Fiscal Year related to such disapproved items, adjusted for inflation as specified in the last sentence of this Section 6.11.1(d)  (or, in the case of any Operating Budget intended to be effective prior to the Project Completion Date, the amounts contemplated by Exhibit D-3 of the O&M Agreement), shall be applicable and for all purposes hereof be deemed to be part of the approved Operating Budget for the current Fiscal Year until such time as such aspects of the Operating Budget for the current Fiscal Year have been approved in writing by DOE. The inflation adjustment for any disapproved items shall be equal to the lesser of (i) the annual inflation adjustment assumed with respect to each such disapproved item in the Base Case Projections as of the Guarantee Agreement Date and (ii) the Borrower’s good faith estimate of the inflation increase (or decrease) with respect to each such disapproved item since the date of the Operating Budget for the preceding Fiscal Year.

(e)                                            Each Operating Budget shall (i) be prepared in good faith on the basis of all facts and circumstances then existing and known to the Borrower and written assumptions stated therein which the Borrower believes to be reasonable as to all factual and legal matters material to such estimates, and reflect the Borrower’s best estimate of the future results of the Borrower and the Project and (ii) except in the case of the Initial Operating Budget, be based on the same format and maintained substantially on the same basis as, and provide sufficient detail to permit a meaningful comparison to, previous years. Each Operating Budget shall include (A) fair and good faith reasonable estimates of Operating Revenues, Operating Costs (both fixed and variable) on an individual line item basis for the Project and projected Debt Service and pro forma cash flow projections for each period covered by such Operating Budget, (B) a summary of the Project’s major maintenance schedule to the end of the then current long term major maintenance cycle (and related scheduled outages), (C) the Borrower’s fair and good faith reasonable estimates of any Capital Expenditures (but excluding Project Costs) for the succeeding five (5) years and the envisioned effect of any contemplated major maintenance activities on the Project’s operations and (D) such other information as may be reasonably requested by DOE.

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6.11.2.                         Amendments to Operating Budget.

If at any time during any Fiscal Year (a) total Operating Costs to be paid during the balance of such Fiscal Year, exceed or are reasonably expected to exceed the allowance provisions of Section 7.16, then the Borrower shall deliver a proposed amendment to the then current Operating Budget to DOE and the Independent Engineer and such proposed amendment shall become effective on the date it is approved by DOE. At the time the Borrower submits such proposed amendment, the Borrower shall certify the purpose of such amendment and that such amendment is reasonably necessary or advisable for the operation and maintenance of the Project. The Borrower shall comply with the approved Operating Budget (subject to the allowance provisions of Section 7.16) until the proposed amendment is approved by DOE. For the avoidance of doubt, nothing in this Section 6.11.2 shall be interpreted to disallow the application of Loss Proceeds on terms and conditions set forth in Section 6.22, incurrence of capital expenditures on terms and conditions set forth in Section 7.5, incurrence of Major Maintenance Costs (as that term is defined in the Accounts Agreement) on terms and conditions set forth in the Accounts Agreement, the application of Performance Liquidated Damages on the terms and conditions set forth in Section 3.4.3(a), the application of proceeds from a Permitted Disposition on the terms and conditions set forth in Section 3.4.3(d), the application of Major Project Document Breach Damages or Major Project Document Termination Damages or the application of funds to settle disputes in accordance with the terms and conditions set forth in Section 7.19.

SECTION 6.12.        Performance of Obligations.

(a)                                           The Borrower shall maintain in full force and effect each of the FFB Documents and each of the other Financing Documents to which it is a party in accordance with the respective terms thereof.

(b)                                           The Borrower shall (i) perform and observe all of its covenants and obligations contained in any Transaction Document or Required Approval in all material respects, (ii) take all reasonable and necessary action to prevent the termination, suspension or cancellation of any Transaction Document or Required Approval (except for the expiration of any Transaction Document or Required Approval in accordance with its terms and not as a result of a breach or default thereunder by the Borrower) and (iii) enforce against the relevant Project Participant each material covenant or obligation under each Project Document to which such Person is a party in accordance with its terms.

SECTION 6.13.        Replacement of Certain Project Participants.

The Borrower shall, (after consulting with DOE and to the extent the Borrower deems such action prudent and commercially reasonable) exercise its rights (if any, which may include termination) against (a) the Operator in accordance with and as permitted by the O&M Agreement if the Operator is not operating the Project in accordance with the O&M Agreement and each other Transaction Document to which it is a party, (b) the EPC Contractor in accordance with and as permitted by the EPC Contract, if the EPC Contractor is not in compliance with the EPC Contract or other Transaction Documents to which it is a party or (c) any Person party to a Project Document in accordance with and as permitted by such Project Document if such Person is not in compliance with such Project Document. Prior to, or

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promptly after, any termination, the Borrower shall enter into a replacement agreement with a new operator, EPC contractor or other Person, as the case may be, on terms and conditions and with a counterparty reasonably acceptable to DOE.

SECTION 6.14.        Accounts; Cash Deposits.

The Borrower shall maintain, or cause to be maintained, in full force and effect each of the Project Accounts in accordance with the terms of the Accounts Agreement. The Borrower shall instruct each Person remitting cash to or for the account of the Borrower to deposit such cash in accordance with the terms of the Accounts Agreement and shall otherwise comply with the provisions thereof. The Borrower shall remit any amounts received by it or received by third parties on its behalf to the Collateral Agent for deposit in accordance with the terms of the Accounts Agreement.

SECTION 6.15.        Debt Service Reserve.

The Borrower shall establish and maintain in accordance with the provisions of the Accounts Agreement a reserve for Debt Service (the “Debt Service Reserve”). The Debt Service Reserve shall consist of any combination of cash and Reserve Letters of Credit. Beginning not later than the earlier of (i) the Operational Completion Date and (ii) the date that is six (6) months prior to the First Payment Date, the amount on deposit in or credited to the Debt Service Reserve shall at all times be no less than the Debt Service Reserve Requirement.

SECTION 6.16.        Debt to Equity Ratio.

The Borrower shall maintain, during the Availability Period, a Debt to Equity Ratio no greater than the Maximum Debt to Equity Ratio.

SECTION 6.17.        Safety Audit.

Not less frequently than annually, the Borrower shall cause the Operator to conduct, a safety audit of the Project in a manner reasonably satisfactory to DOE, including an analysis of whether the Project is in compliance with all Applicable Laws and Environmental Laws in all material respects and each such safety audit shall result in the prompt preparation of a written report with respect thereto that shall be delivered to DOE and the Independent Engineer for review and approval by DOE. The Borrower shall provide for the prompt correction of any deficiencies identified in such safety audit and for the operation and maintenance of the Project in accordance with any recommendations set forth therein.

SECTION 6.18.        Independent Consultants.

The Borrower (a) shall cooperate in all respects with each Independent Consultant and (b) shall ensure that each Independent Consultant is provided with all information reasonably requested by such Independent Consultant in fulfilling its duties to DOE and ensure that any information that it may supply to such Independent Consultant is accurate and not, by omission of information or otherwise, misleading in any material respect at the time such information is provided.

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SECTION 6.19.        Title; Rights to Land.

The Borrower shall preserve and maintain good and valid title to such Real Property interests as are necessary and sufficient to construct, operate and maintain the Project on the Project Site in accordance with the requirements of the Transaction Documents. The Borrower shall obtain and deliver to DOE a subordination agreement in the form of Exhibit P or such other form as may be reasonably acceptable to DOE from each Subcontractor with whom Borrower enters into a contract after the date of this Loan Guarantee Agreement that provides for aggregate payments to the contractor or supplier equal to or in excess of $25,000,000.

SECTION 6.20.        Creation and Perfection of Security Interests; Additional Documents; Filings and Recordings.

(a)                                           The Borrower shall promptly execute and deliver, from time to time as reasonably requested by the Loan Servicer, DOE or the Collateral Agent at the Borrower’s expense, such other documents as shall be necessary or advisable or that the Loan Servicer, DOE and the Collateral Agent may reasonably request in connection with the rights and remedies of DOE and the Collateral Agent granted or provided for by the Transaction Documents and to consummate the transactions contemplated therein.

(b)                                           The Borrower shall, at its own expense, promptly take all actions that have been or shall be requested by the Loan Servicer, DOE, the Collateral Agent or that the Borrower knows are necessary to establish, maintain, protect, perfect and continue the perfection of the first priority (subject to Permitted Liens) security interests of the Secured Parties created by the Security Documents and shall furnish timely notice of the necessity of any such action, together with such instruments, in execution form, and such other information as may be required or reasonably requested to enable any appropriate Secured Party to effect any such action. Without limiting the generality of the foregoing, the Borrower shall, at its own expense, (i) execute or cause to be executed and shall file or cause to be filed or register or cause to be registered such financing statements, continuation statements, fixture filings and mortgages or deeds of trust in all places necessary or advisable (in the opinion of counsel for the Loan Servicer, DOE or the Collateral Agent) to establish, maintain and perfect such security interests and in all other places that the Loan Servicer, DOE or the Collateral Agent shall reasonably request, (ii) discharge all other Liens (other than Permitted Liens) or other claims adversely affecting the rights of the Secured Parties in the Collateral; and (iii) deliver or publish all notices to third parties that may be required to establish or maintain the validity, perfection or priority of any Lien created pursuant to the Security Documents.

(c)                                            The Borrower shall promptly do everything necessary or advisable in the judgment of the Loan Servicer, DOE or the Collateral Agent (including filing, registering and recording all necessary documents and paying all fees, taxes, levies, imposts and Periodic Expenses in connection therewith) to (i) create security arrangements, including, as applicable, the establishment of a pledge or the perfection of any Lien or, as applicable, the enforceability of a Lien as against the Borrower and any subsequent lienor (including a judgment lienor), holder of a charge, or transferee for or not for value, in bulk, by operation of law, or otherwise, in each case granted, with respect to future assets in accordance with the requirements of all Applicable

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Laws, or the law of any other jurisdiction, as applicable, (ii) maintain the security and pledges created by the Security Documents in full force and effect at all times (including, as applicable, the priority thereof); and (iii) preserve and protect the Collateral and protect and enforce its rights and title, and the rights and title of the Secured Parties, to the security created by the Security Documents. Furthermore, the Borrower shall cause to be delivered to the Loan Servicer such opinions of counsel and other related documents as may be reasonably requested by the Loan Servicer, DOE or the Collateral Agent to assure compliance with this Section 6.20(c).

(d)                                           If the Borrower shall at any time acquire any interest in Property that is Collateral but is not covered by the Security Documents or enter into any Additional Project Document, the Borrower shall promptly (i) as applicable: (A) execute, deliver and record an amendment or supplement to the Security Documents, satisfactory in form and substance to DOE, or (B) enter into a Direct Agreement with the Collateral Agent, in each case, as necessary in order to grant the Collateral Agent a first priority lien or security interest (as applicable) in such Property, subject only to Permitted Liens, and otherwise in form and substance satisfactory to the Loan Servicer and the Collateral Agent and (ii) ensure that such lien or security interest shall be valid and effective.

SECTION 6.21.        Event of Loss.

If any material Event of Loss shall occur with respect to the Project or any part thereof, the Borrower shall (i) diligently pursue all of its rights to compensation against all relevant insurers, reinsurers and Governmental Authorities, as applicable, in respect of such event, (ii) not, without the written consent of DOE compromise or settle any claim with respect to any Event of Loss involving an amount in excess of Ten Million Dollars ($10,000,000) per claim and (iii) pay or apply all Loss Proceeds received by the Borrower and stemming from such event in accordance with Section 3.4.3(b) and Section 6.22.

SECTION 6.22.        Application of Loss Proceeds.

(a)                                           All Loss Proceeds received by the Borrower shall be applied as provided in this Section 6.22. To the extent the Borrower is entitled to receive Loss Proceeds, Loss Proceeds shall be paid by the relevant insurers, reinsurers and Governmental Authorities, as applicable, directly to the Collateral Agent as loss payee and, if paid to the Borrower, such Loss Proceeds shall be received in trust and for the benefit of the Collateral Agent segregated from other funds of the Borrower, and shall be forthwith paid over to the Collateral Agent in the same form as received (with any necessary endorsement). Any Loss Proceeds received by either of the Collateral Agent or the Borrower shall promptly be deposited into, or credited to the Loss Proceeds Account.

(b)                                           Upon the occurrence of any Event of Loss, the Loss Proceeds from which are not reasonably expected to exceed Ten Million Dollars ($10,000,000) (such Event of Loss, a “Minimum Threshold Event of Loss”), the Borrower shall apply or cause to be applied such Loss Proceeds to the payment of the costs of repair or restoration of the portion of the Project lost or damaged, and the Parties shall deliver written instruction to the Collateral Agent to disburse such Loss Proceeds in accordance with this Section 6.22.

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(c)                                            Upon the occurrence of any event other than Minimum Threshold Event of Loss, disbursement of funds by the Collateral Agent to the Borrower shall be permitted if, and only if, DOE after consultation with the Independent Engineer determines that:

(i)                                                        repair or replacement of the relevant portion of the Project is technically and economically feasible; and

(ii)                                                     the Borrower is in compliance with such other conditions and requirements as DOE shall, acting reasonably, consider appropriate in the circumstances.

(d)                                           Borrower’s Notice. In respect of any Event of Loss that is not a Minimum Threshold Event of Loss as to which DOE has consented to the repair and restoration in accordance with clause (b), the Borrower shall, on the first Business Day of each month until such restoration and repair has been completed and the contractors performing such restoration or repair work have been paid in full, deliver to the Collateral Agent and DOE the following:

(i)                                                        a detailed summary of the work performed in connection with any such restoration or repair during the preceding month and the itemized expenses that are then due and payable, together with copies of all invoices, conditional (upon payment only) lien waivers from the contractors performing such restoration or repair work and other information and documents reasonably requested by DOE with respect to such restoration or repair work; and

(ii)                                                     proposed Transfer/Withdrawal Instructions directing the Collateral Agent to disburse to the contractors performing such restoration or repair work amounts constituting Loss Proceeds on deposit in the Loss Proceeds Account in the respective amounts then due and payable to such contractors.

(e)                                            Upon the completion of any such restoration and repair work, or if restoration and repair work is not undertaken pursuant to this Section 6.22, the Loan Servicer shall deliver written instructions to the Collateral Agent, instructing the Collateral Agent to apply any amounts constituting Loss Proceeds on deposit in the Loss Proceeds Account to the prepayment of the Guaranteed Loans on the second Business Day following receipt of such instructions, in accordance with Section 3.4.3(b).

SECTION 6.23.        Technology.

(a)                                           The Borrower shall not take any action that would prevent it from exercising any Intellectual Property Rights granted to the Borrower under the EPC Contract, or that would otherwise materially conflict with or adversely affect such Intellectual Property Rights granted to the Borrower.

(b)                                           The Borrower shall take all commercially reasonable actions necessary to maintain and protect the Borrower’s rights and interests in the Technology and Intellectual Property Rights necessary to construct, operate, use and maintain the Project, including (i) protecting the secrecy and confidentiality of all confidential information and trade secrets having material value to the Project by having and enforcing a policy requiring all employees, consultants, licensees, vendors and contractors to execute appropriate confidentiality and, where

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applicable, invention assignment agreements and (ii) taking all commercially reasonable actions necessary to protect the Technology that is a trade secret having a material value to the Project from falling into the public domain as a result of any action by the Borrower.

(c)                                            If the Borrower becomes aware of any matieral breach or violation of any of the terms or conditions of its intellectual property rights in connection with the Project, the Borrower shall take commercially reasonable actions necessary to protect such rights granted to the Borrower, including, if appropriate in Borrower’s reasonable determination, and provided the Borrower has standing, suing for an injunction against such violation or breach.

SECTION 6.24.        Compliance with Certain U.S. Government Requirements.

(a)                                           Recovery Act. The Borrower shall timely comply with the reporting requirements set out in Section 1512(c) of Title XV of Division A of the Recovery Act. Such reporting shall be made in accordance with the procedures set out or otherwise referenced in 2 C.F.R. Section 176.50 and the OMB Implementing Guidance and, in each case, any amendment, supplement or successor thereto. DOE may require in its notice that such reporting relate back to the date hereof. Accordingly, Borrower shall at all times maintain such records as may be necessary, in the event DOE issues such notice, to undertake such reporting obligations.

(b)                                           Lobbying Requirements. The Borrower shall comply with all requirements of 31 U.S.C. §1352, including (i) if any funds have been paid or will be paid to any Person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress (as defined for purposes of 31 U.S.C. §1352), an officer or employee of Congress, or an employee of a Member of Congress in connection with the Guaranteed Loans, the Borrower shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions and (ii) no proceeds of the Advances will be expended to pay any Person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress.

(c)                                            Environmental. The Borrower shall comply with Environmental Laws in all material respects. Notwithstanding the generality of the foregoing, the Borrower shall fully comply in all respects with (i) the Biological Opinion ; (ii) the SHPO Clearance Letter; and (iii) the Project Design Features and Proposed Action as described in the Final Environmental Assessment and any amendments, supplements or other modifications of any of the foregoing.

(d)                                           Use of U.S. Government Funds. The Borrower shall comply with Section 609.10(c) of the Applicable Regulations regarding the prohibition on the use of funds obtained from the U.S. Government, or from a loan or other instrument guaranteed by the U.S. Government, for the payment of Credit Subsidy Costs, administrative fees, or other fees charged by or paid to DOE relating to the Applicable Regulations, except to the extent explicitly authorized by an act of Congress.

(e)                                            Program Requirements. The Borrower shall timely comply with all other Program Requirements and shall reasonably cooperate with DOE to achieve compliance with

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any U.S. Department of Energy and FFB legal and financial requirements, policies, and procedures, and changes thereto, applicable to the Title XVII program that are not otherwise Program Requirements.

(f)                                             Prohibited Persons.

(i)                                                        The Borrower shall provide immediate written notice (including a brief description) to DOE if, at any time, it learns that the representations made with respect to Prohibited Persons (including the debarment regulations) were erroneous when made or have become erroneous by reason of changed circumstances.

(ii)                                                     If any Major Project Participant or any Person that Controls a Major Project Participant becomes (whether through a transfer or otherwise) a Prohibited Person, the Borrower shall, within thirty (30) days of Knowing that such Person has become a Prohibited Person, engage and continue to engage in constructive discussions with DOE regarding the removal or replacement of such Person or, if such removal or replacement is not reasonably feasible, the implementation of other migration measures.

(g)                                            Patriot Act. The Borrower shall establish and maintain an anti-money laundering compliance program if and as required by the Patriot Act.

(h)                                           ▇▇▇▇▇-▇▇▇▇▇ Act.

(i)                                                        In accordance with Section 1702(k) of Title XVII, beginning on the Guarantee Agreement Date, all laborers and mechanics employed by contractors and subcontractors in the performance of construction work financed in whole or in part by the Guaranteed Loan shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with the ▇▇▇▇▇-▇▇▇▇▇ Act, including but not limited to those wages set forth in Schedule 6.24(h). The contract clauses set forth in Exhibit N shall be incorporated into all ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contracts.

(ii)                                                     The Borrower shall, on DOE’s behalf and in accordance with subparagraph (b)(3)(i) of Exhibit N, maintain the payrolls described in such subparagraph (hereinafter “certified payrolls”) that shall be provided weekly by each DBA Contract Party and shall systematically review such certified payrolls for compliance with the ▇▇▇▇▇-▇▇▇▇▇ Act. The Borrower shall promptly notify DOE in writing if it receives any complaint related to non-compliance with the ▇▇▇▇▇-▇▇▇▇▇ Act, or discovers an incident that the Borrower reasonably believes to be a case of such non-compliance. In such instances, the Borrower shall forward to DOE (1) the complaint or a written summary of the non-compliant incident, (2) a summary of the Borrower’s investigation into such complaint or such incident, (3) a summary of the Borrower’s resolution (or proposed resolution) of the compliant or incident, (4) the relevant certified payrolls and (5) any other information requested by DOE regarding the complaint or incident. Certified payrolls shall be maintained by the Borrower for three (3) years after the date of completion of the ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contract. Copies of certified payrolls and basic payroll records shall be maintained by each DBA Contract Party for three (3) years

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after the date of completion of the ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contract. Pursuant to the third sentence of subparagraph (b)(3)(ii)(A) of Exhibit N, DOE directs that the Borrower shall, in lieu of satisfying the requirement set forth therein (i) maintain such certified payrolls at a site designated by the Borrower and shall make such payrolls available to DOE and the U.S. Department of Labor when necessary, and upon request, for purposes of an investigation or audit of compliance with prevailing wage requirements, and (ii) periodically report payroll information to DOE in such electronic or other form as DOE may require. Certified payrolls maintained by the Borrower shall be considered federal government records for the purposes of the Freedom of Information Act, 42 U.S.C. § 552.

(iii)                                                       If the Borrower, the Sponsor or any Affiliate of the Borrower or the Sponsor intends to enter into: (i) enter into a ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contract after the Financial Closing Date; (ii) materially change the scope of work of any ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contract; or (iii) exercise any option to extend the term of a ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contract to perform work for a period of time for which it was not obligated under the terms of the original contract (subsections (i), (ii) and (ii) collectively, “▇▇▇▇▇- ▇▇▇▇▇ Actions”), the Borrower shall provide DOE: (A) a statement of the work for any DBA Contract Party that will perform construction, alteration, or repair of a building or work financed in whole or in part by the Guaranteed Loan; (B) notice of intent to exercise any option described in subsection (iii) above; and (C) any other information requested by DOE relating to such ▇▇▇▇▇-▇▇▇▇▇ Action. This information shall be provided no less than ten Business Days prior to the occurrence of such ▇▇▇▇▇-▇▇▇▇▇ Action. Promptly after execution of any ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contract, or other document evidencing a ▇▇▇▇▇-▇▇▇▇▇ Action, a copy of such document shall be provided to DOE.

(i)                                               ERISA Covenants.

(i)                                                             The Borrower shall do, and shall cause each of its ERISA Affiliates to do, each of the following: (A) maintain each Pension Plan in compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code or other federal or state law, (B) cause each Qualified Plan to maintain its qualified status under Section 401(a) of the Internal Revenue Code, (C) timely make all required contributions to any Pension Plan, (D) in the case of the Borrower, not become a party to any Multiemployer Plan and, in the case of any ERISA Affiliate, not become party to any Multiemployer Plan except as would not reasonably be expected to have a Material adverse Effect, (E) ensure that all liabilities under each Pension Plan are either (i) funded to at least the minimum level required by law or, if higher, to the level required by the terms governing such Pension Plan or (ii) provided for or recognized in the Financial Statements most recently delivered to the Loan Servicer under Section 6.1 and (F) ensure that the contributions or premium payments to or in respect of each Pension Plan is and continues to be promptly paid at no less than the rates required under the rules of such Pension Plan and in accordance with the most recent actuarial advice received in relation to such Pension Plan and Applicable Law.

(ii)                                                          The Borrower shall not, nor shall it permit any of ERISA Affiliate to, (A) terminate any Pension Plan so as to result in any material (in the opinion of DOE) liability to the Borrower or any ERISA Affiliate, (B) permit to exist any ERISA Event, or

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any other event or condition, that presents the risk of a material (in the opinion of DOE) liability to any ERISA Affiliate, (C) make a complete or partial withdrawal (within the meaning of Section 4201 of ERISA) from any Multiemployer Plan so as to result in any material (in the opinion of DOE) liability to the Borrower or any ERISA Affiliate, (D) enter into any new Plan or modify any existing Plan so as to increase its obligations thereunder that could result in any material (in the opinion of DOE) liability to the Borrower or any ERISA Affiliate or (E) permit the present value of all nonforfeitable accrued benefits under any Pension Plan (using the actuarial assumptions utilized by the PBGC upon termination of an employee pension benefit plan subject to Title IV of ERISA) materially (in the opinion of DOE) to exceed the fair market value of the Pension Plan’s assets allocable to such benefits, all determined as of the most recent valuation date for each such Pension Plan.

(j)                                              CCR Registration. The Borrower shall maintain its CCR registration at all times.

(k)                                           Corrupt Practices Laws.

(i)                                                             All Borrower Entities and their respective officers, directors, employees and agents shall comply with all applicable Corrupt Practices Laws in obtaining any consents, licenses, approvals, authorizations, rights, or privileges with respect to the Project;

(ii)                                                          All Borrower Entities and their respective officers, directors, employees and agents shall otherwise conduct the Project and the Borrower’s business in compliance with all applicable Corrupt Practices Laws.

(iii)                                                       The internal management and accounting practices and controls of all Borrower Entities shall at all times be adequate to ensure compliance with all Corrupt Practices Laws.

(iv)                                                      If any Major Project Participant, person that Controls a Major Project Participant, or any of their respective employees or agents fail to comply with OFAC and all applicable Corrupt Practices Laws in obtaining any consents, licenses, approvals, authorizations, rights, or privileges with respect to the Project or, otherwise, in conducting activities in connection with the Project, the Borrower shall, within 30 days of Knowing that such Person has so failed to comply, engage and continue to engage in constructive discussions with DOE regarding the removal or replacement of such Person or, if such removal or replacement is not reasonably feasible, the implementation of other mitigation measures.