Loading...
HomeMy WebLinkAbout2021-03-16; Clean Energy Alliance JPA; ; Adopt Resolution No. 2021-008 Authorizing EEI Master and Lockbox Agreements and Confirmations to the EEI Master Agreement Related to Clean Energy Alliance Energy Procurement4111M0- CLEAN ENERGY ALLIANCE Staff Report DATE: March 16, 2021 TO: Clean Energy Alliance Board of Directors FROM: Barbara Boswell, Interim Chief Executive Officer ITEM 1: Adopt Resolution No. 2021-008 Authorizing the Interim Chief Executive Officer to Execute EEI Master and Lockbox Agreements and Confirmations to the EEI Master Agreement Related to Clean Energy Alliance Energy Procurement RECOMMENDATION Adopt Resolution No. 2021-008 authorizing the Interim Chief Executive Officer to execute EEI Master and Lockbox Agreements and Confirmations to the EEI Master Agreement Related to Clean Energy Alliance Energy Procurement, subject to the limits in the Energy Risk Management Policy and subject to Specialized Energy Transactions Attorney approval. BACKGROUND AND DISCUSSION In preparation for serving customers in May 2021, Clean Energy Alliance (CEA) is in the process of administering a competitive solicitation process to select energy suppliers capable of providing energy, renewable energy, carbon free energy, capacity and related products. The goal of the solicitation process is to identify energy generating sources that meet CEA's goals of minimum 50% renewable and carbon free goals, at prices competitive to San Diego Gas & Electric. Through the solicitation process, CEA has identified several energy service providers as having competitive proposals and the ability to meet CEA's goals. To effectuate the procurement, CEA staff and consultants have been negotiating separate power purchase and sales agreements with each of the energy service providers. The solicitation process is to the point of final pricing and execution of enabling agreements as described below. Edison Electric Institute (EEI) Master Agreement (Attachment 1) - Conventional Energy Hedges typically are executed using an industry standard agreement, the Edison Electric Institute (EEI) Master Agreement, that establishes certain terms and conditions for an ongoing contractual relationship between energy purchaser and energy supplier, but which do not require a purchase to purchase or a supplier to supply the Product without executing a separate written agreement in the form of a Confirmation Agreement (defined below). Confirmation Agreement (Attachment 2) —The confirmation agreement is an agreement between an energy purchaser and an energy supplier that binds the energy purchaser and the energy supplier to supply specific quantities of specific types of energy products at specific prices and is governed by the terms and conditions of an enabling agreement such as the Master Agreement defined above. March 16, 2021 EEI Master, Lockbox And Confirmations Page 2 of 2 Lockbox Agreements — CEA has agreed to provide a "multi-party lockbox" into which CEA customer payments will be deposited, as security for the power purchase obligations of CEA under the Master Agreement and Confirmation Agreements described above. Three agreements with River City Bank, CEA's financial institution, are needed to establish the multi-party lockbox: an Intercreditor and Collateral Agency Agreement (Attachment 3), a Security Agreement (Attachment 4) and an Account Control Agreement (Attachment 5) (collectively the "Lockbox Agreements"). Forms of these three agreements will be negotiated with participating energy suppliers as well as River City Bank and are intended to be entered into no later than the time CEA enters into the Master Agreements with energy suppliers that are participating in the multi-party lockbox. The limits of the energy transactions are to be executed subject to the limits in the CEA Board adopted Energy Risk Management Policy delegation of authority. FISCAL IMPACT CEA adopted rates have been set to provide sufficient revenue to pay energy supply costs. ATTACHMENTS Resolution No. 2021-008 Authorizing the Interim Chief Executive Officer to Execute EEI Master and Lockbox Agreements and Confirmations to the EEI Master Agreement Related to Clean Energy Alliance Energy Procurement, consistent with the Energy Risk Management Policy and subject to Specialized Energy Transactions Attorney approval. Sample documents: 1.CEA EEI Master Agreement Template 2.CEA CAISO Energy EEI Confirmation Template 3.CEA Intercreditor and Collateral Agency Agreement 4.CEA Security Agreement 5.CEA Account Control Agreement DocuSign Envelope ID: AOECB2BA-8DB7-48A3-8D7B-48F3F3179B3F 16 MARCH 2021 RESOLUTION NO. 2021-008 RESOLUTION OF THE BOARD OF DIRECTORS OF CLEAN ENERGY ALLIANCE AUTHORIZING THE INTERIM CHIEF EXECUTIVE OFFICER TO ENTER INTO CERTAIN EEI MASTER AGREEMENTS, CONFIRMATION AGREEMENTS, LOCKBOX AGREEMENTS WITH RIVER CITY BANK, AND OTHER TRANSACTIONS. THE BOARD OF DIRECTORS OF CLEAN ENERGY ALLIANCE HEREBY RESOLVES AS FOLLOWS: WHEREAS, Clean Energy Alliance ("CEA") was formed on November 4, 2019 pursuant to a Joint Powers Agreement ("JPA") to study, promote, develop, conduct, operate, and manage energy programs in the cities of Carlsbad, Del Mar and Solana Beach; WHEREAS, launch of service of the community choice aggregation program is planned for May 2021; WHEREAS, CEA, consistent with its mission of reducing greenhouse gas emissions and offering customer choice at competitive rates, CEA administered a competitive process to select contractors capable of providing energy, renewable energy, carbon free energy, capacity and related products and services (the "Product") from energy generating sources that are cleaner and have a higher percentage of renewable energy than that provided by the incumbent utility and at competitive prices; WHEREAS, CEA has identified several energy service providers (each, an "Energy Service Provider" or "ESP") as having competitive proposals and the ability to meet the aforementioned goals; WHEREAS, CEA will be negotiating a separate EEI Master Power Purchase and Sale Agreement (the "Master Agreements") with such Energy Service Providers; WHEREAS, the Master Agreements are an industry standard framework agreement between an energy purchaser and an energy supplier that establishes certain terms and conditions for an ongoing contractual relationship between an energy purchaser and energy supplier, but which do not require a purchaser to purchase or a supplier to supply the Product without executing a separate written agreement in the form of a Confirmation Agreement (defined below); WHEREAS, a confirmation agreement is an agreement between an energy purchaser and an energy supplier (e.g., an ESP) that binds the energy purchaser and the energy supplier to supply specific quantities of specific types of energy products at specific prices and is governed by the terms and conditions of an enabling agreement such as the Master Agreement or the WSPP Agreement ("Confirmation Agreement"); WHEREAS, CEA will be negotiating a form of Confirmation Agreement with each of the ESPs; WHEREAS, once a Confirmation Agreement is executed by CEA and an ESP, it is a "Transaction"; WHEREAS, CEA has agreed to provide a "multi-party lockbox" into which CEA customer payments will be deposited, as security for the power purchase obligations of CEA under the Master Agreement and Confirmation Agreement; WHEREAS, certain of the ESPs have elected to participate in the multi-party lockbox; 1 DocuSign Envelope ID: AOECB2BA-8DB7-48A3-8D7B-48F3F3179B3F 16 MA RCH 2021 WHEREAS, River City Bank was selected to administer, and act as collateral agent for the ESPs with respect to, the multi-party lockbox; WHEREAS, three agreements with River City Bank are necessary to establish the "multi-party lockbox": an Intercreditor and Collateral Agency Agreement, a Security Agreement and an Account Control Agreement (collectively, the "Lockbox Agreements") and forms of these three agreements will be negotiated with participating ESPs as well as River City Bank and are intended to be entered into no later than the time that CEA enters into the Master Agreements with the ESPs that are participating in the multi-party lockbox; WHEREAS, the Board wishes to delegate to the Interim CEO authority to negotiate and execute the Master Agreements and the Lockbox Agreements for the reasons provided above; WHEREAS, because of the timing of the execution of the various agreements, it is infeasible to bring such agreements back to the Board prior to execution, the Board also wishes to delegate to the Interim CEO the authority to approve any non-material changes, additions, variations or deletions ("Changes") to the form of Master Agreements and Lockbox Agreements presented to the Board in connection with this resolution; WHEREAS, the Board wishes to delegate to Interim CEO the authority to enter into (a) Transactions under the current RFO for up to the limits as specified in the adopted Energy Risk Management Policy; and (b) after the current RFO, Transactions through bilateral negotiations for any remaining requirements for 2021 not obtained under the current RFO; provided, however, that the foregoing Transactions shall be entered into pursuant to Confirmation Agreements in substantially the same form presented to the Board, subject to Changes deemed by the Interim CEO to be reasonable, necessary and appropriate; WHEREAS, the Board wishes to delegate to the Interim CEO the authority to enter into EEI Master Agreements from time to time, in substantially the same form as previously presented to the Board, subject to Changes deemed by the Interim CEO to be reasonable, necessary and appropriate; WHEREAS, the Interim CEO is authorized to negotiate, enter into and deliver, and to do all things necessary or appropriate for the execution and delivery of, and the performance of CEA's obligations under, the foregoing agreements (including any other instruments, documents, certificates and agreements executed by CEA in connection therewith) in order to implement the Interim CEO's authority to enter into such approved agreements and Transactions. NOW, THEREFORE, IT IS HEREBY DETERMINED AND ORDERED that the Board delegates authority to the Interim CEO in the name and on behalf of CEA to negotiate, enter into and deliver, and to do all things necessary or appropriate for the execution and delivery of, and the performance of CEA's obligations under, the aforementioned Master Agreements and Lockbox Agreements in substantially the same form as presented to the Board, (including any other instruments, documents, certificates and agreements executed by CEA in connection therewith, including the opening of bank, escrow or other similar accounts) and, in each case, subject to such Changes as the Interim CEO may deem necessary or appropriate, with the execution and delivery of the aforementioned Agreements containing any such Changes by the Interim CEO to be conclusive evidence of the Interim CEO's approval of such Changes; IT IS HEREBY FURTHER DETERMINED AND ORDERED that the Board delegates authority to the Interim CEO in the name and on behalf of CEA to enter into (a) Transactions under the current RFO for up 2 DocuSign Envelope ID: AOECB2BA-80137-48A3-8D7B-48F3F3179B3F 16 MARCH 2021 to the limits as specified in the adopted Energy Risk Management Policy; and (b) after the current RFO, Transactions through bilateral negotiations for any remaining requirements for 2021 not obtained under the current RFO up to the limits as specified in the adopted Energy Risk Management Policy; provided, however, that the foregoing Transactions shall be entered into pursuant to Confirmations Agreements in substantially the same form presented to the Board, subject to Changes deemed by the Interim CEO to be reasonable, necessary and appropriate; IT IS HEREBY FURTHER DETERMINED AND ORDERED that the Board delegates authority to the Interim CEO in the name and on behalf of CEA to enter into EEI Master Agreements from time to time, in substantially the same form presented to the Board, subject to Changes deemed by the Interim CEO to be reasonable, necessary and appropriate; IT IS HEREBY FURTHER DETERMINED AND ORDERED that the Board delegates authority to the Interim CEO in the name and on behalf of CEA to negotiate, enter into and deliver, and to do all things necessary or appropriate for the execution and delivery of, and the performance of CEA's obligations under, the foregoing agreements (including any other instruments, documents, certificates and agreements executed by CEA in connection therewith) in order to implement the Interim CEO's authority to enter into such approved agreements and Transactions. The foregoing Resolution was passed and adopted this 16th day of March 2021, by the following vote: AYES: Druker, Bhat-Patel, Becker NOES: None ABSENT: None f --DocuSIgnied by: isfi txdar \--7F44F2ANUAUFR Kristi Becker, Chair ATTEST: a--DocuSigned by: 511441" 604.4" s"--23A7871B710246C... Sheila Cobian, Interim Secretary 3 CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 Master Power Purchase Sale Agreement EDISON ELECTRIC INSTITUTE Version 2. I (modified 4/2900) C.COPYRIGI El 2000 by the Edison Electric Institute and National Energy Marketers Association ALL RIGHTS RESERVED UNDER U.S. AND FOREIGN LAW, TREATIES AND CONVENTIONS AUTOMATIC LICENSE — PERMISSION OF TUE COPYRIGHT OWNERS IS GRANTED FOR REPRODUCTION BY DOWNLOADINCi FROM A COMPUTER AND PRINTING ELECTRONIC COPIES OF TIIE WORK. NO AUTHORIZED COPY MAY BE S01.1). THE INDUSTRY IS ENCOURAGED TO [ISE TI ItS MASTER POWER PURCHASE AND SALE AGREEMENT IN ITS TRANSACTIONS. ATTRIBUTION TO THE COPYRICII IT OWNERS IS REQUESTED. CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 MASTER POWER PURCHASE AND SALE AGREEMENT TABLE OF CONTENTS COVER SHEET 1 GENERAL TERMS AND CONDITIONS 21 ARTICLE ONE: GENERAL DEFINITIONS 21 ARTICLE TWO: TRANSACTION TERMS AND CONDITIONS 26 2.1 Transactions 26 2.2 Governing Terms 26 2.3 Confirmation 26 2.4 Additional Confirmation Terms 27 2.5 Recording 27 ARTICLE TIIREE: OBLIGATIONS AND DELIVERIES 27 3.1 Seller's and Buyer's Obligations 27 3.2 Transmission and Scheduling 27 3.3 Force IVIajeure 28 ARTICLE FOUR: REMEDIES FOR FAILURE TO DELIVER/RECEIVE 28 4.1 Seller Failure 28 4.2 Buyer Failure 28 ARTICLE FIVE: EVENTS OF DEFAULT; REMEDIES 28 5.1 Events of Default 28 5.2 Declaration of an Early Termination Date and Calculation of Settlement Amounts 30 5.3 Net Out of Settlement Amounts 30 5.4 Notice of Payment of Termination Payment 30 5.5 Disputes With Respect to Termination Payment 30 5.6 Closeout Setoffs 31 5.7 Suspension of Performance 31 ARTICLE SIX: PAYMENT AND NETTING 31 6.1 Billing Period 31 6.2 Timeliness of Payment 32 6.3 Disputes and Adjustments of Invoices 32 6.4 Netting of Payments 32 6.5 Payment Obligation Absent Netting 32 6.6 Security 32 6.7 Payment for Options 33 6.8 Transaction Netting 33 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 ARTICLE SEVEN: LIMITATIONS 33 7.1 Limitation of Remedies, Liability and Damages 33 ARTICLE EIGHT: CREDIT AND COLLATERAL REQUIREMENTS 34 8.1 Party A Credit Protection 34 8.2 Party B Credit Protection 35 8.3 Grant of Security Interest/Remedies 37 ARTICLE NINE: GOVERNMENTAL CHARGES 38 9.1 Cooperation 38 9.2 Governmental Charges 38 ARTICLE TEN: MISCELLANEOUS 38 10.1 Term of Master Agreement 38 10.2 Representations and Warranties 38 10.3 Title and Risk of Loss 40 10.4 Indemnity 40 10.5 Assignment 40 10.6 Governing Law 40 10.7 Notices 40 10.8 General 40 10.9 Audit 41 10.10 Forward Contract 41 10.11 Confidentiality 41 SCHEDULE M: GOVERNMENTAL ENTITY OR PUBLIC POWER SYSTEMS 43 SCHEDULE P: PRODUCTS AND RELATED DEFINITIONS 47 EXHIBIT A: CONFIRMATION LETTER 54 11 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Fdison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 MASTER POWER PURCHASE AND SALE AGREEMENT COVER SHEET This Master Power Purchase and Sale Agreement ("Master Agreement") is made as of the following date: , 2021 ("Effective Date"). The Master Agreement, together with the exhibits, schedules and any written supplements hereto, the Party A Tariff, if any, the Party B Tariff, if any, any designated collateral, credit support or margin agreement or similar arrangement between the Parties and all Transactions shall be referred to as the "Agreement." The Parties to this Master Agreement are the following: Name: (" " or "Party A") Name: Clean Energy Alliance, a California joint powers authority ("CEA" or "Party B") All Notices: All Notices: Address: Address: 1200 Carlsbad Village Dr. Carlsbad, CA 92008 Attn: Attn: Barbara Boswell, Interim CEO Phone: Phone: (661) 510-0425 E-mail: E-mail: ceo(athecleanenergyalliance.ore Duns: Duns: 117585162 Federal Tax ID Number: Federal Tax ID Number: 84-3839142 Invoices: Invoices: Attn: Attn: Marie Berkuti, Interim Treasurer Phone: Phone: E-mail: E-mail: Scheduling: Scheduling: Attn: Attn: Phone: Phone: E-mail: E-mail: Confirmations: Confirmations: Attn: Attn: Address: Address: Phone: Phone: E-mail: E-mail: Payments: Payments: Attn: Attn: Marie Berkuti, Interim Treasurer Phone: Phone: E-mail: E-mail: Wire Transfer: Wire Transfer: BNK: BNK: River City Bank ABA: ABA: 121133416 ACCT: ACCT: 7714609947 1 Version 2.1 (modified 4/25/00) CCOPY RIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 Credit and Collections: Attn: Phone: E-mail: With additional Notices of an Event of Default or Potential Event of Default to: Attn: Phone: E-mail: Credit and Collections: Attn: Marie Berkuti, Interim Treasurer Phone: E-mail: With additional Notices of an Event of Default or Potential Event of Default to: Hall Energy Law PC Attn: Stephen Hall Phone: (503) 313-0755 Email: steveahallenergylaw.com 2 Version 2.1 (modified 4/25/00) . (£')C0I'YR1GHT 2000 by the Edison Electric htstitute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 The Parties hereby agree that the General Terms and Conditions are incorporated herein, and to the following provisions as provided for in the General Terms and Conditions: Party A Tariff: Party A's effective market-based rate tariff on file with the Federal Energy Regulatory Comm issi on. Party B Tariff: N/A Article Two Transaction Terms and Conditions o Optional provision in Section 2.4. If not checked, inapplicable. Article Four Remedies for Failure • Accelerated Payment of Damages. If not checked, inapplicable. to Deliver or Receive Article Five Events of Default; Remedies •Cross Default for Party A: •Party A: o Other Entity: •Cross Default for Party B: •Party B: CEA o Other Entity: Cross Default Amount $1,000,000 Cross Default Amount $ Cross Default Amount $1,000,000 Cross Default Amount $ 5.6 Closeout Setoff •Option A (Applicable if no other selection is made.) o Option B - Affiliates shall have the meaning set forth in the Agreement unless otherwise specified as follows: •Option C (No Setoft) Article 8 8.1 Party A Credit Protection: Credit and Collateral Requirements (a) Financial Information: o Option A o Option B Sped-R.]: •Option C Specify: (1) The annual report containing audited consolidated financial statements for such fiscal year of Party B as soon as practicable after demand, but in no event later than 180 days after the end of each annual period and such request will be deemed to have been filled if such financial statements are available at https://www.thecleanen ereyal I iance.org/. and (2) quarterly unaudited financial statements for Party B for the first three quarters of its fiscal year as soon as practicable upon demand, but in no event later than 90 days after the 3 Version 2.1 (modified 4/25/00) ©COPY RIG! IT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 applicable quarter. Should any such statements not be available on a timely basis due to a delay in preparation or certification, such delay shall not be an Event of Default so long as the relevant entity diligently pursues the preparation, certification and delivery of the statements. The first quarterly unaudited statement will be provided within 90 days after the fiscal quarter during which Party A begins deliveries under a Transaction. (b) Credit Assurances: •Not Applicable o Applicable (c) Collateral Threshold: •Not Applicable o Applicable If applicable, complete the following: Party B Collateral Threshold: $ provided, however, that Party B's Collateral Threshold shall be zero if an Event of Default or Potential Event of Default with respect to Party B has occurred and is continuing. Party B Independent Amount: $ Party B Rounding Amount: $ (d) Downgrade Event: •Not Applicable o Applicable If applicable, complete the following: o It shall be a Downgrade Event for Party B if Party B's Credit Rating falls below BBB- from S&P or Baa3 from Moody's or if Party B is not rated by either S&P or Moody's. o Other - Specify: Downgrade Event threshold as set forth in the Applicable Confirmation. (e) Guarantor for Party B: N/A Guarantee Amount: N/A 4 Version 2.1 (modified 4125/00) ()COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association 8.2 Party B Credit Protection: (a) Financial Information: o Option A o Option B Specify: o Option C Specify: The annual report containing audited consolidated financial statements for such fiscal year of Party A as soon as practicable after demand, but in no event later than 180 days after the end of each annual period of Party A and unaudited semi-annual financials within 90 days after the end of each semi-annual period of Party A, and such request will be deemed to have been filled if such financial statements are available at Lwebsitel. In all cases the statements shall be for the most recent accounting period and shall be prepared in accordance with generally accepted accounting principles; provided, however, that should any such statements not be available on a timely basis due to a delay in preparation or certification, such delay shall not be an Event of Default so long as the relevant entity diligently pursues the preparation, certification and delivery of the statements. (b) Credit Assurances: TBD following CEA credit review. o Not Applicable o Applicable (c) Collateral Threshold: TBD following CEA credit review. CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 o Not Applicable o Applicable If applicable, complete the following: Party A Collateral Threshold: $ provided, however, that Party A's Collateral Threshold shall be zero if an Event of Default with respect to Party A has occurred and is continuing. Party A Independent Amount: $ Party A Rounding Amount: $ (d) Downgrade Event: TBD following CEA credit review. o Not Applicable o Applicable If applicable, complete the following: o it shall be a Downgrade Event for Party A if Party A's Credit Rating falls below BBB- from S&P or Baa3 from 5 Version 2.1 (modified 4125/00) CCOPYRIG1 IT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 Moody's or if Party A is not rated by either S&P or Moody's. o Other - Specify: It shall be a Downgrade Event for Party A if Party A's Guarantor's Credit Rating falls below BBB- from S&P or Baa3 from Moody's or if Party A's Guarantor is not rated by either S&P or Moody's. (e) Guarantor for Party A: Guarantee Amount: $ Article 10 Confidentiality • Confidentiality Applicable If not checked, inapplicable. Schedule M o Party A is a Governmental Entity or Public Power System •Party B is a Governmental Entity or Public Power System •Add Section 3.6. If not checked, inapplicable •Add Section 8.4. If not checked, inapplicable Other Changes This Master Power Purchase and Sale Agreement incorporates by this reference the changes published in the EEI Errata, Version 1.1, dated July 18, 2007. ARTICLE ONE: GENERAL TERMS AND CONDITIONS 1."Affiliate": Section 1.1 is amended by adding the following sentence at the end of the definition: "Notwithstanding the foregoing, the Parties hereby agree and acknowledge that with respect to Party B the public entities designated as members or participants under the Joint Powers Agreement creating Party B shall not constitute or otherwise be deemed an "Affiliate" for purposes of this Master Agreement or any Confirmation executed in connection therewith." 2."Business Day": Section 1.4 is amended by replacing "Party from whom" with the phrase "Party to whom" and by deleting the first sentence and replacing it to read as follows: "Business Day" means any day except a Saturday, Sunday, the Friday immediately following the Thanksgiving holiday or a Federal Reserve Holiday. 3."Confirmation": Section 1.9 is amended by deleting the reference to "Section 2.3" and replacing it with a reference to "Section 2.1". 4."Force Majeure": Section 1.23 is amended by inserting the word "two." immediately before "foregoing factors" in the thirteenth line. 5."Gains": Section 1.24 is amended by adding before the period at the end thereof the following: "in accordance with Section 5.2" and by adding at the end: "based on the prime rate of interest as published from time to time under The Wall Street Journal for such period." 6 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 6. A new Section 1.26A is added as follows: "1.26A "Joint Powers Agreement" means the Joint Powers Agreement, effective as of November 4, 2019, as amended, providing for the formation of Party B, as such agreement may be further amended or amended and restated." 7. "Letters of Credit": Section 1.27 is amended by deleting the phrase "or a foreign bank with a U.S. branch" and replacing it with the phrase "or a U.S. branch of a foreign bank." 8. "Losses": Section 1.28 is amended by adding to the end thereof: "based on the prime rate of interest as published from time to time under The Wall Street Journal for such period." 9. "Replacement Price": Section 1.51 is amended by adding "for delivery" immediately before "at the Delivery Point" in the second line, and replacing "at Buyer's option" with "absent a purchase" in the fifth line. 10. "S&P": Section 1.52 is amended by replacing "Standard & Poor's Rating Group (a division of McGraw Hill, Inc.) with "S&P Global Ratings". 11. "Sales Price": Section 1.53 is amended by: (I) deleting "at the Delivery Point" from the second line; (ii)replacing "at Seller's option" in the fifth line with "absent a sale"; and (iii)inserting "; provided, however if Seller is unable after using commercially reasonable efforts to resell all or a portion of the Product not received by Buyer, the Sales Price with respect to such unsold Product shall be deemed not greater than zero (0)" after "commercially reasonable manner" in the sixth line. 12. "Settlement Amount": Section 1.56 is amended by deleting the words "pursuant to Section 5.2" and by adding before the period at the end thereof the following: ", as determined in accordance with Section 5.2." 13. "Transaction": Section 1.60 is amended by inserting the words "in writing" immediately following the words "agreed to". ARTICLE TWO: TRANSACTION TERMS AND CONDITIONS I. In Section 2.1, delete the first sentence in its entirety and replace it with the following: "A Transaction, or an amendment, modification or supplement thereto, shall be entered into only upon a writing signed by both Parties." 2. In Section 2.1, the last sentence is deleted in its entirety and replaced with the following: "Each Party agrees not to contest, or assert any defense to, the validity or enforceability of the Transaction entered into in accordance with this Master Agreement based on any lack of authority of the Party or any lack of authority of any employee of the Party to enter into a Transaction; provided, however, Party A acknowledges that no employee of Party B may amend or otherwise materially modify this Master Agreement or a Transaction, or enter into a new Transaction, without the approval of the board of Party B, which may be granted on a prospective basis, and that evidence of such approval, including a certified incumbency setting forth the name and signatures of 7 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Eneru Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 employees of Party B with authority to act on behalf of Party B, will be provided pursuant to Section 10.13." 3.Section 2.3 is deleted in its entirety and replaced with the following: "2.3 Confirmation. A Transaction shall be entered into only by a written confirmation in a form mutually agreeable to both Parties and signed by both Parties ("Confirmation"). Notwithstanding anything to the contrary in this Master Agreement, the Master Agreement and any and all Confirmations may not be amended or modified except by an instrument in writing signed by both of the Parties." 4.Section 2.4 is amended by deleting the words "either orally or" in the sixth line and adding "a" before the word "writing". 5.Section 2.5 is hereby amended by deleting the last two sentences thereof in their entirety. ARTICLE THREE; OBLIGATIONS AND DELIVERIES 1. Section 3.2 is amended by adding to the end thereof: "Product deliveries shall be scheduled in accordance with the then-current applicable tariffs, protocols, operating procedures and scheduling practices for the relevant region." ARTICLE FIVE: EVENTS OF DEFAULT; REMEDIES 1.In Section 5.1 (a), change "three (3) Business Days" to "five (5) Business Days". 2.In Section 5.1(g), delete the phrase "or becoming capable at such time of being declared," on the eighth line of the Section, and add the following at the end of the Section: "provided, however, that no default or event of default shall be deemed to have occurred under this Section 5.1(g) to the extent that any applicable cure period or grace period is available;" 3.in Section 5.1(h)(v), add "made in connection with this Agreement" after "any guaranty". 4.Section 5.1 is further amended by replacing the period at the end of subsection (h) with a semicolon, and adding new subsections which read as follows: "(i) a representation or warranty with respect to the Defaulting Party's financial statement that is false or misleading if such false or misleading statement is not be remedied within five (5) Business Days after written notice; (j)revocation or suspension by the Federal Energy Regulatory Commission of Party A's authorization to make sales at market-based rates, and Party A is unable to reinstate such authorization within ninety (90) days; and (k)A Party or its Guarantor suffering or being the subject of a default, event of default, termination event, breach or other similar condition or event (howsoever expressed) that has not been remedied within the applicable grace periods under any other agreement or instrument (including, without limitation, commodity and financial derivative agreements or transactions) between a Party or one of its Affiliates and the other Party or one of its Affiliates, where the result of such event has been the termination and liquidation of transactions and the acceleration of amounts due thereunder; 8 version 2.1 (modified 4/25/00) OCOPYRIGI IT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 (I) Party B commits an Event of Default under or otherwise defaults under one or more of the Security Documents (as defined below in Schedule M) and such Event of Default or default continues after giving effect to any applicable notice requirement or cure or grace period." 5.Section 5.2 is deleted in its entirety and replaced with the following: "5.2 Effect of Event of Default. If at any time an Event of Default with respect to a Defaulting Party has occurred and is continuing, the Non-Defaulting Party may do one or more of the following: (a) withhold any payments due to the Defaulting Party under this Agreement; (b) suspend performance due to the Defaulting Party under this Agreement; and/or (c) by giving not more than twenty days' notice, designate a day not earlier than the day such notice is effective as an Early Termination Date in respect of all outstanding Transactions (each referred to as a "Terminated Transaction"). The Non-Defaulting Party shall calculate in a commercially reasonable manner a Settlement Amount for each such Terminated Transaction as of the Early Termination Date (or, to the extent that in the reasonable opinion of the Non-Defaulting Party certain of such Terminated Transactions are commercially impracticable to liquidate and terminate or may not be liquidated and terminated under applicable law on the Early Termination Date, then each such Transaction (individually, an "Excluded Transaction") shall be terminated as soon thereafter as reasonably practicable, and upon termination shall be deemed to be a Terminated Transaction and the Termination Payment payable in connection with all such Transactions shall be calculated in accordance with Section 5.3 below. The Gains and Losses for each Terminated Transaction shall be determined by calculating the amount that would be incurred or realized to replace or to provide the economic equivalent of the remaining payments or deliveries in respect of that Terminated Transaction. The Non-Defaulting Party (or its agent) may determine its Gains and Losses by reference to information either available to it internally or supplied by one or more third parties including, without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets. Third parties supplying such information may include, without limitation, dealers in the relevant markets, end-users of the relevant product, information vendors and other sources of market information. If the Non-Defaulting Party's calculation of a Settlement Amount results in an amount that would be due to the Defaulting Party (i.e. the Defaulting Party was in-the-money), then the Settlement Amount shall be deemed to be zero dollars ($0.00)." 6.Section 5.3 is amended by adding "plus, at the option of the Non-Defaulting Party, any cash or other form of liquid security then in the possession of the Defaulting Party or its agent pursuant to Article 8," after the first use of the phrase "due to the Non-Defaulting Party" in the sixth line. 7.The following is added to the end of Section 5.4: "Notwithstanding any provision to the contrary contained in this Agreement, the Non-Defaulting Party shall not be required to pay to the Defaulting Party any amount under Article Five until the • Non-Defaulting Party receives confirmation satisfactory to it in its reasonable discretion that all other obligations of any kind whatsoever of the Defaulting Party to make any payments to the Non- Defaulting Party under this Agreement or otherwise which are due and payable as of the Early Termination Date (including for these purposes amounts payable pursuant to Excluded Transactions) have been fully and finally performed." 8.Section 5.7 is deleted in its entirety and replaced with the following: "Notwithstanding any other provision of this Master Agreement, if an Event of Default shall have occurred and be continuing, the Non-Defaulting Party, upon written notice to the Defaulting Party, shall have the right (i) to suspend performance under any or all Transactions; provided, however, 9 Version 2.1 (modified 4/25/00) COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 in no event shall any such suspension continue for longer than ten (10) NERC Business Days with respect to any single Transaction unless an early Termination Date shall have been declared and notice thereof pursuant to Section 5.2 given, and (ii) to the extent an Event of Default shall have occurred and be continuing to exercise any remedy available at law or in equity." ARTICLE SIX: PAYMENT AND NETTING 1.Section 6.1 is amended by replacing "each Party will render to the other Party" in the last sentence with "the Party owing the lesser amount as determined pursuant to standard wholesale electric industry check-out procedures for the point of delivery associated with each Transaction will transmit to the other Party". 2.Section 6.2 is amended by replacing "each party's" with "the Party owing the lesser amount as determined by standard wholesale electric industry check-out procedures for the point of delivery associated with each Transaction" in the third line; and deleting ", or by other mutually agreeable method(s)," from the second sentence. 3.Section 6.3 is amended by deleting the second sentence in its entirety and replacing it with the following: "In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, the Party disputing the invoice will provide notice of the objection to the other Party no later than the due date for such invoice. The Party that delivered the invoice will review the notice and, if it agrees with the proposed adjustments, make appropriate corrections. If a corrected invoice is received within the same calendar month as the original invoice, payment shall be due in accordance with Section 6.2. If the Parties are not able to resolve an invoice dispute by the last day of the month in which the invoice was delivered, payment of the undisputed portion of the invoice shall be required to be made within five (5) Business Days following written notice from the invoicing Party." 4.In Section 6.3 lines 3, 16 & 18, change "twelve (12) months" to "twenty-four (24) months-. 5.Section 6.4 is amended by deleting "and owing to each other on the same date". ARTICLE SEVEN: LIMITATIONS . Section 7.1 is amended by: (i)adding "SET FORTH IN THIS AGREEMENT" after "INDEMNITY PROVISION" and before "OR OTHERWISE," in the fifth sentence; (ii)adding in the nineteenth line the words "PROVIDED, HOWEVER, NOTHING IN THIS SECTION SHALL AFFECT THE ENFORCEABILITY OF THE PROVISIONS OF THIS AGREEMENT EXPRESSLY ALLOWING FOR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO REMEDIES FOR FAILURE TO DELIVER/RECEIVE IN SECTIONS 4.1 AND 4.2, AND CALCULATION AND PAYMENT OF THE TERMINATION PAYMENT IN SECTIONS 5.2 AND 5.3." immediately after the words "ANY INDEMNITY PROVISIONS SET FORTH IN THIS AGREEMENT OR OTHERWISE"; and (iii)adding at the end of the last sentence the words "AND ARE NOT PENALTIES." 10 Version 2.1 (modified 4/25/00) °COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 ARTICLE EIGHT: CREDIT AND COLLATERAL REQUIREMENTS 1.In Sections 8.1(b), 8.1(c), 8.2(b) and 8.2(c), change "three (3) Business Days" to "five (5) Business Days". 2.A new Section 8.4 is added as follows: "In no event shall a Party be required to provide Performance Assurances that in the aggregate exceeds the Termination Payment." 3.A new Section 8.5. "UCC Waiver," is added as follows: "Section 8.5: Section 8 sets forth the entirety of the agreement of the Parties regarding credit, collateral and adequate assurances. Except as expressly set forth in the options elected by the Parties in respect of Sections 8.1 and 8.2, neither Party: (a)has or will have any obligation to post margin, provide letters of credit, pay deposits, make any other prepayments or provide any other financial assurances, in any form whatsoever, or (b)will have reasonable grounds for insecurity with respect to the creditworthiness of a Party or Member that is complying with the relevant provisions of Section 8 of this Agreement; and all implied rights relating to financial assurances arising from Section 2-609 of the Uniform Commercial Code or case law applying similar doctrines, are hereby waived. ARTICLE TEN: MISCELLANEOUS 1. In Section 10.2, delete the phrase "(including any Confirmation accepted in accordance with Section 2.3)" from Sections 10.2(1i), (iii), (iv), (vi), (vii), (viii), (x) and (xi). 2. After Section 10.2(xii) add the following: "(xiii) each Transaction that is not executed or traded on a trading facility, as defined in the Commodity Exchange Act, is subject to individual negotiation by the Parties; (xiv)it intends that all payments made or to be made by one Party to the other Party pursuant to this Agreement constitute "settlement payments"; (xv)it intends that all transfers of Performance Assurance by one Party to the other Party under this Agreement constitute "margin payments"; (xvi)it intends that each Party's rights under Section 5.2, Declaration of an Early Termination Date and Calculation of Settlement Amounts, and Section 5.3, Net Out of Settlement Amounts constitute a "contractual right to liquidate" Transactions; (xvii)it is an "eligible commercial entity" within the meaning of Section la (17) of the Commodity Exchange Act, as amended (the "Commodity Exchange Act"); and (xviii)it is an "Eligible Contract Participant" as defined in Section la(18) of the Commodity Exchange Act, as amended, 7 U.S.C. § la(18)." 3. Section 10.2(ix) is deleted in its entirety and replaced with the following: Il Version 2.1 (modified 4/25/00) ()COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 "Each Party intends that it is a "forward contract merchant" within the meaning of the Title 11 of the United States Code, as amended (the "Bankruptcy Code"), all payments made or to be made by one Party to the other Party pursuant to this Agreement constitute a "settlement payment" within the meaning of the Bankruptcy Code, all transfers of Performance Assurance by one Party to the other Party under this Agreement constitute a "margin payment" within the meaning of the Bankruptcy Code, each Party shall have the "contractual right" to terminate, liquidate, accelerate, or offset the transaction as a "master netting agreement participant" within the meaning of the Bankruptcy Code, electricity delivered hereunder constitutes a "good" under Section 503(b)(9) of the Bankruptcy Code, and the Parties are entities entitled to the rights under, and protections afforded by, Sections 362, 546, 553, 556, 560, 561 and 562 of the Bankruptcy Code." 4.Section 10.5 is amended by deleting the words from the beginning of clause (ii) through the words prior to "provided, however" and replacing them with: "(ii) transfer or assign this Agreement to an Affiliate of such Party so long as (x) such Affiliate's creditworthiness is equal to or higher than that of such Party or the Guarantor, if any, for such Party, or (y) the obligations of such Affiliate are guaranteed by such Party or its Guarantor, if any, in accordance with a guaranty agreement in form and substance satisfactory to the other Party, and (iii) transfer or assign this Agreement to any person or entity succeeding to all or substantially all of the assets of such Party whose creditworthiness is equal to or higher than that of such Party or its Guarantor, if any." 5.Section 10.6 is amended by deleting the sentence "EACH PARTY WAIVES ITS RESPECTIVE RIGHT TO ANY JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT." and adding the following after the last line: "(a) EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HEREBY (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. (b) "EACH PARTY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL COURTS LOCATED IN SAN DIEGO, CALIFORNIA, FOR ANY ACTION OR PROCEEDING RELATING TO MIS AGREEMENT OR ANY TRANSACTION, AND EXPRESSLY WAIVES ANY OBJECTION IT MAY HAVE TO SUCH JURISDICTION OR THE CONVENIENCE OF SUCH FORUM." The Parties intend for the waiver in clause (a) above to be enforced to the fullest extent permitted under applicable law as in effect from time to time. To the extent that the waiver in clause (a) above is not enforceable at the time that any action or proceeding is filed in a court of the State of California by or against any Party in connection with any of the transactions contemplated by this Agreement, then (i) the court shall, and is hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear and determine all of the issues in such action or proceeding (whether of fact or of law) and to report a statement of decision, provided that at the option of any Party, any such issues pertaining to a "provisional remedy" as defined in California Code of Civil Procedure 12 Version 2.1 (modific.d 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 Section 1281.8 shall be heard and determined by the court, and (ii) the Parties shall share equally all fees and expenses of any referee appointed in such action or proceeding." 6. In Section 10.6, change "NEW YORK" to "CALIFORNIA" 7. Section 10.8 is amended by: (i)adding at the end of the second to last sentence: "and the rights of either Party pursuant to (i) Article 5, (ii) Section 7.1, (iii) Section 10.11 (iv) Waiver of Jury Trial provisions, if applicable, (v) the obligation of either Party to make payments hereunder, (vi) Section 10.6 (vii) Section 10.13 and (viii) section 10.4 shall also survive the termination of the Agreement or any Transaction."; and (ii)adding the following to the end thereof: "This Master Agreement may be signed in any number of counterparts with the same effect as if the signatures to the counterparts were upon a single instrument. Delivery of an executed signature page of this Master Agreement and any Confirmation by electronic mail transmission (including PDF) shall be the same as delivery of a manually executed signature page." 8. In Section 10.9, insert "copies of' after "examine" in line 2. 9. Section 10.10 is amended by adding the following after the last sentence: "Each Party further agrees that, for purposes of this Agreement, the other Party is not a "utility" as such term is used in 11 U.S.C. Section 366, and each Party waives and agrees not to assert the applicability of the provisions of 11 U.S.C. Section 366 in any bankruptcy proceeding wherein such Party is a debtor. In any such proceeding, each Party further waives the right to assert that the other Party is a provider of last resort." 10. Section 10.11 is amended by inserting "are intended to" after "Transactions". 11. Section 10.11 is deleted in its entirety and replaced with the following: "10.11 Confidentiality. If the Parties have elected on the Cover Sheet to make this Section 10.11 applicable to this Master Agreement, neither Party shall disclose the terms or conditions of a Transaction under this Master Agreement or the completed Cover Sheet to this Master Agreement to a third party (other than the Party's employees, lenders, counsel, accountants or advisors, or any such representatives of a Party's Affiliates, who have a need to know such information and have agreed to keep such terms confidential) except in order to comply with any applicable law, regulation, or any exchange, control area or independent system operator rule or in connection with any court or regulatory proceeding applicable to such Party or any of its Affiliates; provided, however, each Party shall, to the extent practicable, use reasonable efforts to prevent or limit the disclosure. The Parties shall be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with, this confidentiality obligation. The Parties agree and acknowledge that nothing in this Section 10.11 prohibits a Party from disclosing any one or more of the commercial terms of a Transaction (other than the name of the other Party unless otherwise agreed to in writing by the Parties) to any industry price source for the purpose of aggregating and reporting such information in the form of a published energy price index. Party A and Party B acknowledge and agree that the Master Agreement and any Confirmations executed in connection therewith are subject to the requirements of the California Public Records Act (Government Code Section 6250 et seq.). In order to designate information as confidential, the disclosing party must clearly stamp and identify the specific portion of the material designated with the word "Confidential." The Parties agree not to over-designate material as confidential. Over- 13 Version 2.1 (modified 4/25/00) °COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 designation would include stamping whole agreements, entire pages or series of pages as Confidential that clearly contain information that is not confidential. Upon request or demand of any third person or entity not a Party hereto to Party B pursuant to the California Public Records Act for production, inspection and/or copying of Confidential Information ("Requested Confidential Information"), Party B will as soon as practical notify Party A in writing via email that such request has been made. Party A will be solely responsible for taking at its sole expense whatever legal steps are necessary to prevent release of the Requested Confidential Information to the third party by Party B. If Party A takes no such action after receiving the foregoing notice from Party B, Party B shall, at its discretion, be permitted to comply with the third party's request or demand and is not required to defend against it. If Party A does take or attempt to take such action, Party B shall provide timely and reasonable cooperation to Party A, if requested by Party A, and Party A agrees to indemnify and hold harmless Party B, its officers, employees and agents ("Party B Indemnified Parties"), from any claims, liability, award of attorneys' fees, or damages, and to defend any action, claim or lawsuit brought against any of Party B Indemnified Parties for Party B's refusal to disclose any Requested Confidential Information." 12. The following Mobile-Sierra clause is added as a new Section 10.12: "10.12 Standard of Review/Modifications. (a)Absent the prior mutual written agreement of all parties to the contrary, the standard of review for any proposed changes to the rates, terms, and/or conditions of service of this Agreement or any Transaction entered into thereunder, whether proposed by a Party, a non-party or FERC acting sua sponte, shall be the Mobile Sierra "public interest" standard of review set forth in Morgan Stanley Capital Group Inc. v. Public Utility District No. I of Snohomish County, Nos. 06-1457, 128 S.Ct. 2733 (2008) and consistent with the order of the Supreme Court in NRG Power Marketing, LLC, et al., v. Maine Public Utilities Commission et al. No. 08-674, 130 S.Ct. 693 (2010) ("NRG Order"). As to all other persons, the Parties intend and agree that the same standard applies, to the maximum degree permitted under the NRG Order. (b)In addition, and notwithstanding the foregoing subsection (a), to the fullest extent permitted by applicable law, each Party, for itself and its successors and assigns, hereby expressly and irrevocably waives any rights it can or may have, now or in the future, whether under §§ 205 and/or 206 of the Federal Power Act or otherwise, to seek to obtain from FERC by any means, directly or indirectly (through complaint, investigation or otherwise), and each hereby covenants and agrees not at any time to seek to so obtain, an order from FERC changing any section of this Agreement specifying the rate, charge, classification, or other term or condition agreed to by the Parties, it being the express intent of the Parties that, to the fullest extent permitted by applicable law, neither Party shall unilaterally seek to obtain from FERC any relief changing the rate, charge, classification, or other term or condition of this Agreement, notwithstanding any subsequent changes in applicable law or market conditions that may occur. In the event it were to be determined that applicable law precludes the Parties from waiving their rights to seek changes from FERC to their market-based power sales contracts (including entering into covenants not to do so) then this subsection (b) shall not apply, provided that, consistent with the foregoing subsection (a), neither Party shall seek any such changes except solely under the "public interest" application of the "just and reasonable" standard of review and otherwise as set forth in the foregoing section (a)." 13. The following is added as a new Section 10.13: "Party A's Deliveries. Upon request of Party B, Party A shall provide to Party B (i) a certificate of good standing issued by thejStatej Secretary of State as of a recent date, (ii) resolutions of the managers, members, or other governing body, as applicable, of Party A approving the execution, 14 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 delivery and performance of this Master Agreement and any Confirmations executed in connection therewith, and (iii) the incumbency and signatures of the signatories of Party A executing this Master Agreement and any Confirmations executed in connection herewith." 14.The following is added as a new Section 10.14: "Physical Transactions. The Parties understand and agree that the Transactions under this Agreement are physical transactions for deferred delivery, and that the Parties contemplate making or taking physical delivery of electric energy. Party B is a California community choice aggregator engaged in the business of delivering electric energy to its retail load and routinely makes or takes delivery of electric energy in order to provide service to its retail electric customers." 15.The following is added as a new Section 10.15: "Imaged Agreement. Any original executed Agreement, Confirmation or other related document may be photocopied and stored on computer tapes and disks (the "Imaged Agreement"). The Imaged Agreement, if introduced as .evidenced on paper, the Confirmation, if introduced as evidence in automated facsimile form, and all computer records of the foregoing, if introduced as evidence in printed format, in any judicial, arbitration, mediation or administrative proceedings, will be admissible as between the Parties to the same extent and under the same conditions as other business records originated and maintained in documentary form. Neither Party shall object to the admissibility of the Confirmation or the Imaged Agreement on the basis that such were not originated or maintained in documentary form under the hearsay rule, the best evidence rule or other rule of evidence." 16.The following is added as a new Section 10.16: "Index Transactions. If the Contract Price for a Transaction is determined by reference to a third- party information source, then the following provisions shall be applicable to such Transaction: (i) Market Disruption. If a Market Disruption Event occurs during a Determination Period, the Floating Price for the affected Trading Day(s) shall be determined by reference to the Floating Price specified in the Transaction for the first Trading Day thereafter on which no Market Disruption Event exists; provided, however, if the Floating Price is not so determined within three (3) Business Days after the first Trading Day on which the Market Disruption Event occurred or existed, then the Parties shall negotiate in good faith to agree on a Floating Price (or a method for determining a Floating Price), and if the Parties have not so agreed on or before the twelfth Business Day following the first Trading Day on which the Market Disruption Event occurred or existed, then the Floating Price shall be determined in good faith by taking the average of two dealer quotes obtained from dealers of the highest credit standing which satisfy all the criteria that the Seller applies generally at the time in deciding to offer or to make an extension of credit. Notwithstanding the foregoing and subject to time limitations set forth in Sub-Section (ii) below, if the Parties have determined a Floating Price pursuant to this Sub-Section (i) and at a later date the responsible Price Source announces or publishes the relevant Floating Price, then such Floating Price shall be treated as a corrected price pursuant to Sub-Section (ii) below." "Determination Period" means eaCh calendar month, a part or all of which, is within the Delivery Period of a Transaction. "Exchange" means, in respect of a Transaction, the exchange or principal trading market specified in the relevant Transaction. "Floating Price" means a Contract Price specified in a Transaction that is based upon a Price Source. 15 Version 2.1 (modified 4/25/00) CCOPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 "Market Disruption Event" means, with respect to any Price Source, any of the following events: (a) the failure of the Price Source to announce or publish the specified Floating Price or information necessary for determining the Floating Price; (b) the failure of trading to commence or the permanent discontinuation or material suspension of trading in the relevant options contract or commodity on the Exchange or in the market specified for determining a Floating Price; (c) the temporary or permanent discontinuance or unavailability of the Price Source; (d) the temporary or permanent closing of any Exchange specified for determining a Floating Price; or (e) a material change in the formula for or the method of determining the Floating Price. "Price Source" means, in respect of a Transaction, the publication (or such other origin of reference, including an Exchange) containing (or reporting) the specified price (or prices from which the specified price is calculated) specified in the relevant Transaction. "Trading Day" means a day in respect of which the relevant Price Source published the Floating Price. (ii)Corrections to Published Prices. For purposes of determining a Floating Price for any day, if the price published or announced on a given day and used or to be used to determine a relevant price is subsequently corrected and the .correction is published or announced by the person responsible for that publication or announcement within three (3) years of the original publication or announcement, either Party may notify the other Party of (i) that correction and (ii) the amount (if any) that is payable as a result of that correction. If, not later than thirty (30) days after publication or announcement of that correction, a Party gives notice that an amount is so payable, the Party that originally either received or retained such amount will, not later than three (3) Business Days after the effectiveness of that notice, pay, subject to any applicable conditions precedent, to the other Party that amount, together with interest at the Interest Rate for the period from and including the day on which payment originally was (or was not) made to but excluding the day of payment of the refund or payment resulting from that correction. (iii)Calculation of Floating Price. For purposes of calculating a Floating Price, all numbers shall be rounded to four (4) decimal places. if the fifth (5th) decimal number is five (5) or greater, then the fourth (4th) decimal number shall be increased by one (1), and if the fifth (5th) decimal number is less than five (5), then the fourth (4th) decimal number shall remain unchanged." 17.The following is added as a new Section 10.17: "Generally Accepted Accounting Principles. Any reference to "generally accepted accounting principles" shall mean, with respect to an entity and its financial statements, generally accepted accounting principles, consistently applied, adopted or used in the jurisdiction of the entity whose financial statements are being considered for the purposes of this Agreement." 18.The following is added as a new Section 10.18: "No Recourse Against Constituent Members of Party B. Party B is organized as a Joint Powers Authority in accordance with the Joint Exercise of Powers Act of the State of California (Government Code Section 6500, et seq.) and is a public entity separate from its constituent members. Party B will solely be responsible for all debts, obligations and liabilities accruing and arising out of this Agreement. Party A will have no rights and will not make any claims, take any actions or assert any remedies against any of Party B's constituent members, or the officers, directors, advisors, contractors, consultants or employees of Party B or Party B's constituent members, in connection with this Agreement." 16 Version 2.1 (modified 4/25/00) CCOPYR Karr 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 SCHEDULE M: GOVERNMENTAL ENTITY OR PUBLIC POWER SYSTEM Schedule M is hereby deleted in its entirety and replaced with the following: 1.The Patties agree to add the following definitions to Article One: "Act" means the Joint Exercise of Powers Act of California (Government Code Section 6500 et seq.). "Collateral Agent" has the meaning in the Security Documents. "Depositary Bank" has the meaning in the Security Documents. "Intercreditor and Collateral Agency Agreement" means the Intercreditor and Collateral Agency Agreement, among the Collateral Agent, Party A, Party B and the PPA Providers party thereto from time to time. "Secured Account" means the Lockbox Account (as defined in the Security Agreement). "Secured Creditors" means each PPA Provider that is a party to the Intercreditor and Collateral Agency Agreement and its respective successors and assigns. "Security Agreement" means the Security Agreement, between Party B and Collateral Agent, as collateral agent for the benefit of the Secured Creditors. "Security Documents" means, collectively, the Intercreditor and Collateral Agency Agreement, the Security Agreement and the Account Control Agreement, among the Depositary Bank, Party B and the Collateral Agent. "Special Fund" means the Secured Account, which is set aside and pledged to satisfy Party B's obligations hereunder and out of which amounts shall be paid to satisfy all of Party B's obligations under this Master Agreement for the entire Delivery Period. 2.The following sentence shall be added to the end of the definition of "Force Majeure- in Article One: "If the Claiming Party is a Governmental Entity or Public Power System, Force Majeure does not include any action taken by the Governmental Entity or Public Power System in its governmental capacity." 3.The Parties agree to add the following sections to Article Three: "Section 3.4 Party B 's Deliveries. Upon request by Party A, Party B shall provide Party A (a) certified copies of all ordinances, resolutions, public notices and other documents evidencing the necessary authorizations with respect to the execution, delivery and performance by Party B of this Master Agreement and (b) the incumbency and signatures of the signatories of Party B executing this Master Agreement and any Confirmations executed in connection herewith, and setting forth the name and signatures of employees of Party B with authority to act on behalf of Party B. Section 3.5 No Immunity Claim. Party B warrants and covenants that with respect to its contractual obligations hereunder and performance thereof, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to the Secured Account from (a) suit, (b) jurisdiction of court (provided that such court is located within a venue permitted under the I 7 Version 2.1 (modified 4/25/00) OCOPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 Agreement), (c) relief by way of injunction, order for specific performance or recovery of property, (d) attachment of assets, or (e) execution or enforcement of any judgment; provided, however, that nothing in this Agreement shall waive the obligations and/or rights set forth in the California Government Claims Act (Government Code Section 810 et seq.). Section 3.6 Party B Security. With respect to each Transaction, Party B shall have created and set aside a Special Fund and shall have entered into the Security Documents." 4.The Parties agree to add the following section to Article Eight: "Section 8.4 Party B Security. As credit protection to Party A, and as a condition to the effectiveness of the Confirmation, Party A and Party B shall have entered into the Security Documents, each in form and substance reasonably satisfactory to Party A, and such Security Documents shall have been duly executed and delivered by the Parties and by all third party signatories as contemplated therein and shall be in full force and effect. Party A shall have the rights and remedies specified in the Security Documents and Party B shall comply with its duties, obligations and responsibilities as specified therein." 5.The Parties agree to add the following representations and warranties to Section 10.2: "Party B represents and warrants to Party A continuing throughout the term of this Master Agreement, with respect to this Master Agreement and each Transaction, as follows: (i) all acts necessary to the valid execution, delivery and performance of this Master Agreement, including without limitation, to the extent applicable, competitive bidding, public notice, election, referendum, prior appropriation or other required procedures has or will be taken and performed as required under the Act and all applicable laws, ordinances, or other applicable regulations, (ii) all persons making up the governing body of Party B are the duly elected or appointed incumbents in their positions and hold such positions in good standing in accordance with the Act and other applicable laws, (iii) entry into and performance of this Master Agreement by Party B are for a proper public purpose within the meaning of the Act and all other relevant constitutional, organic or other governing documents and applicable law, (iv) the term of this Master Agreement does not extend beyond any applicable limitation imposed by the Act or other relevant constitutional, organic or other governing documents and applicable law, (v) Party B's obligations to make payments with respect to this Master Agreement and each Transaction are to be made solely from the Special Fund, (vi) entry into and performance of this Master Agreement and each Transaction by Party B will not adversely affect the, exclusion from gross income for federal income tax purposes of interest on any obligation of Party B or any members of Party B otherwise entitled to such exclusion, and (vii) obligations to make payments hereunder do not constitute any kind of indebtedness of Party B or create any kind of lien on, or security interest in, any property or revenues of Party B." 6.The Parties agree to add the following sentence at the end of Section 10.6 - Governing Law: "NOTWITHSTANDING THE FOREGOING, TN RESPECT OF THE APPLICABILITY OF THE ACT AS HEREIN PROVIDED, THE LAWS OF THE STATE OF CALIFORNIA SHALL APPLY." SCHEDULE P: PRODUCTS AND RELATED DEFINITIONS I. The Parties agree to add the following definitions to Schedule P: "CABO Energy" means with respect to a Transaction, a Product under which the Seller shall sell and the Buyer shall purchase a quantity of energy equal to the hourly quantity without Ancillary I 8 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association CONFIDENTIAL CEA TEMPLATE 5 JANUARY 2021 Services (as defined in the California Independent System Operator ("CAISO") Tariff) that is or will be scheduled as a schedule coordinator to schedule coordinator transaction pursuant to the applicable tariff and protocol provisions of the CAISO tariff, as amended from time to time for which the only excuse for failure to deliver or receive is an "Uncontrollable Force" as defined in the CAISO Tariff." "West Firm" or "WSPPC-Firm" means with respect to a Transaction, a Product defined by the WSPP Agreement as amended, in Service Schedule C as Firm Capacity/Energy Sale or Exchange Service." ""WSPP Agreement" means the WSPP as amended from time to time." 2.The Parties agree to add the following new Section 7 to Schedule P: "Other Products and Service Levels: If the Parties agree to a service level defined by a different agreement (e.g., the WSPP Agreement, the California Independent System Operator tariff, etc.) for a particular Transaction, then, unless the Parties expressly state and agree that all the terms and conditions of such other agreement will apply, such reference to a service level/product shall be defined by such other agreement, including, if applicable, the regional reliability requirements and guidelines as well as the excuses for performance, Force Majeure, Uncontrollable Forces, or other such excuses applicable to such other agreement, to the extent inconsistent with the terms of this Agreement, but all other terms and conditions of this Agreement shall remain applicable including, without limitation, Section 2.2." 3.The Parties may from time to time by notice to each other mutually agree to adopt product definitions, delivery point language and definitions, and conversion conventions, that are posted by the Edison Electric Institute to its website as optional language for the Master Power Purchase and Sale Agreement. [Signatures appear on the following page.] 19 Version 2A (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association IN WITNESS WHEREOF, the Parties have caused this Master Agreement to be duly executed as of the Effective Date. CLEAN ENERGY ALLIANCE, a California joint powers authority By: By: Name: Name: Title: Title: APPROVED as to form: By: Name: Title: DISCLAIMER: This Master Power Purchase and Sale Agreement was prepared by a committee of representatives of Edison Electric Institute ("EEI") and National Energy Marketers Association ("NEM") member companies to facilitate orderly trading in and development of wholesale power markets. Neither EEI nor NEM nor any member company nor any of their agents, representatives or attorneys shall be responsible for its use, or any damages resulting therefrom. By providing this Agreement EEI and NEM do not offer legal advice and all users are urged to consult their own legal counsel to ensure that their commercial objectives will be achieved and their legal interests are adequately protected. Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association GENERAL TERMS AND CONDITIONS ARTICLE ONE: GENERAL DEFINITIONS 1.1 "Affiliate" means, with respect to any person, any other person (other than an individual) that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such person. For this purpose, "control" means the direct or indirect ownership of fifty percent (50%) or more of the outstanding capital stock or other equity interests having ordinary voting power. 1.2 "Agreement" has the meaning set forth in the Cover Sheet. 1.3 "Bankrupt" means with respect to any entity, such entity (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it, (ii) makes an assignment or any general arrangement for the benefit of creditors, (iii) otherwise becomes bankrupt or insolvent (however evidenced), (iv) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (v) is generally unable to pay its debts as they fall due. 1.4 "Business Day" means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday. A Business Day shall open at 8:00 a.m. and close at 5:00 p.m. local time for the relevant Party's principal place of business. The relevant Party, in each instance unless otherwise specified, shall be the Party from whom the notice, payment or delivery is being sent and by whom the notice or payment or delivery is to be received. 1.5 "Buyer" means the Party to a Transaction that is obligated to purchase and receive, or cause to be received, the Product, as specified in the Transaction. 1.6 "Call Option" means an Option entitling, but not obligating, the Option Buyer to purchase and receive the Product from the Option Seller at a price equal to the Strike Price for the Delivery Period for which the Option may be exercised, all as specified in the Transaction. Upon proper exercise of the Option by the Option Buyer, the Option Seller will be obligated to sell and deliver the Product for the Delivery Period for which the Option has been exercised. 1.7 "Claiming Party" has the meaning set forth in Section 3.3. 1.8 "Claims" means all third party claims or actions, threatened or filed and, whether groundless, false, fraudulent or otherwise, that directly or indirectly relate to the subject matter of an indemnity, and the resulting losses, damages, expenses, attorneys' fees and court costs, whether incurred by settlement or otherwise, and whether such claims or actions are threatened or filed prior to or after the termination of this Agreement. 1.9 "Confirmation" has the meaning set forth in Section 2.3. 1.10 "Contract Price" means the price in $U.S. (unless otherwise provided for) to be paid by Buyer to Seller for the purchase of the Product, as specified in the Transaction. 21 Version 2.1 (modified 4/25/00) CCOPYRIGH'I' 2000 by the Edison Electric Institute and National Energy Marketers Association 1.11 "Costs" means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other similar third party transaction costs and expenses reasonably incurred by such Party either in terminating any arrangement pursuant to which it has hedged its obligations or entering into new arrangements which replace a Terminated Transaction; and all reasonable attorneys' fees and expenses incurred by the Non-Defaulting Party in connection with the termination of a Transaction. 1.12 "Credit Rating" means, with respect to any entity, the rating then assigned to such entity's unsecured, senior long-term debt obligations (not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then the rating then assigned to such entity as an issues rating by S&P, Moody's or any other rating agency agreed by the Parties as set forth in the Cover Sheet. 1.13 "Cross Default Amount" means the cross default amount, if any, set forth in the Cover Sheet for a Party. 1.14 "Defaulting Party" has the meaning set forth in Section 5.1. 1.15 "Delivery Period" means the period of delivery for a Transaction, as specified in the Transaction. 1.16 "Delivery Point" means the point at which the Product will he delivered and received, as specified in the Transaction. 1.17 "Downgrade Event" has the meaning set forth on the Cover Sheet. 1.18 "Early Termination Date" has the meaning set forth in Section 5.2. 1.19 "Effective Date" has the meaning set forth on the Cover Sheet. 1.20 "Equitable Defenses" means any bankruptcy, insolvency, reorganization and other laws affecting creditors' rights generally, and with regard to equitable remedies, the discretion of the court before which proceedings to obtain same may be pending. 1.21 "Event of Default" has the meaning set forth in Section 5.1. 1.22 "FERC" means the Federal Energy Regulatory Commission or any successor government agency. 1.23 "Force Majeure" means an event or circumstance which prevents one Party from performing its obligations under one or more Transactions, which event or circumstance was not anticipated as of the date the Transaction was agreed to, which is not within the reasonable control of, or the result of the negligence of, the Claiming Party, and which, by the exercise of due diligence, the Claiming Party is unable to overcome or avoid or cause to be avoided. Force Majeure shall not be based on (i) the loss of Buyer's markets; (ii) Buyer's inability economically to use or resell the Product purchased hereunder; (iii) the loss or failure of Seller's supply; or (iv) Seller's ability to sell the Product at a price greater than the Contract Price. Neither Party may raise a claim of Force Majeure based in whole or in part on curtailment by a Transmission Provider 22 Version 2.1 (modified 4/25/00) COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association unless (i) such Party has contracted for firm transmission with a Transmission Provider for the Product to be delivered to or received at the Delivery Point and (ii) such curtailment is due to "force majeure" or "uncontrollable force" or a similar term as defined under the Transmission Provider's tariff; provided, however, that existence of the foregoing factors shall not be sufficient to conclusively or presumptively prove the existence of a Force Majeure absent a showing of other facts and circumstances which in the aggregate with such factors establish that a Force Majeure as defined in the first sentence hereof has occurred. The applicability of Force Majeure to the Transaction is governed by the terms of the Products and Related Definitions contained in Schedule P. 1.24 "Gains" means, with respect to any Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting from the termination of a Terminated Transaction, determined in a commercially reasonable manner. 1.25 "Guarantor" means, with respect to a Party, the guarantor, if any, specified for such Party on the Cover Sheet. 1.26 "Interest Rate" means, for any date, the lesser of (a) the per annum rate of interest equal to the prime lending rate as may from time to time be published in The Wall Street Journal under "Money Rates" on such day (or if not published on such day on the most recent preceding day on which published), plus two percent (2%) and (b) the maximum rate permitted by applicable law. 1.27 "Letter(s) of Credit" means one or more irrevocable, transferable standby letters of credit issued by a U.S. commercial bank or a foreign bank with a U.S. branch with such bank having a credit rating of at least A- from S&P or A3 from Moody's, in a form acceptable to the Party in whose favor the letter of credit is issued. Costs of a Letter of Credit shall be borne by the applicant for such Letter of Credit. 1.28 "Losses" means, with respect to any Party, an amount equal to the present value of the economic loss to it, if any (exclusive of Costs), resulting from termination of a Terminated Transaction, determined in a commercially reasonable manner. 1.29 "Master Agreement" has the meaning set forth on the Cover Sheet. 1.30 "Moody's" means Moody's Investor Services, Inc. or its successor. 1.31 "NERC Business Day" means any day except a Saturday, Sunday or a holiday as defined by the North American Electric Reliability Council or any successor organization thereto. A NERC Business Day shall open at 8:00 a.m. and close at 5:00 p.m. local time for the relevant Party's principal place of business. The relevant Party, in each instance unless otherwise specified, shall be the Party from whom the notice, payment or delivery is being sent and by whom the notice or payment or delivery is to be received. 1.32 "Non-Defaulting Party" has the meaning set forth in Section 5.2. 1.33 "Offsetting Transactions" mean any two or more outstanding Transactions, having the same or overlapping Delivery Period(s), Delivery Point and payment date, where under one or 23 Version 2.1 (modified 4/25/00) CCOPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association more of such Transactions, one Party is the Seller, and under the other such Transaction(s), the same Party is the Buyer. 1.34 "Option" means the right but not the obligation to purchase or sell a Product as specified in a Transaction. 1.35 "Option Buyer" means the Party specified in a Transaction as the purchaser of an option, as defined in Schedule'''. 1.36 "Option Seller" means the Party specified in a Transaction as the seller of an option , as defined in Schedule P. 1.37 "Tarty A Collateral Threshold" means the collateral threshold, if any, set forth in the Cover Sheet for Party A. 1.38 "Party B Collateral Threshold" means the collateral threshold, if any, set forth in the Cover Sheet for Party B. 1.39 "Party A Independent Amount" means the amount, if any, set forth in the Cover Sheet for Party A. 1.40 "Party B Independent Amount" means the amount, if any, set forth in the Cover Sheet for Party B. 1.41 "Party A Rounding Amount" means the amount, if any, set forth in the Cover Sheet for Party A. 1.42 "Party B Rounding Amount" means the amount, if any, set forth in the Cover Sheet for Party B. 1.43 "Party A Tariff' means the tariff, if any, specified in the Cover Sheet for Party A. 1.44 "Party B Tariff' means the tariff, if any, specified in the Cover Sheet for Party B. 1.45 "Performance Assurance" means collateral in the form of either cash, Letter(s) of Credit, or other security acceptable to the Requesting Party. 1.46 "Potential Event of Default" means an event which, with notice or passage of time or both, would constitute an Event of Default. 1.47 "Product" means electric capacity, energy or other product(s) related thereto as specified in a Transaction by reference to a Product listed in Schedule P hereto or as otherwise specified by the Parties in the Transaction. 1.48 "Put Option" means an Option entitling, but not obligating, the Option Buyer to sell and deliver the Product to the Option Seller at a price equal to the Strike Price for the Delivery Period for which the option may be exercised, all as specified in a Transaction. Upon proper 24 Version 2.1 (modified 4/25/00) CCOPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association exercise of the Option by the Option Buyer, the Option Seller will be obligated to purchase and receive the Product. 1.49 "Quantity" means that quantity of the Product that Seller agrees to make available or sell and deliver, or cause to be delivered, to Buyer, and that Buyer agrees to purchase and receive, or cause to be received, from Seller as specified in the Transaction. 1.50 "Recording" has the meaning set forth in Section 2.4. 1.51 "Replacement Price" means the price at which Buyer, acting in a commercially reasonable manner, purchases at the Delivery Point a replacement for any Product specified in a Transaction but not delivered by Seller, plus (i) costs reasonably incurred by Buyer in purchasing such substitute Product and (ii) additional transmission charges, if any, reasonably incurred by Buyer to the Delivery Point, or at Buyer's option, the market price at the Delivery Point for such Product not delivered as determined by Buyer in a commercially reasonable manner; provided, however, in no event shall such price include any penalties, ratcheted demand or similar charges, nor shall Buyer be required to utilize or change its utilization of its owned or controlled assets or market positions to minimize Seller's liability. For the purposes of this definition, Buyer shall be considered to have purchased replacement Product to the extent Buyer shall have entered into one or more arrangements in a commercially reasonable manner whereby Buyer repurchases its obligation to sell and deliver the Product to another party at the Delivery Point. 1.52 "S&P" means the Standard & Poor's Rating Group (a division of McGraw-Hill, Inc.) or its successor. 1.53 "Sales Price" means the price at which Seller, acting in a commercially reasonable manner, resells at the Delivery Point any Product not received by Buyer, deducting from such proceeds any (i) costs reasonably incurred by Seller in reselling such Product and (ii) additional transmission charges, if any, reasonably incurred by Seller in delivering such Product to the third party purchasers, or at Seller's option, the market price at the Delivery Point for such Product not received as determined by Seller in a commercially reasonable manner; provided, however, in no event shall such price include any penalties, ratcheted demand or similar charges, nor shall Seller be required to utilize or change its utilization of its owned or controlled assets, including contractual assets, or market positions to minimize Buyer's liability. For purposes of this definition, Seller shall be considered to have resold such Product to the extent Seller shall have entered into one or more arrangements in a commercially reasonable manner whereby Seller repurchases its obligation to purchase and receive the Product from another party at the Delivery Point. 1.54 "Schedule" or "Scheduling" means the actions of Seller, Buyer and/or their designated representatives, including each Party's Transmission Providers, if applicable, of notifying, requesting and confirming to each other the quantity and type of Product to be delivered on any given day or days during the Delivery Period at a specified Delivery Point. 1.55 "Seller" means the Party to a Transaction that is obligated to sell and deliver, or cause to be delivered, the Product, as specified in the Transaction. 25 Version 2.1 (modified 4/25/00) CCOPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association 1.56 "Settlement Amount" means, with respect to a Transaction and the Non-Defaulting Party, the Losses or Gains, and Costs, expressed in U.S. Dollars, which such party incurs as a result of the liquidation of a Terminated Transaction pursuant to Section 5.2. 1.57 "Strike Price" means the price to be paid for the purchase of the Product pursuant to an Option. 1.58 "Terminated Transaction" has the meaning set forth in Section 5.2. 1.59 "Termination Payment" has the meaning set forth in Section 5.3. 1.60 "Transaction" means a particular transaction agreed to by the Parties relating to the sale and purchase of a Product pursuant to this Master Agreement. 1.61 "Transmission Provider" means any entity or entities transmitting or transporting the Product on behalf of Seller or Buyer to or from the Delivery Point in a particular Transaction. ARTICLE TWO: TRANSACTION TERMS AND CONDITIONS 2.1 Transactions. A Transaction shall be entered into upon agreement of the Parties orally or, if expressly required by either Party with respect to a particular Transaction, in writing, including an electronic means of communication. Each Party agrees not to contest, or assert any defense to, the validity or enforceability of the Transaction entered into in accordance with this Master Agreement (i) based on any law requiring agreements to be in writing or to be signed by the parties, or (ii) based on any lack of authority of the Party or any lack of authority of any employee of the Party to enter into a Transaction. 2.2 Governing Terms. Unless otherwise specifically agreed, each Transaction between the Parties shall be governed by this Master Agreement. This Master Agreement (including all exhibits, schedules and any written supplements hereto)„ the Party A Tariff, if any, and the Party B Tariff, if any, any designated collateral, credit support or margin agreement or similar arrangement between the Parties and all Transactions (including any Confirmations accepted in accordance with Section 2.3) shall form a single integrated agreement between the Parties. Any inconsistency between any terms of this Master Agreement and any terms of the Transaction shall be resolved in favor of the terms of such Transaction. 2.3 Confirmation. Seiler may confirm a Transaction by forwarding to Buyer by facsimile within three (3) Business Days after the Transaction is entered into a confirmation ("Confirmation") substantially in the form of Exhibit A. If Buyer objects to any term(s) of such Confirmation, Buyer shall notify Seller in writing of such objections within two (2) Business Days of Buyer's receipt thereof, failing which Buyer shall be deemed to have accepted the terms as sent. If Seller fails to send a Confirmation within three (3) Business Days after the Transaction is entered into, a Confirmation substantially in the form of Exhibit A, may be forwarded by Buyer to Seller. If Seller objects to any term(s) of such Confirmation, Seller shall notify Buyer of such objections within two (2) Business Days of Seller's receipt thereof, failing which Seller shall be deemed to have accepted the terms as sent. If Seller and Buyer each send a Confirmation and neither Party objects to the other Party's Confirmation within two (2) Business Days of receipt, Seller's 26 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric institute and National Energy Marketers Association Confirmation shall be deemed to be accepted and shall be the controlling Confirmation, unless (i) Seller's Confirmation was sent more than three (3) Business Days after the Transaction was entered into and (ii) Buyer's Confirmation was sent prior to Seller's Confirmation, in which case Buyer's Confirmation shall be deemed to be accepted and shall be the controlling Confirmation. Failure by either Party to send or either Party to return an executed Confirmation or any objection by either Party shall not invalidate the Transaction agreed to by the Parties. 2.4 Additional Confirmation Terms. If the Parties have elected on the Cover Sheet to make this Section 2.4 applicable to this Master Agreement, when a Confirmation contains provisions, other than those provisions relating to the commercial terms of the Transaction (e.g., price or special transmission conditions), which modify or supplement the general terms and conditions of this Master Agreement (e.g., arbitration provisions or additional representations and warranties), such provisions shall not be deemed to be accepted pursuant to Section 2.3 unless agreed to either orally or in writing by the Parties; provided that the foregoing shall not invalidate any Transaction agreed to by the Parties. 2.5 Recording. Unless a Party expressly objects to a Recording (defined below) at the beginning of a telephone conversation, each Party consents to the creation of a tape or electronic recording ("Recording") of all telephone conversations between the Parties to this Master Agreement, and that any such Recordings will be retained in confidence, secured from improper access, and may be submitted in evidence in any proceeding or action relating to this Agreement. Each Party waives any further notice of such monitoring or recording, and agrees to notify its officers and employees of such monitoring or recording and to obtain any necessary consent of such officers and employees. The Recording, and the terms and conditions described therein, if admissible, shall be the controlling evidence for the Parties' agreement with respect to a particular Transaction in the event a Confirmation is not fully executed (or deemed accepted) by both Parties. Upon full execution (or deemed acceptance) of a Confirmation, such Confirmation shall control in the event of any conflict with the terms of a Recording, or in the event of any conflict with the terms of this Master Agreement. ARTICLE THREE: OBLIGATIONS AND DELIVERIES 3.1 Seller's and Buyer's Obligations. With respect to each Transaction, Seller shall sell and deliver, or cause to be delivered, and Buyer shall purchase and receive, or cause to be received, the Quantity of the Product at the Delivery Point, and Buyer shall pay Seller the Contract Price; provided, however, with respect to Options, the obligations set forth in the preceding sentence shall only arise if the Option Buyer exercises its Option in accordance with its terms. Seller shall be responsible for any costs or charges imposed on or associated with the Product or its delivery of the Product up to the Delivery Point. Buyer shall be responsible for any costs or charges imposed on or associated with the Product or its receipt at and from the Delivery Point. 3.2 Transmission and Scheduling. Seller shall arrange and be responsible for transmission service to the Delivery Point and shall Schedule or arrange for Scheduling services with its Transmission Providers, as specified by the Parties in the Transaction, or in the absence thereof, in accordance with the practice of the Transmission Providers, to deliver the Product to the Delivery Point. Buyer shall arrange and be responsible for transmission service at and from the 27 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association Delivery Point and shall Schedule or arrange for Scheduling services with its Transmission Providers to receive the Product at the Delivery Point. 3.3 Force Majeure. To the extent either Party is prevented by Force Majeure from carrying out, in whole or part, its obligations under the Transaction and such Party (the "Claiming Party") gives notice and details of the Force Majeure to the other Party as soon as practicable, then, unless the terms of the Product specify otherwise, the Claiming Party shall be excused from the performance of its obligations with respect to such Transaction (other than the obligation to make payments then due or becoming due with respect to performance prior to the Force Majeure). The Claiming Party shall remedy the Force Majeure with all reasonable dispatch. The non-Claiming Party shall not be required to perform or resume performance of its obligations to the Claiming Party corresponding to the obligations of the Claiming Party excused by Force Majeure. ARTICLE FOUR: REMEDIES FOR FAILURE TO DELIVER/RECEIVE 4.1 Seller Failure. If Seller fails to schedule and/or deliver all or part of the Product pursuant to a Transaction, and such failure is not excused under the terms of the Product or by Buyer's failure to perform, then Seller shall pay Buyer, on the date payment would otherwise be due in respect of the month in which the failure occurred or, if "Accelerated Payment of Damages" is specified on the Cover Sheet, within five (5) Business Days of invoice receipt, an amount for such deficiency equal to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price. The invoice for such amount shall include a written statement explaining in reasonable detail the calculation of such amount. 4.2 Buyer Failure. If Buyer fails to schedule and/or receive all or part of the Product pursuant to a Transaction and such failure is not excused under the terms of the Product or by Seller's failure to perform, then Buyer shall pay Seller, on the date payment would otherwise be due in respect of the month in which the failure occurred or, if "Accelerated Payment of Damages" is specified on the Cover Sheet, within five (5) Business Days of invoice receipt, an amount for such deficiency equal to the positive difference, if any, obtained by subtracting the Sales Price from the Contract Price. The invoice for such amount shall include a written statement explaining in reasonable detail the calculation of such amount. ARTICLE FIVE: EVENTS OF DEFAULT; REMEDIES 5.1 Events of Default. An "Event of Default" shall mean, with respect to a Party (a "Defaulting Party"), the occurrence of any of the following: (a)the failure to make, when due, any payment required pursuant to this Agreement if such failure is not remedied within three (3) Business Days after written notice; (b)any representation or warranty made by such Party herein is false or misleading in any material respect when made or when deemed made or repeated; 28 Version 2.1 (modified 4125/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association (0) the failure to perform any material covenant or obligation set forth in this Agreement (except to the extent constituting a separate Event of Default, and except for such Party's obligations to deliver or receive the Product, the exclusive remedy for which is provided in Article Four) if such failure is not remedied within three (3) Business Days after written notice; (d)such Party becomes Bankrupt; (e)the failure of such Party to satisfy the creditworthiness/collateral requirements agreed to pursuant to Article Eight hereof; (f)such Party consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of such Party under this Agreement to which it or its predecessor was a party by operation of law or pursuant to an agreement reasonably satisfactory to the other Party; (g)if the applicable cross default section in the Cover Sheet is indicated for such Party, the occurrence and continuation of (i) a default, event of default or other similar condition or event in respect of such Party or any other party specified in the Cover Sheet for such Party under one or more agreements or instruments, individually or collectively, relating to indebtedness for borrowed money in an aggregate amount of not less than the applicable Cross Default Amount (as specified in the Cover Sheet), which results in such indebtedness becoming, or becoming capable at such time of being declared, immediately due and payable or (ii) a default by such Party or any other party specified in the Cover Sheet for such Party in making on the due date therefor one or more payments, individually or collectively, in an aggregate amount of not less than the applicable Cross Default Amount (as specified in the Cover Sheet); (h)with respect to such Party's Guarantor, if any: (i)if any representation or warranty made by a Guarantor in connection with this Agreement is false or misleading in any material respect when made or when deemed made or repeated; (ii)the failure of a Guarantor to make any payment required or to perform any other material covenant or obligation in any guaranty made in connection with this Agreement and such failure shall not be remedied within three (3) Business Days after written notice; (iii)a Guarantor becomes Bankrupt; 29 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association (iv)the failure of a Guarantor's guaranty to be in full force and effect for purposes of this Agreement (other than in accordance with its terms) prior to the satisfaction of all obligations of such Party under each Transaction to which such guaranty shall relate without the written consent of the other Party; or (v)a Guarantor shall repudiate, disaffirm, disclaim, or reject, in whole or in part, or challenge the validity of any guaranty. 5.2 Declaration of an Early Termination Date and Calculation of Settlement Amounts. If an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (the "Non-Defaulting Party") shall have the right (i) to designate a day, no earlier than the day such notice is effective and no later than 20 days after such notice is effective, as an early termination date ("Early Termination Date") to accelerate all amounts owing between the Parties and to liquidate and terminate all, but not less than all, Transactions (each referred to as a "Terminated Transaction") between the Parties, (ii) withhold any payments due to the Defaulting Party under this Agreement and (iii) suspend performance. The Non-Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for each such Terminated Transaction as of the Early Termination Date (or, to the extent that in the reasonable opinion of the Non-Defaulting Party certain of such Terminated Transactions are commercially impracticable to liquidate and terminate or may not be liquidated and terminated under applicable law on the Early Termination Date, as soon thereafter as is reasonably practicable). 5.3 Net Out of Settlement Amounts. The Non-Defaulting Party shall aggregate all Settlement Amounts into a single amount by: netting out (a) all Settlement Amounts that are due to the Defaulting Party, plus, at the option of the Non-Defaulting Party, any cash or other form of security then available to the Non-Defaulting Party pursuant to Article Eight, plus any or all other amounts due to the Defaulting Party under this Agreement against (b) all Settlement Amounts that are due to the Non-Defaulting Party, plus any or all other amounts due to the Non-Defaulting Party under this Agreement, so that all such amounts shall be netted out to a single liquidated amount (the "Termination Payment") payable by one Party to the other. The Termination Payment shall be due to or due from the Non-Defaulting Party as appropriate. 5.4 Notice of Payment of Termination Payment. As soon as practicable after a liquidation, notice shall be given by the Non-Defaulting Party to the Defaulting Party of the amount of the Termination Payment and whether the Termination Payment is due to or due from the Non- Defaulting Party. The notice shall include a written statement explaining in reasonable detail the calculation of such amount. The Termination Payment shall be made by the Party that owes it within two (2) Business Days after such notice is effective. 5.5 Disputes With Respect to Termination Payment. If the Defaulting Party disputes the Non-Defaulting Party's calculation of the Termination Payment, in whole or in part, the Defaulting Party shall, within two (2) Business Days of receipt of Non-Defaulting Party's calculation of the Termination Payment, provide to the Non-Defaulting Party a detailed written explanation of the basis for such dispute; provided, however, that if the Termination Payment is due from the Defaulting Party, the Defaulting Party shall first transfer Performance Assurance to the Non- Defaulting Party in an amount equal to the Termination Payment. 30 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association 5.6 Closeout Setoffs. Option A: After calculation of a Termination Payment in accordance with Section 5.3, if the Defaulting Party would be owed the Termination Payment, the Non-Defaulting Party shall be entitled, at its option arid in its discretion, to (i) set off against such Termination Payment any amounts due and owing by the Defaulting Party to the Non-Defaulting Party under any other agreements, instruments or undertakings between the Defaulting Party and the Non-Defaulting Party and/or (ii) to the extent the Transactions are not yet liquidated in accordance with Section 5.2, withhold payment of the Termination Payment to the Defaulting Party. The remedy provided for in this Section shall be without prejudice and in addition to any right of setoff, combination of accounts, lien or other right to which any Party is at any time otherwise entitled (whether by operation of law, contract or otherwise). Option B: After calculation of a Termination Payment in accordance with Section 5.3, if the Defaulting Party would be owed the Termination Payment, the Non-Defaulting Party shall be entitled, at its option and in its discretion, to (i) set off against such Termination Payment any amounts due and owing by the Defaulting Party or any of its Affiliates to the Non-Defaulting Party or any of its Affiliates under any other agreements, instruments or undertakings between the Defaulting Party or any of its Affiliates and the Non-Defaulting Party or any of its Affiliates and/or (ii) to the extent the Transactions are not yet liquidated in accordance with Section 5.2, withhold payment of the Termination Payment to the Defaulting Party. The remedy provided for in this Section shall be without prejudice and in addition to any right of setoff, combination of accounts, lien or other right to which any Party is at any time otherwise entitled (whether by operation of law, contract or otherwise). Option C: Neither Option A nor B shall apply. 5.7 Suspension of Performance. Notwithstanding any other provision of this Master Agreement, if (a) an Event of Default or (b) a Potential Event of Default shall have occurred and be continuing, the Non-Defaulting Party, upon written notice to the Defaulting Party, shall have the right (i) to suspend performance under any or all Transactions; provided, however, in no event shall any such suspension continue for longer than ten (10) NERC Business Days with respect to any single Transaction unless an early Termination Date shall have been declared and notice thereof pursuant to Section 5.2 given, and (ii) to the extent an Event of Default shall have occurred and be continuing to exercise any remedy available at law or in equity. ARTICLE SIX: PAYMENT AND NETTING 6.1 Billing Period. Unless otherwise specifically agreed upon by the Parties in a Transaction, the calendar month shall be the standard period for all payments under this Agreement (other than Termination Payments and, if "Accelerated Payment of Damages" is specified by the Parties in the Cover Sheet, payments pursuant to Section 4.1 or 4.2 and Option premium payments pursuant to Section 6.7). As soon as practicable after the end of each month, each Party will render to the other Party an invoice for the payment obligations, if any, incurred hereunder during the preceding month. 31 Version 2.1 (modified 4/25/00) ecopyRiGur 2000 by the Edison Electric Institute and National Energy Marketers Association 6.2 Timeliness of Payment. Unless otherwise agreed by the Parties in a Transaction, all invoices under this Master Agreement shall be due and payable in accordance with each Party's invoice instructions on or before the later of the twentieth (20th) day of each month, or tenth (10th) day after receipt of the invoice or, if such day is not a Business Day, then on the next Business Day. Each Party will make payments by electronic funds transfer, or by other mutually agreeable method(s), to the account designated by the other Party. Any amounts not paid by the due date will be deemed delinquent and will accrue interest at the Interest Rate, such interest to be calculated from and including the due date to but excluding the date the delinquent amount is paid in full. 6.3 Disputes and Adjustments of Invoices. A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice, rendered under this Agreement or adjust any invoice for any arithmetic or computational error within twelve (12) months of the date the invoice, or adjustment to an invoice, was rendered. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due, with notice of the objection given to the other Party. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved. Upon resolution of the dispute, any required payment shall be made within two (2) Business Days of such resolution along with interest accrued at the Interest Rate from and including the due date to but excluding the date paid. Inadvertent overpayments shall be returned upon request or deducted by the Party receiving such overpayment from subsequent payments, with interest accrued at the Interest Rate from and including the date of such overpayment to but excluding the date repaid or deducted by the Party receiving such overpayment. Any dispute with respect to an invoice is waived unless the other Party is notified in accordance with this Section 6.3 within twelve (12) months after the invoice is rendered or any specific adjustment to the invoice is made. If an invoice is not rendered within twelve (12) months after the close of the month during which performance of a Transaction occurred, the right to payment for such performance is waived. 6.4 Netting of Payments. The Parties hereby agree that they shall discharge mutual debts and payment obligations due and owing to each other on the same date pursuant to all Transactions through netting, in which case all amounts owed by each Party to the other Party for the purchase and sale of Products during the monthly billing period under this Master Agreement, including any related damages calculated pursuant to Article Four (unless one of the Parties elects to accelerate payment of such amounts as permitted by Article Four), interest, and payments or credits, shall be netted so that only the excess amount remaining due shall be paid by the Party who owes it. 6.5 Payment Obligation Absent Netting. If no mutual debts or payment obligations exist and only one Party owes a debt or obligation to the other during the monthly billing period, including, but not limited to, any related damage amounts calculated pursuant to Article Four, interest, and payments or credits, that Party shall pay such sum in full when due. 6.6 Security. Unless the Party benefiting from Performance Assurance or a guaranty notifies the other Party in writing, and except in connection with a liquidation and termination in accordance with Article Five, all amounts netted pursuant to this Article Six shall not take into account or include any Performance Assurance or guaranty which may be in effect to secure a Party's performance under this Agreement. 32 Version 2.1 (modified 4/25/00) COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association 6.7 Payment for Options. The premium amount for the purchase of an Option shall be paid within two (2) Business Days of receipt of an invoice from the Option Seller. Upon exercise of an Option, payment for the Product underlying such Option shall be due in accordance with Section 6.1. 6.8 Transaction Netting. If the Parties enter into one or more Transactions, which in conjunction with one or more other outstanding Transactions, constitute Offsetting Transactions, then all such Offsetting Transactions may by agreement of the Parties, be netted into a single Transaction under which: (a)the Party obligated to deliver the greater amount of Energy will deliver the difference between the total amount it is obligated to deliver and the total amount to be delivered to it under the Offsetting Transactions, and (b)the Party owing the greater aggregate payment will pay the net difference owed between the Parties. Each single Transaction resulting under this Section shall be deemed part of the single, indivisible contractual arrangement between the parties, and once such resulting Transaction occurs, outstanding obligations under the Offsetting Transactions which are satisfied by such offset shall terminate. ARTICLE SEVEN: LIMITATIONS 7.1 Limitation of Remedies. Liability and Damages. EXCEPT AS SET FORTH HEREIN, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR'S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN OR IN A TRANSACTION, THE OBLIGOR'S LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. UNLESS EXPRESSLY HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE 33 Version 2A (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS. ARTICLE EIGHT: CREDIT AND COLLATERAL REQUIREMENTS 8.1 Party A Credit Protection. The applicable credit and collateral requirements shall be as specified on the Cover Sheet. If no option in Section 8.1(a) is specified on the Cover Sheet, Section 8.1(a) Option C shall apply exclusively. If none of Sections 8.1(b), 8.1(c) or 8.1(d) are specified on the Cover Sheet, Section 8.1(b) shall apply exclusively. (a)Financial Information. Option A: If requested by Party A, Party B shall deliver (i) within 120 days following the end of each fiscal year, a copy of Party B's annual report containing audited consolidated financial statements for such fiscal year and (ii) within 60 days after the end of each of its first three fiscal quarters of each fiscal year, a copy of Party B's quarterly report containing unaudited consolidated financial statements for such fiscal quarter. In all cases the statements shall be for the most recent accounting period and prepared in accordance with generally accepted accounting principles; provided, however, that should any such statements not be available on a timely basis due to a delay in preparation or certification, such delay shall not be an Event of Default so long as Party B diligently pursues the preparation, certification and delivery of the statements. Option B: If requested by Party A, Party B shall deliver (i) within 120 days following the end of each fiscal year, a copy of the annual report containing audited consolidated financial statements for such fiscal year for the party(s) specified on the Cover Sheet and (ii) within 60 days after the end of each of its first three fiscal quarters of each fiscal year, a copy of quarterly report containing unaudited consolidated financial statements for such fiscal quarter for the party(s) specified on the Cover Sheet. In all cases the statements shall be for the most recent accounting period and shall be prepared in accordance with generally accepted accounting principles; provided, however, that should any such statements not be available on a timely basis due to a delay in preparation or certification, such delay shall not be an Event of Default so long as the relevant entity diligently pursues the preparation, certification and delivery of the statements. Option C: Party A may request from Party B the information specified in the Cover Sheet. (b)Credit Assurances. If Party A has reasonable grounds to believe that Party B's creditworthiness or performance under this Agreement has become unsatisfactory, Party A will provide Party B with written notice requesting Performance Assurance in an amount determined by Party A in a commercially reasonable manner. Upon receipt of such notice Party B shall have three (3) Business Days to remedy the situation by providing such Performance Assurance to Party A. In the event that Party B fails to provide such Performance Assurance, or a guaranty or other credit assurance acceptable to Party A within three (3) Business Days of receipt of notice, then an Event of Default under Article Five will be deemed to have occurred and Party A will be entitled to the remedies set forth in Article Five of this Master Agreement. 34 Version 2,1 (modified 4/25/00) COPYRIGHT 2000 by the Edison Electric Institute and National Energy Mark-etcrs Association (c)Collateral Threshold. If at any time and from time to time during the term of this Agreement (and notwithstanding whether an Event of Default has occurred), the Termination Payment that would be owed to Party A plus Party B's Independent Amount, if any, exceeds the Party B Collateral Threshold, then Party A, on any Business Day, may request that Party B provide Performance Assurance in an amount equal to the amount by which the Termination Payment plus Party B's Independent Amount, if any, exceeds the Party B Collateral Threshold (rounding upwards for any fractional amount to the next Party B Rounding Amount) ("Party B Performance Assurance"), less any Party B Performance Assurance already posted with Party A. Such Party B Performance Assurance shall be delivered to Party A within three (3) Business Days of the date of such request. On any Business Day (but no more frequently than weekly with respect to Letters of Credit and daily with respect to cash), Party B, at its sole cost, may request that such Party B Performance Assurance be reduced correspondingly to the amount of such excess Termination Payment plus Party B's Independent Amount, if any, (rounding upwards for any fractional amount to the next Party B Rounding Amount). In the event that Party B fails to provide Party B Performance Assurance pursuant to the terms of this Article Eight within three (3) Business Days, then an Event of Default under Article Five shall be deemed to have occurred and Party A will be entitled to the remedies set forth in Article Five of this Master Agreem ent. For purposes of this Section 8.1(c), the calculation of the Termination Payment shall be calculated pursuant to Section 5.3 by Party A as if all outstanding Transactions had been liquidated, and in addition thereto, shall include all amounts owed but not yet paid by Party B to Party A, whether or not such amounts are due, for performance already provided pursuant to any and all Transactions. (d)Downgrade Event. If at any time there shall occur a Downgrade Event in respect of Party B, then Party A may require Party B to provide Performance Assurance in an amount determined by Party A in a commercially reasonable manner. In the event Party B shall fail to provide such Performance Assurance or a guaranty or other credit assurance acceptable to Party A within three (3) Business Days of receipt of notice, then an Event of Default shall be deemed to have occurred and Party A will be entitled to the remedies set forth in Article Five of this Master Agreement. (e)If specified on the Cover Sheet, Party B shall deliver to Party A, prior to or concurrently with the execution and delivery of this Master Agreement a guarantee in an amount not less than the Guarantee Amount specified on the Cover Sheet and in a form reasonably acceptable to Party A. 8.2 Party B Credit Protection. The applicable credit and collateral requirements shall be as specified on the Cover Sheet. If no option in Section 8.2(a) is specified on the Cover Sheet, Section 8.2(a) Option C shall apply exclusively. If none of Sections 8.2(b), 8.2(c) or 8.2(d) are specified on the Cover Sheet, Section 8.2(b) shall apply exclusively. (a) Financial Information. Option A: If requested by Party B, Party A shall deliver (i) within 120 days following the end of each fiscal year, a copy of Party A's annual report containing audited consolidated financial statements for such fiscal year and (ii) within 60 days after the end of each of its first three fiscal quarters of each fiscal year, a copy of such Party's 35 Version 2.1 (modified 4/25/00) CCOPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association quarterly report containing unaudited consolidated financial statements for such fiscal quarter. In all cases the statements shall be for the most recent accounting period and prepared in accordance with generally accepted accounting principles; provided, however, that should any such statements not be available on a timely basis due to a delay in preparation or certification, such delay shall not be an Event of Default so long as such Party diligently pursues the preparation, certification and delivery of the statements. Option B: If requested by Party B, Party A shall deliver (i) within 120 days following the end of each fiscal year, a copy of the annual report containing audited consolidated financial statements for such fiscal year for the party(s) specified on the Cover Sheet and (ii) within 60 days after the end of each of its first three fiscal quarters of each fiscal year, a copy of quarterly report containing unaudited consolidated financial statements for such fiscal quarter for the party(s) specified on the Cover Sheet. In all cases the statements shall be for the most recent accounting period and shall be prepared in accordance with generally accepted accounting principles; provided, however, that should any such statements not be available on a timely basis due to a delay in preparation or certification, such delay shall not be an Event of Default so long as the relevant entity diligently pursues the preparation, certification and delivery of the statements. Option C: Party B may request from Party A the information specified in the Cover Sheet. (b) Credit Assurances. If Party B has reasonable grounds to believe that Party A's creditworthiness or performance under this Agreement has become unsatisfactory, Party B will provide Party A with written notice requesting Performance Assurance in an amount determined by Party B in a commercially reasonable manner. Upon receipt of such notice Party A shall have three (3) Business Days to remedy the situation by providing such Performance Assurance to Party B. In the event that Party A fails to provide such Performance Assurance, or a guaranty or other credit assurance acceptable to Party B within three (3) Business Days of receipt of notice, then an Event of Default under Article Five will be deemed to have occurred and Party B will be entitled to the remedies set forth in Article Five of this Master Agreement. (c) Collateral Threshold. If at any time and from time to time during the term of this Agreement (and notwithstanding whether an Event of Default has occurred), the Termination Payment that would be owed to Party B plus Party A's Independent Amount, if any, exceeds the Party A Collateral Threshold, then Party B, on any Business Day, may request that Party A provide Performance Assurance in an amount equal to the amount by which the Termination Payment plus Party A's Independent Amount, if any, exceeds the Party A Collateral Threshold (rounding upwards for any fractional amount to the next Party A Rounding Amount) ("Party A Performance Assurance"), less any Party A Performance Assurance already posted with Party B. Such Party A Performance Assurance shall be delivered to Party B within three (3) Business Days of the date of such request. On any Business Day (but no more frequently than weekly with respect to Letters of Credit and daily with respect to cash), Party A, at its sole cost, may request that such Party A Performance Assurance be reduced correspondingly to the amount of such excess Termination Payment plus Party A's Independent Amount, if any, (rounding upwards for any fractional amount to the next Party A Rounding Amount). In the event that Party A fails to provide Party A Performance Assurance pursuant to the terms of this Article Eight within three (3) Business Days, then an Event of Default under Article Five shall be deemed to have 36 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association occurred and Party B will be entitled to the remedies set forth in Article Five of this Master Agreement. For purposes of this Section 8.2(c), the calculation of the Termination Payment shall be calculated pursuant to Section 5.3 by Party B as if all outstanding Transactions had been liquidated, and in addition thereto, shall include all amounts owed but not yet paid by Party A to Party B, whether or not such amounts are due, for performance already provided pursuant to any and all Transactions. (d)Downgrade Event. If at any time there shall occur a Downgrade Event in respect of Party A, then Party B may require Party A to provide Performance Assurance in an amount determined by Party B in a commercially reasonable manner. In the event Party A shall fail to provide such Performance Assurance or a guaranty or other credit assurance acceptable to Party B within three (3) Business Days of receipt of notice, then an Event of Default shall be deemed to have occurred and Party B will be entitled to the remedies set forth in Article Five of this Master Agreement. (e)If specified on the Cover Sheet, Party A shall deliver to Party B, prior to or concurrently with the execution and delivery of this Master Agreement a guarantee in an amount not less than the Guarantee Amount specified on the Cover Sheet and in a form reasonably acceptable to Party B. 8.3 Grant of Security Interest/Remedies. To secure its obligations under this Agreement and to the extent either or both Parties deliver Performance Assurance hereunder, each Party (a "Pledgor") hereby grants to the other Party (the "Secured Party") a present and continuing security interest in, and lien on (and right of setoff against), and assignment of, all cash collateral and cash equivalent collateral and any and all proceeds resulting therefrom or the liquidation thereof, whether now or hereafter held by, on behalf of, or for the benefit of, such Secured Party, and each Party agrees to take such action as the other Party reasonably requires in order to perfect the Secured Party's first-priority security interest in, and lien on (and right of setoff against), such collateral and any and all proceeds resulting therefrom or from the liquidation thereof. Upon or any time after the occurrence or deemed occurrence and during the continuation of an Event of Default or an Early Termination Date, the Non-Defaulting Party may do any one or more of the following: (i) exercise any of the rights and remedies of a Secured Party with respect to all Performance Assurance, including any such rights and remedies under law then in effect; (ii) exercise its rights of setoff against any and all property of the Defaulting Party in the possession of the Non-Defaulting Party or its agent; (iii) draw on any outstanding Letter of Credit issued for its benefit; and (iv) liquidate all Performance Assurance then held by or for the benefit of the Secured Party free from any claim or right of any nature whatsoever of the Defaulting Party, including any equity or right of purchase or redemption by the Defaulting Party. The Secured Party shall apply the proceeds of the collateral realized upon the exercise of any such rights or remedies to reduce the Pledgor's obligations under the Agreement (the Pledgor remaining liable for any amounts owing to the Secured Party after such application), subject to the Secured Party's obligation to return any surplus proceeds remaining after such obligations are satisfied in full. 37 Version 2.1 (modified 4/25/00) CCOPYR1G1rr 2000 by the Edison Electric Institute and National Energy Marketers Association ARTICLE NINE: GOVERNMENTAL CHARGES 9.1 Cooperation. Each Party shall use reasonable efforts to implement the provisions of and to administer this Master Agreement in accordance with the intent of the parties to minimize all taxes, so long as neither Party is materially adversely affected by such efforts. 9.2 Governmental Charges. Seller shall pay or cause to be paid all taxes imposed by any government authority("Governmental Charges") on or with respect to the Product or a Transaction arising prior to the Delivery Point. Buyer shall pay or cause to be paid all Governmental Charges on or with respect to the Product or a Transaction at and from the Delivery Point (other than ad valorem, franchise or income taxes which are related to the sale of the Product and are, therefore, the responsibility of the Seller). In the event Seller is required by law or regulation to remit or pay Governmental Charges which are Buyer's responsibility hereunder, Buyer shall promptly reimburse Seller for such Governmental Charges. If Buyer is required by law or regulation to remit or pay Governmental Charges which are Seller's responsibility hereunder, Buyer may deduct the amount of any such Governmental Charges from the sums due to Seller under Article 6 of this Agreement. Nothing shall obligate or cause a Party to pay or be liable to pay any Governmental Charges for which it is exempt under the law. ARTICLE TEN: MISCELLANEOUS 10.1 Term of Master Agreement. The term of this Master Agreement shall commence on the Effective Date and shall remain in effect until terminated by either Party upon (thirty) 30 days' prior written notice; provided, however, that such termination shall not affect or excuse the performance of either Party under any provision of this Master Agreement that by its terms survives any such termination and, provided further, that this Master Agreement and any other documents executed and delivered hereunder shall remain in effect with respect to the Transaction(s) entered into prior to the effective date of such termination until both Parties have fulfilled all of their obligations with respect to such Transaction(s), or such Transaction(s) that have been terminated under Section 5.2 of this Agreement. 10.2 Representations and Warranties. On the Effective Date and the date of entering into each Transaction, each Party represents and warrants to the other Party that: (i)it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; (ii)it has all regulatory authorizations necessary for it to legally perform its obligations under this Master Agreement and each Transaction (including any Confirmation accepted in accordance with Section 2.3); (iii)the execution, delivery and performance of this Master Agreement and each Transaction (including any Confirmation accepted in accordance with Section 2.3) are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it; 38 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association (iv)this Master Agreement, each Transaction (including any Confirmation accepted in accordance with • Section 2.3), and each other document executed and delivered in accordance with this Master Agreement constitutes its legally valid and binding obligation enforceable against it in accordance with its terms; subject to any Equitable Defenses; (v)it is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or becoming Bankrupt; (vi)there is not pending or, to its knowledge, threatened against it or any of its Affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under this Master Agreement and each Transaction (including any Confirmation accepted in accordance with Section 2.3); (vii)no Event of Default or Potential Event of Default with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Master Agreement and each Transaction (including any Confirmation accepted in accordance with Section 2.3); (viii)it is acting for its own account, has made its own independent decision to enter into this Master Agreement and each Transaction (including any Confirmation accepted in accordance with Section 2.3) and as to whether this Master Agreement and each such Transaction (including any Confirmation accepted in accordance with Section 2.3) is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Master Agreement and each Transaction (including any Confirmation accepted in accordance with Section 2.3); (ix)it is a "forward contract merchant" within the meaning of the United States Bankruptcy Code; (x)it has entered into this Master Agreement and each Transaction (including any Confirmation accepted in accordance with Section 2.3) in connection with the conduct of its business and it has the capacity or ability to make or take delivery of all Products referred to in the Transaction to which it is a Party; (xi)with respect to each Transaction (including any Confirmation accepted in accordance with Section 2.3) involving the purchase or sale of a Product or an Option, it is a producer, processor, commercial user or merchant handling the Product, and it is entering into such Transaction for purposes related to its business as such; and 39 Version 2.1 (modified 4/25/00) ()COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association (xii) the material economic terms of each Transaction are subject to individual negotiation by the Parties. 10.3 Title and Risk of Loss. Title to and risk of loss related to the Product shall transfer from Seller to Buyer at the Delivery Point. Seller warrants that it will deliver to Buyer the Quantity of the Product free and clear of all liens, security interests, claims and encumbrances or any interest therein or thereto by any person arising prior to the Delivery Point. 10.4 Indemnity. Each Party shall indemnify, defend and hold harmless the other Party from and against any Claims arising from or out of any event, circumstance, act or incident first occurring or existing during the period when control and title to Product is vested in such Party as •provided in Section 10.3. Each Party shall indemnify, defend and hold harmless the other Party against any Governmental Charges for which such Party is responsible under Article Nine. 10.5 Assignment. Neither Party shall assign this Agreement or its rights hereunder without the prior written consent of the other Party, which consent may be withheld in the exercise of its sole discretion; provided, however, either Party may, without the consent of the other Party (and without relieving itself from liability hereunder), (i) transfer, sell, pledge, encumber or assign this Agreement or the accounts, revenues or proceeds hereof in connection with any financing or other financial arrangements, (ii) transfer or assign this Agreement to an affiliate of such Party which affiliate's creditworthiness is equal to or higher than that of such Party, or (iii) transfer or assign this Agreement to any person or entity succeeding to all or substantially all of the assets whose creditworthiness is equal to or higher than that of such Party; provided, however, that in each such case, any such assignee shall agree in writing to be bound by the terms and conditions hereof and so long as the transferring Party delivers such tax and enforceability assurance as the non-transferring Party may reasonably request. 10.6 Governing Law. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH PARTY WAIVES ITS RESPECTIVE RIGHT TO ANY JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT. 10.7 Notices. All notices, requests, statements or payments shall be made as specified in the Cover Sheet. Notices (other than scheduling requests) shall, unless otherwise specified herein, be in writing and may be delivered by hand delivery, United States mail, overnight courier service or facsimile. Notice by facsimile or hand delivery shall be effective at the close of business on the day actually received, if received during business hours on a Business Day, and otherwise shall be effective at the close of business on the next Business Day. Notice by overnight United States mail or courier shall be effective on the next Business Day after it was sent. A Party may change its addresses by providing notice of same in accordance herewith. 10.8 General. This Master Agreement (including the exhibits, schedules and any written supplements hereto), the Party A Tariff, if any, the Party B Tariff, if any, any designated collateral, credit support or margin agreement or similar arrangement between the Parties and all Transactions (including any Confirmation accepted in accordance with Section 2.3) constitute the entire 40 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association agreement between the Parties relating to the subject matter. Notwithstanding the foregoing, any collateral, credit support or margin agreement or similar arrangement between the Parties shall, upon designation by the Parties, be deemed part of this Agreement and shall be incorporated herein by reference. This Agreement shall be considered for all purposes as prepared through the joint efforts of the parties and shall not be construed against one party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution hereof. Except to the extent herein provided for, no amendment or modification to this Master Agreement shall be enforceable unless reduced to writing and executed by both Parties. Each Party agrees if it seeks to amend any applicable wholesale power sales tariff during the term of this Agreement, such amendment will not in any way affect outstanding Transactions under this Agreement without the prior written consent of the other Party. Each Party further agrees that it will not assert, or defend itself, on the basis that any applicable tariff is inconsistent with this Agreement. This Agreement shall not impart any rights enforceable by any third party (other than a permitted successor or assignee bound to this Agreement). Waiver by a Party of any default by the other Party shall not be construed as a waiver of any other default. Any provision declared or rendered unlawful by any applicable court of law or regulatory agency or deemed unlawful because of a statutory change (individually or collectively, such events referred to as "Regulatory Event") will not otherwise affect the remaining lawful obligations that arise under this Agreement; and provided, further, that if a Regulatory Event occurs, the Parties shall use their best efforts to reform this Agreement in order to give effect to the original intention of the Parties. The term "including" when used in this Agreement shall be by way of example only and shall not be considered in any way to be in limitation. The headings used herein are for convenience and reference purposes only. All indemnity and audit rights shall survive the termination of this Agreement for twelve (12) months. This Agreement shall be binding on each Party's successors and permitted assigns. 10.9 Audit. Each Party has the right, at its sole expense and during normal working hours, to examine the records of the other Party to the extent reasonably necessary to verify the accuracy of any statement, charge or computation made pursuant to this Master Agreement. If requested, a Party shall provide to the other Party statements evidencing the Quantity delivered at the Delivery Point. If any such examination reveals any inaccuracy in any statement, the necessary adjustments in such statement and the payments thereof will be made promptly and shall bear interest calculated at the Interest Rate from the date the overpayment or underpayment was made until paid; provided, however, that no adjustment for any statement or payment will be made unless objection to the accuracy thereof was made prior to the lapse of twelve (12) months from the rendition thereof, and thereafter any objection shall be deemed waived. 10.10 Forward Contract. The Parties acknowledge and agree that all Transactions constitute "forward contracts" within the meaning of the United States Bankruptcy Code. 10.11 Confidentiality. If the Parties have elected on the Cover Sheet to make this Section 10.11 applicable to this Master Agreement, neither Party shall disclose the terms or conditions of a Transaction under this Master Agreement to a third party (other than the Party's employees, lenders, counsel, accountants or advisors who have a need to know such information and have agreed to keep such terms confidential) except in order to comply with any applicable law, regulation, or any exchange, control area or independent system operator rule or in connection with any court or regulatory proceeding; provided, however, each Party shall, to the extent practicable, use reasonable efforts to prevent or limit the disclosure. The Parties shall be entitled 41 Version 2.1 (modified 4/25/00) OCOPVRIGFIT 2000 by the Edison Electric Institute and National Energy Marketers Association to all remedies available at law or in equity to enforce, or seek relief in connection with, this confidentiality obligation. 42 Version 23 (modified 4/25/00) °COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association SCHEDULE M: GOVERNMENTAL ENTITY OR PUBLIC POWER SYSTEMS (THIS SCHEDULE IS INCLUDED IF THE APPROPRIATE BOX ON THE COVER SHEET IS MARKED INDICATING A PARTY IS A GOVERNMENTAL ENTITY OR PUBLIC POWER SYSTEM) A. The Parties agree to add the following definitions in Article One. "Act" means "Governmental Entity or Public Power System" means a municipality, county, governmental board, public power authority, public utility district, joint action agency, or other similar political subdivision or public entity of the United States, one or more States or territories or any combination thereof. "Special Fund" means a fund or account of the Governmental Entity or Public Power System set aside and or pledged to satisfy the Public Power System's obligations hereunder out of which amounts shall be paid to satisfy all of the Public Power System's obligations under this Master Agreement for the entire Delivery Period. B.The following sentence shall be added to the end of the definition of "Force Majeure" in Article One. If the Claiming Party is a Governmental Entity or Public Power System, Force Majeure does not include any action taken by the Governmental - Entity or Public Power System in its governmental capacity. C.The Parties agree to add the following representations and warranties to Section 10.2: Further and with respect to a Party that is a Governmental Entity or Public Power System, such Governmental Entity or Public Power System represents and warrants to the other Party continuing throughout the term of this Master Agreement, with respect to this Master Agreement and each Transaction, as follows: (i) all acts necessary to the valid execution, delivery and performance of this Master Agreement, including without limitation, competitive bidding, public notice, election, referendum, prior appropriation or other required procedures has or will be taken and performed as required under the Act and the Public Power System's ordinances, bylaws or other regulations, (ii) all persons making up the governing body of Governmental Entity or Public Power System are the duly elected or appointed incumbents in their positions and hold such I Cite the state enabling and other relevant statutes applicable to Governmental Entity or Public Power System. 43 Version 2.1 (modified 4125/00) OCOPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association positions in good standing in accordance with the Act and other applicable law, (iii) entry into and performance of this Master Agreement by Governmental Entity or Public Power System are for a proper public purpose within the meaning of the Act and all other relevant constitutional, organic or other governing documents and applicable law, (iv) the term of this Master Agreement does not extend beyond any applicable limitation imposed by the Act or other relevant constitutional, organic or other governing documents and applicable law, (v) the Public Power System's obligations to make payments hereunder are unsubordinated obligations and such payments are (a) operating and maintenance costs (or similar designation) which enjoy first priority of payment at all times under any and all bond ordinances or indentures to which it is a party, the Act and all other relevant constitutional, organic or other governing documents and applicable law or (b) otherwise not subject to any prior claim under any and all bond ordinances or indentures to which it is a party, the Act and all other relevant constitutional, organic or other governing documents and applicable law and are available without limitation or deduction to satisfy all Governmental Entity or Public Power System' obligations hereunder and under each Transaction or (c) are to be made solely from a Special Fund, (vi) entry into and performance of this Master Agreement and each Transaction by the Governmental Entity or Public Power System will not adversely affect the exclusion from gross income for federal income tax purposes of interest on any obligation of Governmental Entity or Public Power System otherwise entitled to such exclusion, and (vii) obligations to make payments hereunder do not constitute any kind of indebtedness of Governmental Entity or Public Power System or create any kind of lien on, or security interest in, any property or revenues of Governmental Entity or Public Power System which, in either case, is proscribed by any provision of the Act or any other relevant constitutional, organic or other governing documents and applicable law, any order or judgment of any court or other agency of government applicable to it or its assets, or any contractual restriction binding on or affecting it or any of its assets. D. The Parties agree to add the following sections to Article Three: Section 3.4 Public Power System's Deliveries. On the Effective Date and as a condition to the obligations of the other Party under this Agreement, Governmental Entity or Public Power System shall provide the other Party hereto (i) certified copies of all ordinances, resolutions, public notices and other documents evidencing the necessary authorizations with respect to the execution, delivery and performance by Governmental Entity or Public Power System of this Master Agreement and (ii) an opinion of counsel for Governmental Entity or Public Power System, in form and substance reasonably satisfactory to the Other Party, regarding the validity, binding effect and enforceability of this Master Agreement against Governmental Entity or Public Power System in respect of the Act and all 44 Version 2.1 (modified 4/25/00) OCOPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association other relevant constitutional organic or other governing documents and applicable law. Section 3.5 No Immunity Claim. Governmental Entity or Public Power System warrants and covenants that with respect to its contractual obligations hereunder and performance thereof, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (a) suit, (b) jurisdiction of court (including a court located outside the jurisdiction of its organization), (c) relief by way of injunction, order for specific performance or recovery of property, (d) attachment of assets, or (e) execution or enforcement of any judgment. E.If the appropriate box is checked on the Cover Sheet, as an alternative to selecting one of the options under Section 8.3, the Parties agree to add the following section to Article Three: Section 3.6 Governmental Entity or Public Power System Security. With respect to each Transaction, Governmental Entity or Public Power System shall either (i) have created and set aside a Special Fund or (ii) upon execution of this Master Agreement and prior to the commencement of each subsequent fiscal year of Governmental Entity or Public Power System during any Delivery Period, have obtained all necessary budgetary approvals and certifications for payment of all of its obligations under this Master Agreement for such fiscal year; any breach of this provision shall be deemed to have arisen during a fiscal period of Governmental Entity or Public Power System for which budgetary approval or certification of its obligations under this Master Agreement is in effect and, notwithstanding anything to the contrary in Article Four, an Early Termination Date shall automatically and without further notice occur hereunder as of such date wherein Governmental Entity or Public Power System shall be treated as the Defaulting Party. Governmental Entity or Public Power System shall have allocated to the Special Fund or its general funds a revenue base that is adequate to cover Public Power System's payment obligations hereunder throughout the entire Delivery Period. F.If the appropriate box is checked on the Cover Sheet, the Parties agree to add the following section to Article Eight: Section 8.4 Governmental Security. As security for payment and performance of Public Power System's obligations hereunder, Public Power System hereby pledges, sets over, assigns and grants to the other Party a security interest in all of Public Power System's right, title and interest in and to [specify collateral]. 45 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association G. The Parties agree to add the following sentence at the end of Section 10.6 - Governing Law: NOTWITHSTANDING THE FOREGOING, IN RESPECT OF THE APPLICABILITY OF THE ACT AS HEREIN PROVIDED, THE LAWS OF THE STATE OF 2 SHALL APPLY. 2 Insert relevant state for Governmental Entity or Public Power System. 46 Version 2.1 (modified 4/25/00) ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association SCHEDULE P: PRODUCTS AND RELATED DEFINITIONS "Ancillary Services" means any of the services identified by a Transmission Provider in its transmission tariff as "ancillary services" including, but not limited to, regulation and frequency response, energy imbalance, operating reserve-spinning and operating reserve-supplemental, as may be specified in the Transaction. "Capacity" has the meaning specified in the Transaction. "Energy" means three-phase, 60-cycle alternating current electric energy, expressed in megawatt hours. "Firm (LD)" means, with respect to a Transaction, that either Party shall be relieved of its obligations to sell and deliver or purchase and receive without liability only to the extent that, and for the period during which, such performance is prevented by Force Majeure. In the absence of Force Majeure, the Party to which performance is owed shall be entitled to receive from the Party which failed to deliver/receive an amount determined pursuant to Article Four. "Firm Transmission Contingent - Contract Path" means, with respect to a Transaction, that the performance of either Seller or Buyer (as specified in the Transaction) shall be excused, and no damages shall be payable including any amounts determined pursuant to Article Four, if the transmission for such Transaction is interrupted or curtailed and (i) such Party has provided for firm transmission with the transmission provider(s) for the Product in the case of the Seller from the generation source to the Delivery Point or in the case of the Buyer from the Delivery Point to the ultimate sink, and (ii) such interruption or curtailment is due to "force majeure" or "uncontrollable force" or a similar term as defined under the applicable transmission provider's tariff. This contingency shall excuse performance for the duration of the interruption or curtailment notwithstanding the provisions of the definition of "Force Majeure" in Section 1.23 to the contrary. "Firm Transmission Contingent - Delivery Point" means, with respect to a Transaction, that the performance of either Seller or Buyer (as specified in the Transaction) shall be excused, and no damages shall be payable including any amounts determined pursuant to Article Four, if the transmission to the Delivery Point (in the case of Seller) or from the Delivery Point (in the case of Buyer) for such Transaction is interrupted or curtailed and (i) such Party has provided for firm transmission with the transmission provider(s) for the Product, in the case of the Seller, to be delivered to the Delivery Point or, in the case of Buyer, to be received at the Delivery Point and (ii) such interruption or curtailment is due to "force majeure" or "uncontrollable force" or a similar term as defined under the applicable transmission provider's tariff. This transmission contingency excuses performance for the duration of the interruption or curtailment, notwithstanding the provisions of the definition of "Force Majeure" in Section 1.23 to the contrary. Interruptions or curtailments of transmission other than the transmission either immediately to or from the Delivery Point shall not excuse performance. "Firm (No Force Majeure)" means, with respect to a Transaction, that if either Party fails to perform its obligation to sell and deliver or purchase and receive the Product, the Party to which performance is owed shall be entitled to receive from the Party which failed to perform an amount 47 Version 2.1 (modified 4/25/00) °COPYRIGHT 2000 by the Edison Electric Institute and National Encru Marketers Association determined pursuant to Article Four. Force Majeure shall not excuse performance of a Firm (No Force Majeure) Transaction. "Into (the "Receiving Transmission Provider"), Seller's Daily Choice" means that, in accordance with the provisions set forth below, (1) the Product shall be scheduled and delivered to an interconnection or interface ("Interface") either (a) on the Receiving Transmission Provider's transmission system border or (b) within the control area of the Receiving Transmission Provider if the Product is from a source of generation in that control area, which Interface, in either case, the Receiving Transmission Provider identifies as available for delivery of the Product in or into its control area; and (2) Seller has the right on a daily prescheduled basis to designate the interface where the Product shall be delivered. An "Into" Product shall be subject to the following provisions: I. Prescheduling and Notification. Subject to the provisions of Section 6, not later than the prescheduling deadline of 11:00 a.m. CPT on the Business Day before the next delivery day or as otherwise agreed to by Buyer and Seller, Seller shall notify Buyer ("Seller's Notification") of Seller's immediate upstream counterparty and the Interface (the "Designated Interface") where Seller shall deliver the Product for the next delivery day, and Buyer shall notify Seller of Buyer's immediate downstream counterparty. 2.Availability of "Firm Transmission" to Buyer at Designated Interface; "Timely Request for Transmission," "ADI" and "Available Transmission." In determining availability to Buyer of next-day firm transmission ("Firm Transmission") from the Designated Interface, a "Timely Request for Transmission" shall mean a properly completed request for Firm Transmission made by Buyer in accordance with the controlling tariff procedures, which request shall be submitted to the Receiving Transmission Provider no later than 30 minutes after delivery of Seller's Notification, provided, however, if the Receiving Transmission Provider is not accepting requests for Firm Transmission at the time of Seller's Notification, then such request by Buyer shall be made within 30 minutes of the time when the Receiving Transmission Provider first opens thereafter for purposes of accepting requests for Firm Transmission. Pursuant to the terms hereof, delivery of the Product may under certain circumstances be redesignated to occur at an Interface other than the Designated Interface (any such alternate designated interface, an "ADI") either (a) on the Receiving Transmission Provider's transmission system border or (b) within the control area of the Receiving Transmission Provider if the Product is from a source of generation in that control area, which AD!, in either case, the Receiving Transmission Provider identifies as available for delivery of the Product in or into its control area using either firm or non-firm transmission, as available on a day-ahead or hourly basis (individually or collectively referred to as "Available Transmission") within the Receiving Transmission Provider's transm ission system. 3.Rights of Buyer and Seller Depending Upon Availability of/Timely Request for Firm Transmission. A. Timely Request for Firm Transmission made by Buyer. Accepted by the Receiving Transmission Provider and Purchased by Buyer. If a Timely Request for Firm Transmission is made by Buyer and is accepted by the Receiving Transmission Provider 48 Version 2.1 (modified 4/25/00) OCOPYRIGI IT 2000 by the Edison Electric Institute and National Energy Marketers Association and Buyer purchases such Firm Transmission, then Seller shall deliver and Buyer shall receive the Product at the Designated Interface. i. If the Firm Transmission purchased by Buyer within the Receiving Transmission Provider's transmission system from the Designated Interface ceases to be available to Buyer for any reason, or if Seller is unable to deliver the Product at the Designated Interface for any reason except Buyer's non-performance, then at Seller's choice from among the following, Seller shall: (a) to the extent Firm Transmission is available to Buyer from an ADI on a day-ahead basis, require Buyer to purchase such Firm Transmission from such ADI, and schedule and deliver the affected portion of the Product to such ADI on the basis of Buyer's purchase of Firm Transmission, or (b) require Buyer to purchase non-firm transmission, and schedule and deliver the affected portion of the Product on the basis of Buyer's purchase of non-firm transmission from the Designated Interface or an ADI designated by Seller, or (c) to the extent firm transmission is available on an hourly basis, require Buyer to purchase firm transmission, and schedule and deliver the affected portion of the Product on the basis of Buyer's purchase of such hourly firm transmission from the Designated Interface or an ADI designated by Seller. If the Available Transmission utilized by Buyer as required by Seller pursuant to Section 3A(i) ceases to be available to Buyer for any reason, then Seller shall again have those alternatives stated in Section 3A(i) in order to satisfy its obligations. iii.Seller's obligation to schedule and deliver the Product at an ADI is subject to Buyer's obligation referenced in Section 4B to cooperate reasonably therewith. If Buyer and Seller cannot complete the scheduling and/or delivery at an ADI, then Buyer shall be deemed to have satisfied its receipt obligations to Seller and Seller shall be deemed to have failed its delivery obligations to Buyer, and Seller shall be liable to Buyer for amounts determined pursuant to Article Four. iv.In each instance in which Buyer and Seller must make alternative scheduling arrangements for delivery at the Designated Interface or an ADI pursuant to Sections 3A(i) or (ii), and Firm Transmission had been purchased by both Seller and Buyer into and within the Receiving Transmission Provider's transmission system as to the scheduled delivery which could not be completed as a result of the interruption or curtailment of such Firm Transmission, Buyer and Seller shall bear their respective transmission expenses and/or associated congestion charges incurred in connection with efforts to complete delivery by such alternative scheduling and delivery arrangements. In any instance except as set forth in the immediately preceding sentence, Buyer and Seller must make alternative scheduling arrangements for delivery at the Designated Interface or an ADI under Sections 3A(i) or (ii), Seller shall be responsible for any additional transmission purchases and/or associated congestion charges incurred by Buyer in connection with such alternative scheduling arrangements. 49 Version 2.1 (modified 4/25/00) CCOPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association B.Timely Request for Firm Transmission Made by Buyer but Rejected by the Receiving Transmission Provider. If Buyer's Timely Request for Firm Transmission is rejected by the Receiving Transmission Provider because of unavailability of Firm Transmission from the Designated Interface, then Buyer shall notify Seller within 15 minutes after receipt of the Receiving Transmission Provider's notice of rejection ("Buyer's Rejection Notice"). If Buyer timely notifies Seller of such unavailability of Firm Transmission from the Designated Interface, then Seller shall be obligated either (1) to the extent Firm Transmission is available to Buyer from an ADI on a day-ahead basis, to require Buyer to purchase (at Buyer's own expense) such Firm Transmission from such ADI and schedule and deliver the Product to such ADI on the basis of Buyer's purchase of Firm Transmission, and thereafter the provisions in Section 3A shall apply, or (2) to require Buyer to purchase (at Buyer's own expense) non-firm transmission, and schedule and deliver the Product on the basis of Buyer's purchase of non-firm transmission from the Designated Interface or an ADI designated by the Seller, in which case Seller shall bear the risk of interruption or curtailment of the non-firm transmission; provided, however, that if the non-firm transmission is interrupted or curtailed or if Seller is unable to deliver the Product for any reason, Seller shall have the right to schedule and deliver the Product to another ADI in order to satisfy its delivery obligations, in which case Seller shall be responsible for any additional transmission purchases and/or associated congestion charges incurred by Buyer in connection with Seller's inability to deliver the Product as originally prescheduled. If Buyer fails to timely notify Seller of the unavailability of Firm Transmission, then Buyer shall bear the risk of interruption or curtailment of transmission from the Designated Interface, and the provisions of Section 3D shall apply. C.Timely Request for Finn Transmission Made by Buyer. Accepted by the Receiving Transmission Provider and not Purchased by Buyer. If Buyer's Timely Request for Firm Transmission is accepted by the Receiving Transmission Provider but Buyer elects to purchase non-firm transmission rather than Firm Transmission to take delivery of the Product, then Buyer shall bear the risk of interruption or curtailment of transmission from the Designated Interface. In such circumstances, if Seller's delivery is interrupted as a result of transmission relied upon by Buyer from the Designated Interface, then Seller shall be deemed to have satisfied its delivery obligations to Buyer, Buyer shall be deemed to have failed to receive the Product and Buyer shall be liable to Seller for amounts determined pursuant to Article Four. D.No Timely Request for Firm Transmission Made by Buyer, or Buyer Fails to Timely Send Buyer's Rejection Notice. If Buyer fails to make a Timely Request for Firm Transmission or Buyer fails to timely deliver Buyer's Rejection Notice, then Buyer shall bear the risk of interruption or curtailment of transmission from the Designated Interface. In such circumstances, if Seller's delivery is interrupted as a result of transmission relied upon by Buyer from the Designated Interface, then Seller shall be deemed to have satisfied its delivery obligations to Buyer, Buyer shall be deemed to have failed to receive the Product and Buyer shall be liable to Seller for amounts determined pursuant to Article Four. SO Version 2.1 (modified 4/25/00) OCOPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association 4. Transmission. A.Seller's Responsibilities. Seller shall be responsible for transmission required to deliver the Product to the Designated Interface or ADI, as the case may be. It is expressly agreed that Seller is not required to utilize Firm Transmission for its delivery obligations hereunder, and Seller shall bear the risk of utilizing non-firm transmission. If Seller's scheduled delivery to Buyer is interrupted as a result of Buyer's attempted transmission of the Product beyond the Receiving Transmission Provider's system border, then Seller will be deemed to have satisfied its delivery obligations to Buyer, Buyer shall be deemed to have failed to receive the Product and Buyer shall be liable to Seller for damages pursuant to Article Four. B.Buyer's Responsibilities. Buyer shall be responsible for transmission required to receive and transmit the Product at and from the Designated Interface or ADI, as the case may be, and except as specifically provided in Section 3A and 3B, shall be responsible for any costs associated with transmission therefrom. If Seller is attempting to complete the designation of an ADI as a result of Seller's rights and obligations hereunder, Buyer shall co-operate reasonably with Seller in order to effect such alternate designation. 5. Force Majeure. An "Into" Product shall be subject to the "Force Majeure" provisions in Section 1.23. 6. Multiple Parties in Delivery Chain Involving a Designated Interface. Seller and Buyer recognize that there may be multiple parties involved in the delivery and receipt of the Product at the Designated Interface or ADI to the extent that (1) Seller may be purchasing the Product from a succession of other sellers ("Other Sellers"), the first of which Other Sellers shall be causing the Product to be generated from a source ("Source Seller") and/or (2) Buyer may be selling the Product to a succession of other buyers ("Other Buyers"), the last of which Other Buyers shall be using the Product to serve its energy needs ("Sink Buyer"). Seller and Buyer further recognize that in certain Transactions neither Seller nor Buyer may originate the decision as to either (a) the original identification of the Designated Interface or ADI (which designation may be made by the Source Seller) or (b) the Timely Request for Firm Transmission or the purchase of other Available Transmission (which request may be made by the Sink Buyer). Accordingly, Seller and Buyer agree as follows: A.If Seller is not the Source Seller, then Seller shall notify Buyer of the Designated Interface promptly after Seller is notified thereof by the Other Seller with whom Seller has a contractual relationship, but in no event may such designation of the Designated Interface be later than the prescheduling deadline pertaining to the Transaction between Buyer and Seller pursuant to Section 1. B.If Buyer is not the Sink Buyer, then Buyer shall notify the Other Buyer with whom Buyer has a contractual relationship of the Designated Interface promptly after Seller notifies Buyer thereof, with the intent being that the party bearing actual responsibility to secure transmission shall have up to 30 minutes after receipt of the Designated Interface to submit its Timely Request for Firm Transmission. 51 Version 2.1 (modified 4/25/00) . ©COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association C.Seller and Buyer each agree that any other communications or actions required to be given or made in connection with this "Into Product" (including without limitation, information relating to an AD!) shall be made or taken promptly after receipt of the relevant information from the Other Sellers and Other Buyers, as the case may be. D.Seller and Buyer each agree that in certain Transactions time is of the essence and it may be desirable to provide necessary information to Other Sellers and Other Buyers in order to complete the scheduling and delivery of the Product. Accordingly, Seller and Buyer agree that each has the right, but not the obligation, to provide information at its own risk to Other Sellers and Other Buyers, as the case may be, in order to effect the prescheduling, scheduling and delivery of the Product. "Native Load" means the demand imposed on an electric utility or an entity by the requirements of retail customers located within a franchised service territory that the electric utility or entity has statutory obligation to serve. "Non-Firm" means, with respect to a Transaction, that delivery or receipt of the Product may be interrupted for any reason or for no reason, without liability on the part of either Party. "System Firm" means that the Product will be supplied from the owned or controlled generation or pre-existing purchased power assets of the system specified in the Transaction (the "System") with non-firm transmission to and from the Delivery Point, unless a different Transmission Contingency is specified in a Transaction. Seller's failure to deliver shall be excused: (i) by an event or circumstance which prevents Seller from performing its obligations, which event or circumstance was not anticipated as of the date the Transaction was agreed to, which is not within the reasonable control of, or the result of the negligence of, the Seller; (ii) by Buyer's failure to perform; (iii) to the extent necessary to preserve the integrity of, or prevent or limit any instability on, the System; (iv) to the extent the System or the control area or reliability council within which the System operates declares an emergency condition, as determined in the system's, or the control area's, or reliability council's reasonable judgment; or (v) by the interruption or curtailment of transmission to the Delivery Point or by the occurrence of any Transmission Contingency specified in a Transaction as excusing Seller's performance. Buyer's failure to receive shall be excused (i) by Force Majeure; (ii) by Seller's failure to perform, or (iii) by the interruption or curtailment of transmission from the Delivery Point or by the occurrence of any Transmission Contingency specified in a Transaction as excusing Buyer's performance. In any of such events, neither party shall be liable to the other for any damages, including any amounts determined pursuant to Article Four. "Transmission Contingent" means, with respect to a Transaction, that the performance of either Seller or Buyer (as specified in the Transaction) shall be excused, and no damages shall be payable including any amounts determined pursuant to Article Four, if the transmission for such Transaction is unavailable or interrupted or curtailed for any reason, at any time, anywhere from the Seller's proposed generating source to the Buyer's proposed ultimate sink, regardless of whether transmission, if any, that such Party is attempting to secure and/or has purchased for the Product is firm or non-firm. If the transmission (whether firm or non-firm) that Seller or Buyer is attempting to secure is from source to sink is unavailable, this contingency excuses performance for the entire Transaction. If the transmission (whether firm or non-firm) that Seller or Buyer has 52 Version 2.1 (modified 4/25/00) CCOPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association secured from source to sink is interrupted or curtailed for any reason, this contingency excuses performance for the duration of the interruption or curtailment notwithstanding the provisions of the definition of "Force Majeure" in Article 1.23 to the contrary. "Unit Firm" means, with respect to a Transaction, that the Product subject to the Transaction is intended to be supplied from a generation asset or assets specified in the Transaction. Seller's failure to deliver under a "Unit Firm" Transaction shall be excused: (i) if the specified generation asset(s) are unavailable as a result of a Forced Outage (as defined in the NERC Generating Unit Availability Data System (GADS) Forced Outage reporting guidelines) or (ii) by an event or circumstance that affects the specified generation asset(s) so as to prevent Seller from performing its obligations, which event or circumstance was not anticipated as of the date the Transaction was agreed to, and which is not within the reasonable control of, or the result of the negligence of, the Seller or (iii) by Buyer's failure to perform. In any of such events, Seller shall not be liable to Buyer for any damages, including any amounts determined pursuant to Article Four. 53 Version 2.1 (modified 4/25/00) °COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association EXHIBIT A MASTER POWER PURCHASE AND SALE AGREEMENT CONFIRMATION LETTER This confirmation letter shall confirm the Transaction agreed to on between ("Party A") and ("Party ,regarding the sale/purchase of the Product under the terms and conditions as follows: Seller: Buyer: Product: Into , Seller's Daily Choice Firm (LD) Firm (No Force Majeure) System Firm (Specify System: Unit Firm (Specify Unit(s): Other Transmission Contingency (If not marked, no transmission contingency) FT-Contract Path Contingency Seller [] Buyer FT-Delivery Point Contingency [] Seller Buyer Transmission Contingent Seller Buyer Other transmission contingency (Specify: Contract Quantity: Delivery Point: Contract Price: Energy Price: Other Charges: 54 Version 2.1 (modified 4/25/00) °COPYRIGHT 2000 by the Edison Electric Institute and National Energy Marketers Association Confirmation Letter Page 2 Delivery Period: Special Conditions: Scheduling: Option Buyer: Option Seller: Type of Option: Strike Price: Premium: Exercise Period: This confirmation letter is being provided pursuant to and in accordance with the Master Power Purchase and Sale Agreement dated (the "Master Agreement") between Party A and Party B, and constitutes part of and is subject to the terms and provisions of such Master Agreement. Terms used but not defined herein shall have the meanings ascribed to them in the Master Agreement. [Party A] [Party 13] Name: Name: Title: Title: Phone No: Phone No: Fax: Fax: 55 Version 2.I (modified 4/25/00) OCOPYRIGIIT 2000 by the Edison Electric Institute and National Energy Marketers Association CLEAN ENERGY ALLIANCE TEMPLATE 18 FEBRUARY 2021 CONFIRMATION LETTER CAISO ENERGY This confirmation letter ("Confirmation") confirms the Transaction between (Name of Counterpart p1, a [State of formation and entity type] ("Seller") and Clean Energy Alliance, a California joint powers authority ("Buyer"), each individually a "Party" and together the "Parties", dated as of 2021 (the "Effective Date"). This Transaction is governed by, constitutes part of, and is subject to the terms and provisions of the Edison Electric Institute Master Power Purchase and Sale Agreement dated (the "Master Agreement") between the Parties. This Confirmation and the Master Agreement, including any appendices, exhibits or amendments thereto, shall collectively be referred to as the "Agreement" and shall constitute a single agreement between the Parties with respect to the Transaction. Capitalized terms used but not otherwise defined in this Confirmation, including in Exhibit A hereto, have the meanings ascribed to them in the Master Agreement or the CAISO Tariff (as defined below). To the extent this Confirmation is inconsistent with any provision of the Master Agreement, this Confirmation shall govern the rights and obligations of the Parties hereunder. The Parties hereby agree to the following Transaction: Product: CAISO Energy Contract Price (S/MWh): S/MW11 Contract Quantity (MW): Energy Contract Quantities pursuant to this Confirmation relate to the quantities set forth in Exhibit B. Delivery Period: [Start Date]-[End Date] Delivery Point: Scheduling: Seller will perform all scheduling requirements applicable to the Transaction contemplated under this Confirmation. All scheduling shall be performed consistent with all applicable CAISO and WECC prevailing protocols. The Product will be scheduled by Seller to Buyer on a Day-Ahead basis using an Inter-SC Trade. SC ID: CEA: Counteiparty: Payment and Invoicing: For each month during the Delivery Period, Buyer shall pay Seller an amount equal to the Contract Quantity of Product that is scheduled and delivered to the Delivery Point in accordance with this Confirmation during such month multiplied by the Contract Price. Buyer shall make payment to Seller by wire transfer or ACH payment to the bank account provided on each monthly invoice. Seller agrees to use commercially reasonable efforts to deliver a monthly invoice to Buyer not later than the fifteenth (15th) day of each month for deliveries during the prior calendar month. Buyer shall pay undisputed invoice amounts on or before the twenty-third (23rd) day of the month after the month in which the invoice was received. If such due date falls on a weekend or legal holiday, such due date shall be the next Business Day. CLEAN ENERGY ALLIANCE TEMPLATE 18 FEBRUARY 2021 Credit and Collateral: This Confirmation is subject to the Security Documents and all obligations hereunder are Obligations as defined in such Security Documents. I. Transaction. Throughout the Delivery Period, Seller shall sell and deliver or make available, or cause to be sold and delivered or made available to B uyer, the Contract Quantity of Product in accordance with the terms and conditions of this Confirmation. This Confirmation shall be in full force and effect as of the Effective Date and shall remain in effect until the date on which both Parties have completed the performance of their obligations hereunder, unless earlier terminated pursuant to the terms hereof. 2.Counterparts. This Confirmation may be signed in any number of counterparts with the same effect as if the signatures to the counterparts were upon a single instrument. The Parties may rely on electronic or scanned signatures as originals under this Confirmation, and delivery of an executed signature page by electronic mail transmission (including PDF) shall be the same as delivery of a manually executed signature page. 3.Entire agreement no oral agreements or modifications. This Confirmation sets forth the terms of the Transaction into which the Parties have entered and shall constitute the entire agreement between the Parties relating to the contemplated purchase and sale of the Product. Notwithstanding any other provision of the Agreement to the contrary, this Transaction may be confirmed only through a written document executed by both Parties, and no amendment or modification to this Transaction shall be enforceable except through a written document executed by both Parties. [Signatures appear on the following page.] 2 CLEAN ENERGY ALLIANCE TEMPLATE 18 FEBRUARY 2021 IN WITNESS WHEREOF, the Parties have caused this Confirmation to be duly executed effective as of the date specified as the Effective Date. [COUNTERPARTYI, a 'State of formation CLEAN ENERGY ALLIANCE, a California joint and entity typel powers authority Sign: Sign: Print: Print: Title: Title: APPROVED as to form: By: Name: Title: CLEAN ENERGY ALLIANCE TEMPLATE 18 FEBRUARY 2021 EXHIBIT A DEFINITIONS "CAISO" means the California Independent System Operator Corporation or the successor organization to the functions thereof. "CAISO Energy" means a quantity of energy equal to the hourly quantity without Ancillary Services that is or will be scheduled as an Inter-SC Trade pursuant to the CAISO Tariff for which the only excuse for failure to deliver or receive is an Uncontrollable Force. Terms that are capitalized, but not defined in this definition shall have the meaning ascribed to them in the CAISO Tariff. "CAISO Tariff" means the California Independent System Operator Corporation Agreement and Tariff, Business Practice Manuals (BPMs), and Operating Procedures, including the rules, protocols, procedures and standards attached thereto, as the same may be amended or modified from time-to-time and approved by FERC. "Contract Price" means the price ($/MWh) to be paid by Buyer to Seller for the Contract Quantity delivered hereunder, as set forth on page 1 of this Confirmation. "Contract Quantity" means the quantity (MWh) of Product to be delivered to the CAISO by Seller and scheduled with Buyer as an IST, as set forth in Exhibit B of this Confirmation. "Day-Ahead" has the meaning set forth in the Tariff. "Delivery Period" means the period of time, as set forth on page 1 of this Confirmation. "Delivery Point" has the meaning set forth on page 1 of this Confirmation. "Effective Date" has the meaning set forth on page 1 of this Confirmation. "HE" means hour ending. "Inter-SC Trade" or "II" has the meaning set forth in the CALSO Tariff. "MW" means megawatt. "MWh" means megawatt-hour. "Off-Peak" means HE 01-06, 23-34 PPT Mon-Sat, HE 01-24 Sun and NERC Holidays. "On-Peak" means FEE 07-22 Mon-Sat, exc. NERC Holidays. "PPT" means Pacific Prevailing Time. "Product" means CAISO Energy. "Transaction" has the meaning set forth in the Master Agreement. Exhibit A - 1 CLEAN ENERGY ALLIANCE TEMPLATE 18 FEBRUARY 2021 EXHIBIT B ENERGY CONTRACT QUANTITY AND PRICE SCHEDULE Exhibit B - 1 CEA DRAFT 5 JANUARY 2021 INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT This INT ERC1REDITOR AND COLLATERAL AGENCY AGREEMENT (this "Agreement"), dated as of , 2021 (the "Effective Date"), is entered into by and among (i) River City Bank, a California corporation, not in its individual capacity, but solely in its capacity as Collateral Agent ("Collateral Agent"), (ii) each of the creditors from time to time signatory hereto that are party to a Power Purchase Agreement (each such creditor defined below as a "PPA Provider"), and (iii) Clean Energy Alliance, a California joint powers authority ("CEA"). RECITALS: A.CEA may in the future enter into Master Agreements (as defined in the Security Agreement) and Power Purchase Agreements (as defined in the Security Agreement) directly with PPA Providers (as defined below) for the purchase of Product (as defined in the Security Agreement); B.CEA shall sell the Product purchased by CEA to CEA's customers at rates established by CEA from time to time; C.Pursuant to the Security Agreement of even date herewith, CEA has pledged to Collateral Agent, for the benefit of the PPA Providers, as Secured Creditors, a first priority continuing security interest in and to the Collateral (as such terms are defined in the Security Agreement); D.CEA's customers are billed by San Diego Gas & Electric Company ("SDG&E-) amounts they owe for the Product provided by CEA; E.As of the date hereof, CEA has directed SDG&E to remit all present and future collections on accounts receivable now or hereafter billed by SDG&E on behalf of CEA to Collateral Agent, for remittance to the Lockbox Account (as defined in the Security Agreement) maintained by Collateral Agent, which direction is irrevocable unless both Collateral Agent, at the direction of the Required Secured Creditors (as defined below), and CEA direct SDG&E otherwise; F.Collateral Agent shall have, for the benefit of the Secured Creditors, a first priority continuing security interest in and lien on such receivables, deposit accounts and related Collateral pledged to Collateral Agent for the benefit of the Secured Creditors, as provided in the Security Agreement; G.Distributions from such Collateral shall be made by Collateral Agent as provided in this Agreement and the Security Agreement, with PM Providers having a senior right to distributions from the Collateral; CEA INTERCREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 H.Secured Creditors desire in this Agreement to appoint River City Bank as Collateral Agent to act on their behalf regarding the administration, collection and enforcement of the Collateral, all as more fully provided herein; and I.Secured Creditors also desire to enter into this Agreement to define the rights, duties, authority and responsibilities of Collateral Agent. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. DEFINITIONS 1.1 Defined Terms Each capitalized term used herein and not defined herein shall have the meaning given to such term in the Security Agreement. The following terms shall have the meanings assigned to them in this Section 1.1 or in the provisions of this Agreement referred to below: "Affiliate" means, at any time, and as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, "control" of a Person means the power, directly or indirectly, either to (a) vote 51% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise. "Agreement" shall have the meaning assigned thereto in the Preamble hereof. "Applicable Law" means any applicable law, including without limitation any: (a) federal, state, territorial, county, municipal or other governmental or quasi-governmental law, statute, ordinance, rule, regulation, requirement or use or disposal classification or restriction, whether domestic or foreign; (b) judicial, administrative or other governmental or quasi-governmental order, injunction, writ, judgment, decree, ruling, interpretation, finding or other directive, whether domestic or foreign; (c) common law or other legal or quasi-legal precedent; (d) any binding arbitrator's, mediator's or referee's decision, finding, award or recommendation; or (e) charter, rule, regulation or other organizational or governance document of any national securities exchange or market or other self-regulatory organization. "Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as codified under Title 11 of the United States Code, and the rules promulgated thereunder, as the same may be in effect from time to time. "Bankruptcy Proceeding" means, with respect to any Person, the institution by or against such Person of any proceeding seeking relief as a debtor, or seeking to adjudicate such Person as bankrupt or insolvent, or seeking the reorganization, arrangement, adjustment or composition of such Person or its debts, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for such 2 CEA INTERCREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 Person or for any substantial part of its property, or a general assignment by such Person for the benefit of its creditors. "Business Day" means any day other than a Saturday, a Sunday or a day on which commercial banks in the State of California are required or authorized to be closed. "CEA" means the party identified as such in the Preamble hereof, and its successors and permitted assigns, and includes CEA in its capacity as a debtor in possession under the Bankruptcy Code. "Collateral" has the meaning given to such term in the Security Agreement. "Collateral Agent" means the party identified as such in the Preamble hereof, and its successors and permitted assigns in such capacity. "Control Agreements" means the Account Control Agreement, dated as of even date herewith, among the Depositary Bank, CEA and Collateral Agent and any other agreements entered into among CEA and Depositary Bank which shall designate the Deposit Accounts as blocked accounts under the "control" of Collateral Agent, for the benefit of Secured Creditors, as provided in the UCC, as each such agreement may be amended, supplemented, restated or replaced from time to time. "Customer" means any customer of CEA who purchases Product from CEA but is invoiced by SDG&E, and any other obligor(s) responsible for payment of a Receivable. "Deposit Accounts" has the meaning given to such term in the Security Agreement. "Depositary Bank" has the meaning given to such term in the Security Agreement. "Distribution Date" has the meaning given to such term in the Security Agreement. "Distribution Date Certificate" has the meaning given to such term in the Security Agreement. "Event of Default" has the meaning set forth in the applicable Master Agreement or Power Purchase Agreement. "Joinder" has the meaning given to such term in Section 6.5. "Lien" means any mortgage, pledge, hypothecation, deposit arrangement, encumbrance, lien (statutory or other), assignment, charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any sale governed by Article 9 of the UCC, any conditional sale or title retention agreement, or any capital lease having substantially the same economic effect as any of the foregoing). "Lockbox Account" has the meaning given to such term in the Security Agreement. "Master Agreements" has the meaning given to such term in the Security Agreement. 3 CEA INTERCREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 "Obligations" has the meaning given to such term in the Security Agreement. "Person" means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, or a government or agency or political subdivision thereof (including, without limitation, a city or California joint powers authority). "Power Purchase Agreement" has the meaning given to such term in the Security Agreement. "PPA Provider" means each seller of Product under a Power Purchase Agreement that is a party to this Agreement, and its respective successors and assigns. "Product" has the meaning given to such term in the Security Agreement. "Receivable" has the meaning given to such term in the Security Agreement. "Required Secured Creditors" means, as of any date, the PPA Provider, or PPA Providers that, as of such date, have at least seventy five percent (75%) of the total aggregate Sharing Percentage, as calculated on such date. "Secured Creditors" means each PPA Provider party to this Agreement and their respective successors and assigns "Security Agreement" means the Security Agreement, dated as of even date herewith, between CEA and Collateral Agent for the benefit of Secured Creditors, granting a security interest in the Collateral to secure the Obligations, as amended, supplemented, restated or replaced from time to time. "Sharing Percentage" means, as of any date, with respect to each PPA Provider as calculated by CEA in a commercially reasonable manner, the percentage equivalent of a fraction, (a) the numerator of which is the sum of (i) the outstanding amount of the Obligations of such PPA Provider, as of such date, and (ii) the calculated amount of the Termination Payment, if any, that would be owed to such PPA Provider if a Termination Event occurred on such date, and (b) the denominator of which is the sum of (i) the outstanding aggregate amount of the Obligations of all PPA Providers as of such date, and (ii) the calculated aggregate amount of the Termination Payments, if any, that would be owed to all PPA Providers if a Termination Event occurred on such date. "Termination Event" means, with respect to any Power Purchase Agreement or Master Agreement, the termination of any Transactions (as defined in the Power Purchase Agreement or Master Agreement, as applicable) and/or acceleration of all amounts owing thereunder in accordance with the terms of such Power Purchase Agreement or Master Agreement, as applicable. "Termination Payment" means, with respect to any Power Purchase Agreement, any and all Obligations arising upon or in connection with a Termination Event under such Power Purchase Agreement, including any termination fees and payments or other amounts owed by CEA thereunder, as of the date of such Termination Event, as calculated in a commercially reasonable manner by the PPA Provider to such Power Purchase Agreement. 4 CEA INTERCREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 "Transaction Agreements" means the Master Agreements, any other Power Purchase Agreements, the Control Agreements, the Security Agreement, this Agreement and all other agreements, instruments or documents to which CEA is a party and which are executed and delivered from time to time in connection with or as security for CEA's obligations under the Master Agreements, any other Power Purchase Agreements and any other Transaction Agreements, as the same may be amended, restated, modified, replaced, extended or supplemented from time to time. "UCC" means the Uniform Commercial Code in effect in the State of California from time to time. 1.2 Other Interpretive Provisions References to "Sections" shall be to Sections of this Agreement unless otherwise specifically provided. For purposes hereof, "including" is not limiting and "of' is not exclusive. All capitalized terms defined in the UCC and not otherwise defined herein or in the Security Agreement shall have the respective meanings provided for by the UCC. Any of the terms defined in this Agreement may, unless the context otherwise requires, be used in the singular or the plural depending on the reference. All references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations. References to any instrument, agreement or document shall include such instrument, agreement or document as supplemented, modified, amended or restated from time to time to the extent permitted by this Agreement or the Security Agreement, as applicable. References to any Person include the successors and permitted assigns of such Person. References to any statute or act shall include all related current regulations and all amendments and any successor statutes, acts and regulations. References to any statute or act, without additional reference, shall be deemed to refer to federal statutes and acts of the United States. References to any agreement, instrument or document shall include all schedules, exhibits, annexes and other attachments thereto. 2. RELATIONSHIPS AMONG SECURED CREDITORS 2.1 Liens in the Collateral At all times, whether before, after or during the pendency of any Bankruptcy Proceeding and notwithstanding the priorities which would ordinarily result from the order of granting of any Liens, the order of attachment or perfection thereof, or the order of filing or recording of any financing statements or other instrument, or the priorities that would otherwise apply under Applicable Law, Collateral Agent, for the benefit of the Secured Creditors, shall have a first priority lien in the Collateral to secure the Obligations. No Secured Creditor will acquire in its own name a Lien in the assets of CEA to secure any Obligations arising under a Power Purchase Agreement other than Liens arising by operation of law such as setoff rights. Secured Creditors shall share in the Proceeds of the Collateral as provided for in Section 4.6. 5 CEA INTERCREDITOR AGREEMENT CEA DRAFT 5 JANUARY 2021 2.2 No Debt Subordination Nothing in this Agreement shall be construed to be or operate as a subordination of any of the Obligations owed to a Secured Creditor in right of payment to the Obligations owed to any other Secured Creditor. 2.3 Restrictions on Enforcement Action So long as any Obligation is outstanding and the Security Agreement remains in effect, the provisions of this Agreement and the Security Agreement shall provide the exclusive method by which Collateral Agent or any Secured Creditor may exercise rights in or assert claims against the Collateral or CEA pertaining to the Obligations. Notwithstanding the foregoing, nothing in this Agreement shall prohibit or otherwise restrict a Secured Creditor from exercising any right of termination, acceleration or similar right in accordance with its Master Agreement or Power Purchase Agreement, or prohibit or otherwise restrict a Secured Creditor from exercising any set- off, netting or recoupment rights it may have with respect to the Obligations owing to it. 2.4 No Restriction on Terms of Power Purchase Agreements This Agreement does not impose any restriction on the terms of a Master Agreement or Power Purchase Agreement. CEA and any PPA Provider are free to agree on any and all of the terms for charges that may be provided for under its Master Agreement or Power Purchase Agreement, such as the price for the Product, late fees, and early termination fees. Without limiting the foregoing, no PPA Provider shall be restricted as to the amount or output of the Product it sells to CEA, or the length of such Power Purchase Agreement, or any amendment thereof. Upon request by Collateral Agent, each PPA Provider will disclose to Collateral Agent the Obligations then due and owing to such PPA Provider in an itemized manner, and CEA, consents to such disclosure to such Person or any party hereto. 2.5 Representations and Warranties Each Secured Creditor represents and warrants to the other parties hereto that: (a)the execution, delivery and performance by such Secured Creditor of this Agreement has been duly authorized by all necessary corporate or similar proceedings and does not and will not contravene any provision of law, its charter or by-laws or any amendment thereof, or of any indenture, agreement, instrument or undertaking binding upon such Secured Creditor; (b)the execution, delivery and performance by such Secured Creditor of this Agreement will result in a valid and legally binding obligation of such Secured Creditor enforceable against such Secured Creditor in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws in effect from time to time affecting the rights of creditors generally and general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and (c)any Termination Payment calculated by it and provided to the Collateral Agent or the other Secured Creditors shall be calculated in good faith, in accordance with its 6 CEA INTERCREDITOR AGREEMENT CEA DRAFT 5 JANUARY 2021 Master Agreement or Power Purchase Agreement, and consistent with such Secured Creditor's historical practices. 2.6 Cooperation; Accountings Each Secured Creditor will, upon the reasonable request of the Collateral Agent, from time to time execute and deliver or cause to be executed and delivered such further instruments, and do and cause to be done such further acts as may be reasonably necessary or proper to carry out more effectively the provisions of this Agreement. Each Secured Creditor agrees to provide to the Collateral Agent upon reasonable request a statement of all payments received by it in respect of the Obligations pertaining to its Power Purchase Agreement. 3. AGENCY PROVISIONS 3.1 Appointment and Authorization of Collateral Agent (a)Each Secured Creditor hereby designates and appoints River City Bank, as Collateral Agent of such Secured Creditor under this Agreement and River City Bank hereby accepts such designation and appointment. The Collateral Agent is a non-fiduciary agent of the Secured Creditors and does not act in a fiduciary capacity or as trustee for the Secured Creditors or Collateral. (b)Notwithstanding any provision to the contrary elsewhere in this Agreement, Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein, the Control Agreements and in the Security Agreement, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise exist against Collateral Agent. The right or power of Collateral Agent to perform any discretionary act hereunder shall not be construed as a duty. Collateral Agent is hereby authorized, empowered and instructed to execute, deliver and perform its obligations under this Agreement, the Security Agreement, the Control Agreements and each other document as may be necessary or convenient in connection with the foregoing; provided, however, that the Collateral Agent shall not amend, modify or terminate the Control Agreements or the Security Agreement without the prior written consent of the Secured Creditors. (c)Collateral Agent shall not (i) be subject to any fiduciary or other implied duties, (ii) have any right or duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the Security Agreement, the Control Agreements, or other agreement to which the Collateral Agent is a party in connection therewith, and (iii) be required to take action that, in its opinion or the opinion of its counsel, may expose Collateral Agent to liability. (d)The Collateral Agent, hereby represents and warrants that (i) it has all requisite power and authority to execute, deliver and perform under this Agreement; (ii) the execution, delivery and performance by it of this Agreement has been duly authorized by all requisite corporate or other action; (iii) no consent or approval of any other Person and no consent, license, approval or authorization of any governmental authority is required in connection with the execution, delivery, and performance by it of this Agreement; and (iv) this Agreement constitutes 7 CEA INTERCREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 its legal, valid and binding obligation enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws in effect from time to time affecting the rights of creditors generally and general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law. 3.2 Collateral (a)Deposit Accounts Subject to Collateral Agent's Control. Collateral Agent agrees that its security interest and right of setoff in and to the Deposit Accounts is held for the benefit of all the Secured Creditors and itself as Collateral Agent, and that Collateral Agent will comply with this Agreement and the Security Agreement in distributing monies received from such Deposit Accounts. (b)Collateral Held by Secured Creditors. Each Secured Creditor hereby acknowledges that if any Secured Creditor (individually or through its own custodian) shall hold or control, at any time, any assets comprising Collateral, such possession or control is also held for the benefit of Collateral Agent for the benefit of the Secured Creditors. The foregoing sentence shall not be construed to impose any duty on a Secured Creditor (or any third party acting on its behalf) with respect to such Collateral if it is not perfected by possession or control. 3.3 Delegation of Duties Collateral Agent may exercise its powers and execute any of its duties under this Agreement by or through employees, agents, and attorneys-in-fact, and shall be entitled to take and to rely on advice of counsel concerning all matters pertaining to such powers and duties. Subject to Section 3.4, Collateral Agent may utilize the services of such Persons as Collateral Agent in its reasonable discretion may determine, and shall be entitled to indemnity hereunder for all reasonable fees and expenses of such Persons. 3.4 Exculpatory Provisions Neither Collateral Agent (as such or in its individual capacity) nor any of Collateral Agent's officers, directors, employees, agents, attorneys-in-fact, or Affiliates shall responsible in any manner to CEA or any of the Secured Creditors for any recitals, statements, representations, warranties or covenants made by CEA or any Secured Creditor or any officer thereof contained in any certificate, report, statement or other document referred to or provided for in, or received by, Collateral Agent under or in connection with this Agreement or any other document in any way connected therewith, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any Lien or the perfection or priority of any such Lien (including any Lien in the Collateral), or for any failure of CEA to perform its obligations thereunder. 3.5 Reliance by Collateral Agent Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing (in electronic or physical form), resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document or conversation reasonably believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, 8 CEA INTERCREDITOR AGREEMENT CEA DRAFT 5 JANUARY 2021 without limitation, counsel to CEA), independent accountants and other experts selected by Collateral Agent. Collateral Agent shall be fully justified in failing or refusing to take action not provided for under this Agreement unless it shall first be indemnified to its reasonable satisfaction by CEA or others against any and all liability and expense which may be incurred by it by reason of taking, continuing to take or refraining from taking any such action. Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with the provisions of Section 4 hereof, and any action taken or failure to act pursuant thereto shall be binding upon all the Secured Creditors. 3.6 Knowledge Collateral Agent shall not be deemed to have knowledge or notice of any facts regarding the Collateral or the Obligations unless Collateral Agent has received written notice from the Secured Creditor or CEA referring to this Agreement, describing such facts in reasonable detail. 3.7 Non-Reliance on Collateral Agent and Secured Creditors Each Secured Creditor expressly acknowledges that except as expressly set forth in this Agreement, neither Collateral Agent (as such or in its individual capacity) nor any of Collateral Agent's officers, directors, employees, agents, attorneys-in-fact, or Affiliates has made any representations or warranties to it in connection with this Agreement, except as expressly provided herein at Section 3.1(d) and that no act in connection with this Agreement by Collateral Agent hereinafter taken shall be deemed to constitute any representation or warranty by Collateral Agent (as such or in its individual capacity) to any Secured Creditor. 3.8 Reporting CEA shall provide online access for the Lockbox Account that enables the Collateral Agent and the Secured Creditors to view the balance of the Lockbox Account at any time. Upon written request by a Secured Creditor, Collateral Agent will provide such Secured Creditor with a copy of the bank statement for the Lockbox Account no later than five (5) Business Days following receipt thereof by the Collateral Agent. Collateral Agent shall have no duty or responsibility to provide the Secured Creditors with, or otherwise monitor or review in any respect, any credit or other information concerning the business, operations, property, financial and other condition or creditworthiness of CEA which may come into the possession of Collateral Agent or any of its officers, directors, employees, agents, attorneys-in-fact, or Affiliates. Collateral Agent shall promptly provide to Secured Creditors copies of all notices received by it regarding the Collateral, the Security Agreement, the Control Agreements or this Agreement; provided that the failure to provide such copies shall not cause Collateral Agent (as such or in its individual capacity) to incur liability to any Person. Collateral Agent shall promptly (but in no event more than 3 Business Days) after Collateral Agent's receipt of a written request from a Secured Creditor provide a report to all Secured Creditors regarding the status of any payments or distributions of Collateral received by Collateral Agent. 9 CFA INTERCREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 3.9 Indemnification CEA shall indemnify Collateral Agent (as such and in its individual capacity) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time be imposed on, incurred by or asserted against Collateral Agent (as such or in its individual capacity) arising out of actions or omissions of Collateral Agent arising out of this Agreement; provided that neither CEA nor the Secured Creditors shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from Collateral Agent's fraud, willful misconduct, negligence or bad faith. The agreements in this Section 3.9 shall survive the repayment of the Obligations and the termination of this Agreement. 3.10 Collateral Agent May Act in its Individual Capacity River City Bank, a California corporation, and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with CEA and its Affiliates as though it was not Collateral Agent hereunder. 3.11 Successor Collateral Agent (a) Collateral Agent may resign at any time upon at least 60 days' prior written •notice to the Secured Creditors and CEA, or may be removed by the demand of the Required Secured Creditors for cause at any time if Collateral Agent has failed to take any action that Collateral Agent is required to take hereunder after request by a Secured Creditor, or Collateral• Agent has taken any action hereunder that Collateral Agent is not authorized to take hereunder or that violates the terms hereof and, in either case, has not remedied such failure or violation with reasonable promptness after a written request for corrective action is delivered to Collateral Agent. After any resignation or removal hereunder of Collateral Agent, the provisions of this Section 3 shall continue to be binding upon and inure to its benefit as to any actions taken or omitted to be taken by it in its capacity as Collateral Agent hereunder while it was Collateral Agent under this Agreement. (b) Upon receiving written notice of any such resignation or removal, a successor Collateral Agent, reasonably acceptable to CEA, shall be appointed by the Secured Creditors provided, if an Event of Default as to CEA has occurred no such acceptance of the successor Collateral Agent by CEA shall be required. If a successor Collateral Agent shall not have been appointed pursuant to this Section 3.11(b) within 60 days after Collateral Agent's notice of resignation or upon removal of Collateral Agent, then any Secured Creditor or Collateral Agent (unless Collateral Agent is being removed) may petition a court of competent jurisdiction for the appointment of a successor Collateral Agent (it being expressly understood and agreed that any such petition by the Collateral Agent shall be at the expense of the Secured Creditors) and the Collateral Agent shall continue its functions in accordance with subsection (c) below. The appointment of a successor Collateral Agent pursuant to this Section 3.11(b) shall become effective upon the acceptance of the appointment as Collateral Agent hereunder by a successor Collateral Agent. Upon such effective appointment, the successor Collateral Agent shall succeed 10 CEA INTERCREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent. (c)The resignation or removal of a Collateral Agent shall take effect on the day specified in the notice described in Section 3.11(a), unless previously a successor Collateral Agent shall have been appointed and shall have accepted such appointment, in which event such resignation or removal shall take effect immediately upon the acceptance of such appointment by such successor Collateral Agent, and provided, further, that no resignation or removal shall be effective hereunder unless and until a successor Collateral Agent shall have been appointed and shall have accepted such appointment. (d)Upon the effective appointment of and acceptance by a successor Collateral Agent, the successor Collateral Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent and the predecessor Collateral Agent hereby appoints the successor Collateral Agent the attorney-in-fact of such predecessor Collateral Agent to accomplish the purposes hereof, which appointment is coupled with an interest. Such appointment and designation shall be full evidence of the right and authority to act as Collateral Agent hereunder and all power, duties, documents, rights and authority of the previous Collateral Agent shall rest in the successor, without any further deed or conveyance. The predecessor Collateral Agent shall, nevertheless, on the written request of the Secured Creditors or successor Collateral Agent, execute and deliver any other such instrument transferring to such successor Collateral Agent all the Collateral, properties, rights, power, duties, authority and title of such predecessor. In connection with the resignation or removal of Collateral Agent, CEA, to the extent requested by the Secured Creditors or Collateral Agent, shall procure and execute any and all documents, conveyances or instruments requested, including any documentation appropriate to reflect the transfer of the Lien or other rights granted herein to such successor Collateral Agent. 4. ACTIONS BY COLLATERAL AGENT 4.1 Duties and Obligations The duties and obligations of Collateral Agent are only those set forth in this Agreement, the Control Agreements and the Security Agreement. The Collateral Agent shall not have any duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Collateral, or to otherwise take or refrain from taking any action hereunder, except as expressly provided by the terms hereof or in written instructions received pursuant hereto, and no implied duties or obligations shall be read into this Agreement against the Collateral Agent. Upon the written instruction at any time and from time to time of the Required Secured Creditors, the Collateral Agent shall take such action or refrain from taking such action, not inconsistent with the provisions of this Agreement, as may be specified in such instruction. Notwithstanding the foregoing, Collateral Agent shall not be required to take, or refrain from taking, any action that, in its opinion or in the opinion of its counsel, may expose Collateral Agent (as such or in its individual capacity) to liability. Collateral Agent (as such or in its individual capacity) shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; provided, however, that such action or omission by Collateral Agent does not constitute willful misconduct, negligence or bad faith. The Collateral Agent shall not be obligated to expend its own funds or to incur any obligation in its individual capacity in the performance of any of its 11 CEA INTERCREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 obligations under or in connection with this Agreement, the Security Agreement, the Control Agreements or any related document. 4.2 Voting; Amendments to Transaction Agreements Collateral Agent shall act at the written instruction of the Required Secured Creditors in connection with all material actions, matters or decisions, or any actions, matters or decisions requiring a vote or instruction under this Agreement, under any Control Agreement or the Security Agreement, including with respect to Section 5.01 of the Security Agreement. Notwithstanding the foregoing or anything in any Transaction Agreement to the contrary, without the prior written consent of all of the Secured Creditors, Collateral Agent shall not enter into any amendments, modifications, restatements, extensions or supplements of this Agreement, the Control Agreement or the Security Agreement. 4.3 Actions Pertaining to the Collateral Collateral Agent has the sole and exclusive standing and right to assert claims against the Collateral, and no Secured Creditor may enforce or assert against CEA, the Deposit Accounts, the Depositary Bank, or any other Person, any claims against the Collateral. Collateral Agent shall only act at the written instruction of the Required Secured Creditors in (a) taking any action under this Agreement, the Security Agreement or any Control Agreement with respect to the Collateral following an Event of Default and (b) asserting any claim under this Agreement, the Security Agreement or any Control Agreement. Notwithstanding the foregoing, if Collateral Agent deems it prudent to take reasonable actions, without the instruction of a Secured Creditor, to protect the Collateral, it may (but shall be under no obligation to) do so and thereafter provide written notice to all the Secured Creditors of such actions, and no provision of this Agreement shall restrict Collateral Agent from exercising such rights and no liability shall be imposed on Collateral Agent for omitting to exercise such rights. 4.4 Duty of Care Collateral Agent shall have no duty or obligation as to the collection or protection of the Collateral or any income thereon, nor as to the preservation of rights against prior parties, nor as to the preservation of rights pertaining to the Collateral beyond the safe custody of any Collateral in Collateral Agent's actual possession. Without limiting the generality of the foregoing, Collateral Agent shall have no duty or obligation (a) other than to instruct CEA as set forth in Section 4.05 of the Security Agreement, to see to any recording or filing of any financing statement evidencing a security interest in the Collateral, or to see to the maintenance of any such recording or filing, (b) to see to the payment or discharge of any tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Collateral, (c) to confirm or verify the contents of any reports or certificates delivered to Collateral Agent reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties, or (d) to ascertain or inquire as to the performance of observance by any other Person of any representations, warranties or covenants. Collateral Agent may require an officer's certificate or an opinion of counsel before acting or refraining from acting, and Collateral Agent shall not be liable for any action it takes or omits to take in good faith in reliance on an officer's certificate or an opinion of counsel. 12 CEA INTERCREDITOR AGREEMENT CEA DRAFT 5 JANUARY 2021 4.5 Further Assurances CEA and each Secured Creditor shall take such actions and cooperate with Collateral Agent as may be reasonably requested, and execute such documents as may be reasonably necessary, to carry out or effect the intent of the parties hereto. 4.6 Distribution of Proceeds of Collateral Collateral Agent shall distribute the Proceeds of the Collateral as provided in Section 6.02 of the Security Agreement. Collateral Agent shall rely on the provisions in Section 6 of the Security Agreement for calculating the Obligations payable from such Proceeds. Collateral Agent has no duty or obligation to make an independent inquiry regarding the foregoing calculations or the facts on which such calculations are based. 4.7 Deposit Accounts Subject to distributions permitted under the Security Agreement or this Agreement, the Proceeds of Collateral shall be maintained in the Deposit Accounts, and no such account shall be required to be interest bearing. 4.8 Restoration of Obligations In the event any payment of, or any application of any amount, asset or property to, any of the Obligations owed to any Secured Creditor or any obligations owed to Collateral Agent under the Security Agreement or this Agreement, or any part thereof, made at any time (including, without limitation, made prior to any applicable Bankruptcy Proceeding) is rescinded or are otherwise to be restored or returned by such Secured Creditor or Collateral Agent at any time after such payment or application, whether by order of any court, by settlement, or otherwise, then the respective obligations and the security interests of such Person shall be reinstated, all as though such payment or application had never been made. 4.9 Privileged Materials With respect to all materials and communications relating to the Collateral with or in the possession of Collateral Agent or its counsel that are subject to any claim of privilege in favor of Collateral Agent, each Secured Creditor agrees that Collateral Agent shall not be required to take any action under this Agreement that compromises the privileged nature of such conversations or materials, and all such privileges shall be preserved. 4.10 Action Upon Instruction Whenever Collateral Agent is unable to decide between alternative courses of action permitted or required by the terms of this Agreement or any document, or is unsure as to the application, intent, interpretation or meaning of any provision of this Agreement or any other document, or any such provision may be ambiguous as to its application or in conflict with any other applicable provision, permits any determination by Collateral Agent, or is silent or incomplete as to the course of action that Collateral Agent is required to take with respect to a particular set of facts, then Collateral Agent may give notice (in such form as shall be appropriate 13 CEA INTEICREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 under the circumstances) to the Secured Creditors requesting instruction as to the course of action to be adopted, and, to the extent Collateral Agent acts or refrains from acting in good faith in accordance with any such written instruction of the Required Secured Creditors received, Collateral Agent shall not be personally liable on account of such action or inaction to any Person. If Collateral Agent shall not have received appropriate instruction from the Required Secured Creditors within ten (10) days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this Agreement, the Security Agreement, and Control Agreements or other documents, and as it shall deem to be in the best interests of the Secured Creditors, and Collateral Agent shall have no personal liability to any Person for any such action or inaction. 5. BANKRUPTCY PROCEEDINGS The following provisions shall apply during any Bankruptcy Proceeding of CEA: (a)Collateral Agent shall represent all Secured Creditors in connection with all matters directly relating solely to the Collateral, use of cash collateral constituting Collateral, relief from the automatic stay to exercise rights or remedies against the Collateral and adequate protection rights involving the Collateral. In such Bankruptcy Proceeding, Collateral Agent shall act on the instruction of the Required Secured Creditors. (b)Each Secured Creditor shall be free to act independently on any issue not directly relating solely to the Collateral. (c)Each Secured Creditor shall file its own proof of claim in respect of the Obligations owing to it. Collateral Agent shall have the right to file (but has no obligation to file) a proof of claim in its capacity as Collateral Agent in respect of any or all of the Obligations. (d)Each Secured Creditor shall have the sole right to vote the claims pertaining to the Obligations owing to it by CEA. (e)Any property received by any Secured Creditor with respect to the Obligations owing to it as a result of, or during, any Bankruptcy Proceeding will be delivered promptly to Collateral Agent for distribution in accordance with Section 4.6. 6. MISCELLANEOUS 6.1 Amendments to this Agreement and Assignments This Agreement may not be modified, altered or amended, except by an agreement in writing signed by Collateral Agent, CEA and all the Secured Creditors. This Agreement is assignable by a Secured Creditor. Collateral Agent shall only transfer or assign its rights hereunder by operation of law or in connection with a resignation or removal from its capacity as Collateral Agent in accordance with the terms of this Agreement and, if required by the successor Collateral Agent, the parties agree to execute and deliver a restated Agreement in the event there is a replacement of Collateral Agent. CEA shall not assign, transfer or delegate its rights or obligations 14 CEA INTERCREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 hereunder without the prior written consent of all the Secured Creditors and Collateral Agent. Any assignee of a PPA Provider under a Power Purchase Agreement shall comply with Section 6.5. 6.2 Marshalling Collateral Agent shall not be required to marshal any present or future security for (including, without limitation, the Collateral), or guaranties of the Obligations or to resort to such security or guaranties in any particular order; and all of Collateral Agent's rights in respect of such security and guaranties shall be cumulative and in addition to all other rights, however existing or arising. 6.3 Governing Law; Jurisdiction THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND ENFORCED UNDER, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO THE PRTNCIPLES OF CONFLICTS OF LAW OF SUCH STATE. 6.4 Waiver of Jury Trial EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. 6.5 Joinder Each time CEA enters into a new Power Purchase Agreement as to which the counterparty thereto is to share in the Collateral, such counterparty shall execute and deliver to Collateral Agent a Joinder to Intercreditor and Collateral Agency Agreement in the form of Exhibit A hereto (a "Joinder") at the same time as such counterparty executes the Power Purchase Agreement. Further, no PPA Provider may assign or transfer its rights hereunder or under a Power Purchase Agreement without such assignees or transferees delivering an executed Joinder to Collateral Agent. By executing a Joinder, such counterparty agrees to be bound by the terms of this Agreement as though named herein and shall share in the Collateral in accordance with the provisions of this Agreement. Each such counterparty that is an assignee shall upon execution and delivery of a Joinder be the PPA Provider and Secured Creditor under this Agreement representing the holder of the assigned Obligations and shall be obligated for all obligations to Collateral Agent of its transferor, and such transferor shall cease forthwith to be a Secured Creditor hereunder. 6.6 Counterparts This Agreement and any related amendment or waiver may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, but all of which together shall constitute one instrument. . The parties may rely on electronic or scanned signatures as originals. In proving this Agreement it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom enforcement is sought. Delivery of an executed signature page of this 15 CEA ;NTERCREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 Agreement by electronic format (including portable document format (pdf)) shall be the same as delivery of an original executed signature page. 6.7 Termination Unless earlier terminated by the parties hereto, upon termination of the Security Agreement in accordance with its terms and upon payment of all Obligations owed to Collateral Agent, this Agreement shall terminate, except for those provisions hereof that by their express terms shall survive the termination of this Agreement; provided, however, if all or any part of the Obligations are reinstated pursuant to Section 4.8, then this Agreement shall be renewed as of such date and shall thereafter continue in full force and effect to the extent of the Obligations so invalidated, set aside or repaid, or that remain outstanding. 6.8 Controlling Terms In the event of any inconsistency between this Agreement and the Security Agreement, the Security Agreement shall control. 6.9 Immunity Waiver CEA warrants and covenants that with respect to its contractual obligations hereunder and performance thereof, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (a) suit, (b) jurisdiction of court (including a court located outside the jurisdiction of its organization), (c) relief by way of injunction, order for specific performance or recovery of property, (d) attachment of assets, or (e) execution or enforcement of any judgment. To the extent that CEA may be or becomes entitled to claim, with respect to itself and/or its revenues and assets (irrespective of their use or intended use), any immunity on the grounds of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of injunction or order for specific performance or recovery of property, (iv) attachment of its assets (whether before or after judgment) and/or (v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any legal proceedings in the courts of any jurisdiction, CEA IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUCH IMMUNITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS AND IRREVOCABLY AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT IT WILL NOT CLAIM ANY SUCH IMMUNITY IN ANY PROCEEDINGS.; PROVIDED, HOWEVER THAT NOTHING IN THIS AGREEMENT SHALL WAIVE THE OBLIGATIONS AND/OR RIGHTS SET FORTH IN THE CALIFORNIA TORT CLAIMS ACT (GOVERNMENT CODE SECTION 810 ET SEQ.). 6.10 Notices Except as otherwise expressly provided herein, all notices, consents and waivers and other communications made or required to be given pursuant to this Agreement shall be in writing and shall be delivered by hand, mailed by registered or certified mail or prepaid overnight air courier, or by facsimile communications, addressed as provided below their signatures to this Agreement or at such other address for notice as CEA, Collateral Agent or such Secured Creditor shall last 16 CEA INTERCRED1TOR AGREEMENT CEA DRAFT 5 JANUARY 2021 have furnished in writing to the Person giving the notice. A notice addressed as provided herein that (i) is delivered by hand or overnight courier is effective upon delivery, (ii) is sent by facsimile communication is effective if made by confirmed transmission at a telephone number designated as provided herein for such purpose, and (iii) is sent by registered or certified mail is effective on the earlier of acknowledgement of receipt as shown on the return receipt or three (3) Business Days after mailing. [Signatures on fbIlowing pages! 17 CEA INTERCREDITOR AGREEMENT CEA DRAFT 5 JANUARY 2021 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their authorized representative as of the Effective Date. RIVER CITY BANK, not in its individual capacity, but solely as Collateral Agent By: Name: Title: Notice Address: River City Bank 2485 Natomas Park Dr. Sacramento, CA 95833 Attention: Cash Management Fax: 916-567-2799 Email: cashmgmtArivercitybank.com CEA INTERCREDITGR AGREEMENT CEA DRAFT 5 JANUARY 2021 , as Secured Creditor By: Name: Title: Notice Address: Attn: With a copy to: CEA INTERCREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 , as Secured Creditor By: Name: Title: Notice Address: Attn: With a copy to: CEA INTERCREDITOR AGREEMENT CEA DRAFT 5 JANUARY 2021 , as Secured Creditor By: Name: Title: Notice Address: Attn: With a copy to: CEA INTERCREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 CLEAN ENERGY ALLIANCE, a California joint powers authority By: Name: Title: Notice Address: Clean Energy Alliance Attention: Barbara Boswell, Interim CEO 1200 Carlsbad Village Dr. Carlsbad, CA 92008 Email: ceo@thecleanenergyalliance.org CEA IN1ERCREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 EXHIBIT A JOINDER TO INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT River City Bank, in its capacity as Collateral Agent 2485 Natomas Park Dr. Sacramento, CA 95833 Attention: Cash Management Reference is made to the Intercreditor and Collateral Agency Agreement, dated as of 2021 (as amended or restated from time to time, the "Intercreditor Agreement"; capitalized terms used but not otherwise defined herein shall have the meaning ascribed thereto in the Intercreditor Agreement), among River City Bank, as Collateral Agent, and the PPA Providers party thereto, relating to Clean Energy Alliance, a California joint powers authority ("CEA"). By executing and delivering this Joinder to Intercreditor and Collateral Agency Agreement (this "Joinder"), the undersigned holder of the Obligations arising under that certain Power Purchase Agreement between CEA and the undersigned, a copy of which is enclosed with this Joinder, (1) agrees to the appointment of River City Bank, as its Collateral Agent in accordance with Section 3.1 of the Intercreditor Agreement, and (2) agrees to be bound by all of the terms and provisions of the Intercreditor Agreement. The address set forth under the signature of the undersigned constitutes its address for the purposes of Section 6.10 of the Intercreditor Agreement. Dated as of: 2021. [Counterparty name] By: Name: Title: [Counterparty address for notices] Attn: CEA INTERCREDITCR AGREEMENT CEA DRAFT 5 JANUARY 2021 SECURITY AGREEMENT This SECURITY AGREEMENT (this "Agreement") dated as of , 2021 (the "Effective Date"), is entered into by and among Clean Energy Alliance, a California joint powers authority, as pledgor ("CEA"), and River City Bank, a California corporation, not in its individual capacity, but solely as collateral agent (in such capacity, together with its successors and permitted assigns in such capacity, the "Collateral Agent"), for the benefit of the PPA Providers (as defined below), each PPA Provider, a "Secured Creditor" (as defined below). RECITALS: A.CEA may in the future enter into Master Agreements (as defined below) and Power Purchase Agreements (as defined below) directly with PPA Providers for the purchase of Product (as defined below), and shall cause such PPA Provider to become a party to the Intercreclitor Agreement (as defined below); B.CEA shall sell the Product purchased by CEA from PPA Providers to CEA's customers at rates established by CEA from time to time; C.CEA generates accounts receivable owing to CEA by CEA's customers for such Product; D.CEA's customers are billed by San Diego Gas & Electric Company ("SDG&E") amounts they owe for the Product provided by CEA; E.As of the date hereof, CEA has directed SDG&E to remit all present and future collections on accounts receivable now or hereafter billed by SDG&E on behalf of CEA to Collateral Agent, for remittance to the Lockbox Account (as defined below) maintained by Collateral Agent, which direction is irrevocable unless both Collateral Agent, at the direction of the Required Secured Creditors (as defined below), and CEA direct SDG&E otherwise; • F.CEA desires herein to pledge to Collateral Agent, for the benefit of Secured Creditors, a first priority continuing security interest in and to the Collateral (defined below); G.The Secured Creditors, CEA and Collateral Agent have entered into the lntercreditor Agreement (as defined below) wherein the Secured Creditors appointed River City Bank, as Collateral Agent to act on their behalf regarding the administration, collection and allocation of the proceeds of the Collateral; and I-I. CEA and Collateral Agent desire to enter into this Agreement to evidence the pledge of the Collateral and to set forth their agreements regarding the Collateral and the application of the Collateral to the Obligations (as defined below). NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows: CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 1. DEFINITIONS 1.1 Defined Terms The following terms shall have the meanings assigned to them in this Section 1.1 or in the provisions of this Agreement referred to below: "Applicable Law" means any applicable law, including without limitation any: (a) federal, state, territorial, county, municipal or other governmental or quasi-governmental law, statute, ordinance, rule, regulation, requirement or use or disposal classification or restriction, whether domestic or foreign; (b) judicial, administrative or other governmental or quasi governmental order, injunction, writ, judgment, decree, ruling, interpretation, finding or other directive, whether domestic or foreign; (c) common law or other legal or quasi-legal precedent; (d) any binding arbitrator's, mediator's or referee's decision, finding, award or recommendation; or (e) charter, rule, regulation or other organizational or governance document of any national securities exchange or market or other self-regulatory organization. "Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as codified under Title 11 of the United States Code, and the rules promulgated thereunder, as the same may be in effect from time to time. "Business Day" means any day other than a Saturday, a Sunday or a day on which commercial banks in the State of California are required or authorized to close. "CEA" means the party identified as such in the Preamble hereof, and its successors and permitted assigns, and includes CEA in its capacity as a debtor in possession under the Bankruptcy Code. "Collateral" means the following, whether now existing or hereafter arising: (a) the Receivables; (b) the Deposit Accounts; (c) all cash, cash equivalents, Securities, Investment Property (as such term is defined in the UCC), Security Entitlements (as such term is defined in the UCC), checks, money orders and other items of value now or hereafter that are required to be, or that are, paid, deposited, credited or held (whether for collection, provisionally or otherwise) in or with respect to any Deposit Account or otherwise in the possession or under the control of, or in transit to, the Collateral Agent or the Depositary Bank for credit or with respect to any Deposit Account and all interest accumulated thereon; and (d) all Proceeds (as such term is defined in the UCC) of any or all of the foregoing. The term "Collateral" shall not include any amounts distributed to CEA pursuant to Section 6.2(v). "Collateral Agent" has the meaning given to such term in the Preamble hereof. "Control" has the meaning given to such term in Section 9-104 of the UCC. "Control Agreements" means the Account Control Agreement, dated as of even date herewith, among the Depositary Bank, CEA and Collateral Agent and any other agreements entered into among CEA and Depositary Bank which shall designate the Deposit Accounts as blocked accounts under the Control of Collateral Agent, for the benefit of Secured Creditors, as 2 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 provided in the UCC, as each such agreement may be amended, supplemented, restated or replaced from time to time. "Credit Rating" means for a Qualified Institution the respective ratings then assigned to such entity's unsecured, senior long-term debt or deposit obligations (not supported by third party credit enhancement) by S&P, Moody's or other specified rating agency or agencies or, if such entity does not have a rating for its unsecured, senior long-term debt or deposit obligations, then the rating assigned to such entity as its "corporate credit rating" by S&P. "Customer" means any customer of CEA who purchases Product from CEA but is invoiced by SDG&E, and any other obligor(s) responsible for payment of a Receivable. "Deposit Accounts" means the Lockbox Account, together with any other Deposit Account or Securities Account (as such terms are defined in the UCC) from time to time pledged by CEA to Collateral Agent, for the benefit of Secured Creditors, to secure the Obligations. "Depositary Bank" means River City Bank, a California corporation, in its capacity as depositary bank, and its successors and permitted assigns. "Direction Letter" means that certain letter dated as of the date of this Agreement in the form attached at Exhibit B, a copy of which has been delivered to the Collateral Agent, from CEA to SDG&E pursuant to which CEA has directed SDG&E to remit all of the Proceeds on the Receivables collected by SDG&E from Customers to the Lockbox Account specified therein for application to the Obligations, unless and until both Collateral Agent, at the direction of the Required Secured Creditors, and • CEA jointly instruct SDG&E to terminate or change such direction and any written amendments, modifications, restatements, extensions or supplements thereto or replacements thereof and any similar letter or written direction provided to SDG&E in accordance herewith. "Discharge Date" means that date on which: (a) any and all outstanding Obligations under the Transaction Agreements have been fully satisfied, and (b) there are no continuing obligations by CEA under any Transaction Agreements (other than for any provisions for contingent or inchoate obligations which are intended to survive the termination of the Transaction Agreements). "Distribution Date" means the twenty-third (23K1) day of each month. "Distribution Date Certificate" means a certificate substantially in the form of Exhibit A hereto itemizing each of the payments to be remitted under Section 6.2, submitted by CEA to Collateral Agent in accordance with Section 6.3. "Event of Default" has the meaning set forth in the applicable Master Agreement or Power Purchase Agreement. "Intercreditor Agreement" means the Intercreditor and Collateral Agency Agreement, dated as of even date herewith, among Collateral Agent, the Secured Creditors from time to time party thereto and CEA, as amended, supplemented, restated or replaced from time to time in accordance with the terms therein. 3 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 "Letter of Credit" means one or more irrevocable, transferable standby letters of credit, in a form acceptable to the PPA Providers and issued by a Qualified Institution. "Lien" means any mortgage, pledge, hypothecation, deposit arrangement, encumbrance, lien (statutory or other), assignment, charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any sale governed by Article 9 of the UCC, any conditional sale or title retention agreement, or any capital lease having substantially the same economic effect as any of the foregoing). "Lockbox Account" means the deposit account no. ****** , which is maintained in the name of CEA and is under the Control of Collateral Agent, for the benefit of the Secured Creditors, at Depositary Bank, and any replacement account, in each case, pursuant to the Lockbox Account Control Agreement. "Lockbox Account Control Agreement" means the Account Control Agreement, dated as of even date herewith, among Depositary Bank, CEA and Collateral Agent and any other agreements entered into among Depositary Bank, CEA and Collateral Agent which shall designate the Lockbox Account as a blocked account under the Control of Collateral Agent, for the benefit of Secured Creditors, as provided in the UCC, as each such agreement may be amended, supplemented, restated or replaced from time to time in accordance with its terms. "Master Agreements" means agreements between CEA and a PPA Provider, pursuant to the Master Power Purchase and Sale Agreement published by the Edison Electric Institute and the National Energy Marketers Association (version 2.1 dated 4/25/00), together with the exhibits, schedules, and written supplements thereto, under which a PPA Provider will sell Product to CEA, from time to time under transactions and confirmations (including confirmations entered into after the date hereof) entered into pursuant to such agreement, including any written amendments, modifications, restatements, extensions or supplements thereto or replacements thereof. "Moody's" means Moody's Investor Services, Inc., or its successor. "Obligations" means all of the obligations and liabilities of CEA under the Transaction Agreements to each PPA Provider, whether direct or indirect, joint or several, absolute or contingent, due or to become due, now existing or hereinafter arising under or in respect of one or more of the Transaction Agreements, including all payments, fees, purchases, mark-to-market exposure, commitments for reimbursement, indemnifications, interest, damages and Termination Payments, if any. The term "Obligations" also includes all of CEA's other present and future obligations to each PPA Provider under the Transaction Agreements entered into by CEA, including the repayment of (a) any amounts that Collateral Agent (or a PPA Provider) may advance or spend for the maintenance or preservation of the Collateral and (b) any other expenditure that Collateral Agent or PPA Provider may make under the provisions of the Transaction Agreements for the benefit of CEA. For the avoidance of doubt, the term "Obligations" includes any of the foregoing that arises after the filing of a petition by or against CEA under any bankruptcy or insolvency statute, even if the Obligations do not accrue because of any statutory automatic stay or otherwise. 4 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 "Person" means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, or a government or agency or political subdivision thereof (including, without limitations, a city or California joint powers authority). "Power Purchase Agreement" means each agreement, including the Master Agreements, together with the exhibits, schedules, transactions, confirmations (including confirmations entered into after the date hereof), and any written amendments, modifications, restatements, extensions or supplements thereto or replacements thereof, pursuant to which a PPA Provider sells the Product to CEA, as amended, modified, supplemented, restated, extended or replaced from time to time. "PPA Provider" means each seller of Product under a Power Purchase Agreement that is made a party to the Intercreditor Agreement, and its respective successors and assigns. "Product" means any of the following: energy, renewable energy attributes, capacity attributes, resource adequacy benefits, or any other similar or related products contemplated in the Power Purchase Agreements. "Qualified Institution" means a commercial bank organized under the laws of the United States or a political subdivision thereof having at the applicable time (a) a Credit Rating of (i) A- or better from Standard & Poor's, or (ii) A3 or better from Moody's, or (iii) if such bank has a Credit Rating at such time from both Standard & Poor's and Moody's, A- or better from Standard & Poor's and A3 or better from Moody's and (b) assets of at least Ten Billion Dollars ($10,000,000,000). "Receivable" means an Account evidencing CEA's rights to payment for Product, billed in an invoice sent to a Customer by SDG&E, together with all late fees and other fees which SDG&E and CEA agree are to be charged in such invoice to the Customer by SDG&E on behalf of CEA. "Regular Charges" means, as of any date of determination, amounts then due and owing to such PPA Provider for the Product delivered by such PPA Provider, without giving effect to any Supplemental Payment owing to such PPA Provider. "Regular Sharing Percentage" means, as of any date of determination, with respect to each PPA Provider as calculated by CEA in a commercially reasonable manner, the percentage equivalent of a fraction, (i) the numerator of which is the amount of the Regular Charges due and owing to such PPA Provider, as of such date, and (ii) the denominator of which is the amount of the Regular Charges due and owing to all PPA Providers, as of such date. "Required Secured Creditors" has the meaning given to such term in the Intercreditor Agreement. "Reserve Amount" means an amount of One Hundred Thousand Dollars ($100,000). If CEA is not subject to an Event of Default, and provides confirmation that it is not subject to an Event of Default to Collateral Agent in writing, the total Reserve Amount shall be reduced by 20% annually, upon the annual anniversary of the date on which this Agreement was entered into (or next Business Day if the anniversary date is not a Business Day). 5 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 "Secured Creditors" means each PPA Provider party to the Intercreditor Agreement and their respective successors and assigns. "Standard & Poor's" means S&P Global Ratings, or its successor. "Supplemental Payment" means, as of any date of determination, all Obligations owing by CEA to each PPA Provider, excluding, however, the Regular Charges owed to such PPA Provider. Supplemental Payments include, but are not limited to, all out-of-pocket losses such as indemnity claims arising under the Transaction Agreements to the extent such losses were incurred by such PPA Provider, all late payment charges due under a Power Purchase Agreement, and all Obligations arising upon a default or Termination Event, such as Termination Payments. "Supplemental Sharing Percentage" means, as of any date of determination, with respect to each PPA Provider, the percentage equivalent of a fraction, (y) the numerator of which is the outstanding amount of the Supplemental Payments due and owing to such PPA Provider, as of such date, and (z) the denominator of which is the sum of the outstanding amount of the Supplemental Payments due and owing to all PPA Providers, as of such date. "Termination Event" means, with respect to any Power Purchase Agreement, the termination of Transactions and/or acceleration of all amounts owing thereunder in accordance with the terms of such Power Purchase Agreement. "Termination Payment" has the meaning given to such term in the Intercreditor Agreement. "Transaction Agreements" means the Master Agreements, any other Power Purchase Agreements, the Control Agreements, the Intercreditor Agreement, this Agreement and all other agreements, instruments or documents to which CEA is a party and which are executed and delivered from time to time in connection with or as security for CEA's obligations under the Master Agreements, any other Power Purchase Agreements and any other Transaction Agreements, as the same may be amended, restated, modified, replaced, extended or supplemented from time to time. "UCC" means the Uniform Commercial Code in effect in the State of California from time to time. 1.2 Certain Uniform Commercial Code Terms As used herein, the terms "Account", "Investment Property", and "Proceeds" have the respective meanings set forth in Article 9 of the UCC. The terms "Security" and "5ecurity Entitlements" have the respective meanings set forth in Article 8 of the UCC. 1.3 Other Interpretive Provisions References to "Sections" shall be to Sections of this Agreement unless otherwise specifically provided. For purposes hereof, "including" is not limiting and "or" is not exclusive. All capitalized terms defined in the UCC and not otherwise defined herein or in the Security Agreement shall have the respective meanings provided for by the UCC. Any of the terms defined in this Agreement may, unless the context otherwise requires, be used in the singular or the plural 6 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 depending on the reference. References to any instrument, agreement or document shall include such instrument, agreement or document as supplemented, modified, amended or restated from time to time to the extent permitted by this Agreement. References to any Person include the successors and permitted assigns of such Person. References to any statute, act or regulation shall include its related current version and all amendments and any successor statutes, acts and regulations. References to any statute or act, without additional reference, shall be deemed to refer to federal statutes and acts of the United States. References to any agreement, instrument or document shall include all schedules, exhibits, annexes and other attachments thereto. 2. GRANT OF SECURITY INTEREST As collateral security for the payment and performance in full of the Obligations when due, whether at stated maturity, by acceleration or otherwise, CEA hereby assigns, pledges and grants to Collateral Agent, for the benefit of the Secured Creditors, a first priority continuing security interest in and continuing lien on all of CEA's right, title and interest in and to the Collateral, including the following: (a)the prompt and complete payment, when due and payable, of all Obligations; and (b)the timely performance and observance by CEA of all covenants, obligations and conditions contained in the Transaction Agreements; and (c)without limiting the generality of the foregoing and to the fullest extent permitted under Applicable Law, the payment of all amounts, including interest which constitute part of the Obligations and would be owed by CEA to the Secured Creditors under the Transaction Agreements but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving CEA. The collateral assignment evidenced by this Agreement is a continuing one and is irrevocable by CEA so long as any of the Obligations are outstanding. 3. REPRESENTATIONS AND WARRANTIES CEA represents and warrants to Collateral Agent that: 3.1 Title It is the sole beneficial owner of the Collateral and such Collateral is free and clear of all liens, except liens in favor of Collateral Agent created hereunder. 3.2 Names Etc. As of the date hereof, the full and correct legal name, type of organization, jurisdiction of organization, mailing address, and principal place of business is as follows: Clean Energy Alliance, a California joint powers authority, 1200 Carlsbad Village Dr., Carlsbad, CA 92008. 7 ceA SECURITY ACREEmENT CEA DRAFT 5 JANUARY 2021 3.3 Changes in Circumstances CEA has not: (a) within the period of four (4) months prior to the date hereof, changed its location (as defined in Article 9 of the UCC); (b) within the period of five (5) years prior to the date hereof, changed its name; or (c) within the period of four (4) months prior to the date hereof, become a "new debtor" (as defined in Article 9 of the UCC) with respect to a currently effective security agreement previously entered into with any other Person. 3.4 Security Interests The Liens granted by this Agreement have attached and constitute a perfected first priority continuing security interest in the Collateral. CEA owns good and marketable title to the Collateral free and clear of all Liens other than such Liens established under this Agreement, and neither the Collateral nor any interest in the Collateral has been transferred to any other Person. CEA has full right, power and authority to grant a first-priority security interest in the Collateral to Collateral Agent in the manner provided in this Agreement, free and clear of any other Liens, adverse claims and options and without the consent of any other person or entity or if consent is required, such consent has been obtained. No other Lien, adverse claim or option has been created by CEA or is known by CEA to exist with respect to the Collateral. At the time the security interest in favor of Collateral Agent attaches, good and indefeasible title to all after-acquired property included within the Collateral, free and clear of any other Liens, adverse claims or options shall be vested in CEA. All consents for the assignment of Collateral to Collateral Agent, if any, required to be obtained by CEA have been obtained. This Agreement, the Intercmditor Agreement, and the Lockbox Account Control Agreement constitute legal, valid and binding obligations of CEA enforceable against it in accordance with their terms except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors' rights generally or by equitable principles relating to enforceability. 4. COVENANTS CEA hereby stipulates and agrees with the Collateral Agent as follows: 4.1 Perfection by Control CEA shall not be permitted to withdraw funds from the Deposit Accounts until the Discharge Date and this Agreement has been terminated. Collateral Agent shall have the exclusive authority to withdraw, or (other than as set forth herein) direct the withdrawal of, funds from the Deposit Accounts. The Control Agreement for each Deposit Account shall give the Collateral Agent the sole power to direct Depositary Bank regarding the Deposit Account, and thus Collateral Agent shall Control the Deposit Accounts within the meaning of the UCC. Collateral Agent shall make distributions from the Deposit Accounts only in accordance with Section 6 of this Agreement. 4.2 Further Assurances Upon the request of Collateral Agent or the Required Secured Creditors, CEA shall promptly from time to time give, execute, deliver, file, record, authorize or obtain all such financing statements, continuation statements, notices, documents, agreements or other papers as 8 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 may be necessary in the judgment of Collateral Agent to create, preserve, perfect, maintain the perfection of or validate the security interest granted pursuant hereto or to enable Collateral Agent to exercise and enforce its rights hereunder with respect to such security interest, and without limiting the foregoing, shall: (a)take such other action as Collateral Agent may reasonably deem necessary or appropriate to duly record or otherwise perfect the security interest created hereunder in the Collateral; (b)promptly from time to time enter into such Control Agreements, each in form and substance reasonably acceptable to Collateral Agent, as may be required to perfect the security interest created hereby; (c)keep full and accurate books and records relating to the Collateral, and stamp or otherwise mark such books and records in such manner as Collateral Agent may reasonably require in order to reflect the security interests granted by this Agreement; and (d)permit representatives of Collateral Agent or its designees, upon reasonable notice, at any time during normal business hours to inspect and make abstracts from its books and records pertaining to the Collateral, and to be present at CEA's places of business to receive copies of communications and remittances relating to the Collateral, and forward copies of any notices or communications received by CEA with respect to the Collateral, all in such manner as Collateral Agent may reasonably require. 4.3 No Other Liens CEA is and shall be the owner of or have other transferable rights in the Collateral free from any right or claim of any other Person or any other Lien and CEA shall defend the same against all claims and demands of all Persons at any time claiming the same or any interest therein adverse to Collateral Agent. CEA shall not (a) grant, or permit to be granted, any Lien with respect to any of the Collateral in which Collateral Agent is not named as the sole secured party, (b) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to any of the Collateral in which Collateral Agent is not named as the sole secured party, or (c) cause or permit any Person other than Collateral Agent to have Control of any Deposit Account constituting part of the Collateral. 4.4 Locations; Names, Etc. Without at least thirty (30) days' prior written notice to the Collateral Agent, CEA shall not: (a) change its location (as defined in Article 9 of the UCC), (b) change its name from the name shown as its current legal name in Section 3 of this Agreement, or (c) agree to or authorize any modification of the terms of any item of the Collateral if the effect thereof would be to result in a loss of perfection of, or diminution of priority for, the security interests created hereunder in such item of Collateral, or the loss of control (within the meaning of Article 9 of the UCC) by Collateral Agent over such item of Collateral. 9 CEA SECURITY AGREMENT CEA DRAFT 5 JANUARY 2021 4.5 Perfection and Recordation CEA authorizes Collateral Agent to file Uniform Commercial Code financing statements describing the Collateral (provided that no such description shall be deemed to modify the description of Collateral set forth in Section 2). Collateral Agent, in accordance with Section 4.2 hereof, hereby requests and instructs CEA to, and CEA hereby agrees, at its sole cost and expense to, prepare and file such Uniform Commercial Code financing and continuation statements describing the Collateral as may be necessary to perfect and continue the security interest granted herein. CEA shall deliver to the Collateral Agent a file stamped copy of all such filings, which the Collateral Agent shall make available to any PPA Provider upon request. 5. REMITTANCE OF COLLECTIONS TO COLLATERAL AGENT 5.1 Irrevocable Direction CEA has, pursuant to the Direction Letter, irrevocably instructed SDG&E to remit to Collateral Agent all payments due or to become due in respect of the Receivables unless and until both Collateral Agent, at the direction of the Required Secured Creditors, and CEA direct otherwise in writing. The Collateral shall be collected by Collateral Agent from SDG&E pursuant to the Direction Letter. CEA shall periodically take such additional measures as may be commercially reasonable to cause SDG&E or Customers to make all payments due to CEA into the Lockbox Account designated in the Direction Letter. All invoices issued by or on behalf of CEA shall direct payment into the Lockbox Account designated in the Direction Letter. CEA shall provide Collateral Agent with such proof of compliance with this Section 5.1 as Collateral Agent may reasonably request from time to time. Without the prior written consent of Collateral Agent (acting at the written direction of the Required Secured Creditors), CEA shall not (a) terminate, amend, revoke or modify such payment instructions to SDG&E or Customers or (b) direct or cause, directly or indirectly, SDG&E or any Customer to make any payments except in accordance with such payment instructions. The parties agree that if any such payments, or any other Proceeds of Collateral, are received by CEA, (i) they shall be held in trust by CEA for the benefit of the Collateral Agent, (ii) CEA shall as promptly as possible remit or deliver same to Collateral Agent for application as provided herein, (iii) CEA shall take such commercially reasonable steps as necessary to require such Customer or SDG&E to make any future remittances into the Lockbox Account designated in the Direction Letter and (iv) such activity shall be reported promptly to Collateral Agent following CEA' s receipt of such funds. Collateral Agent thus has the right to all collections on the Collateral remitted to it by SDG&E until the Discharge Date. 5.2 Application of Proceeds The Proceeds of any collection or realization of all or any part of the Collateral shall be applied by Collateral Agent as provided for in Section 6 below. 5.3 Deficiency If the Proceeds of the collection of the Collateral are insufficient to pay in full the Obligations, CEA remains liable to Collateral Agent and Secured Creditors for any deficiency. 10 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 5.4 Attorney-in-Fact Collateral Agent is hereby appointed the attorney-in-fact of CEA to receive, endorse and collect all checks made payable to the order of CEA representing any payment or other distribution in respect of the Collateral. 6. ESTABLISHMENT OF AND DISTRIBUTIONS FROM DEPOSIT ACCOUNTS 6.1 Establishment of Deposit Accounts CEA shall establish the Deposit Accounts in CEA's name at Depositary Bank and shall fund the Reserve Amount into the Lockbox Account. The deposits into the Deposit Accounts and all interest accumulated thereon shall be held and disbursed by the Depositary Bank in accordance with the terms and conditions of the Control Agreements and this Agreement. The Deposit Accounts are subject to the sole dominion, control and discretion of Collateral Agent until the Discharge Date. Until the Discharge Date, neither CEA nor any person or entity claiming on behalf of or through CEA shall have any right or authority, whether express or implied, to make use of, withdraw or transfer any funds or to give instructions with respect to disbursement of the Accounts other than Collateral Agent. Until the Discharge Date, subject to Section 6.2, Collateral Agent shall be entitled to exercise any and all rights in respect of or in connection with the Deposit Accounts including (i) the right to specify the amount of payments to be made from the Deposit Accounts, (ii) when such payments are to be made out of the Deposit Accounts and (iii) the right to withdraw funds for the payment of Obligations which are due and payable from the Deposit Accounts. Collateral Agent shall accept all funds remitted to the Deposit Accounts under this Agreement, and credit such funds as provided for in Section 6.2 below. 6.2 Priority of Distributions of Collateral Proceeds of Collateral shall be allocated in accordance with this Section 6.2. On each Distribution Date, Collateral Agent shall distribute all funds in the Lockbox Account or otherwise received on the Collateral in accordance with the following priority: (i)first, to each PPA Provider in payment of any Regular Charges, according to its Regular Sharing Percentage; (ii)second, to each PPA Provider in payment of any Supplemental Pa) inent owing to it according to its Supplemental Sharing Percentage; (iii)third, to the Collateral Agent (as such and in its individual capacity) in respect of its reasonable out-of-pocket fees and expenses incurred under this Agreement, the Intercreditor Agreement or the Control Agreements that have been invoiced to CEA, including, without limitation, payment of expenses incurred by the Collateral Agent which indemnity shall include the reasonable out of pocket attorneys' fees of outside counsel to the Collateral Agent; and (iv)fourth, unless an Event of Default shall exist as to CEA, the balance, if any, after retention in the Lockbox Account of the Reserve Amount, shall be returned to CEA free and clear of the lien of this Agreement, provided, however, that if the Collateral Agent has been notified of a dispute in accordance with Section 6.6, the portion of the balance, if any, up to such I l CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 disputed amount shall be retained in the Lockbox Account and CEA shall only receive the amount of the balance, if any, that is in excess of such disputed amount until such time as the Collateral Agent receives written notice from the relevant PPA Provider and CEA that the dispute pursuant to Section 6.6 has been resolved. Collateral Agent shall rely, and shall be hilly protected in relying on a Distribution Date Certificate in making the above calculations, without any requirement that Collateral Agent verify the accuracy of such Distribution Date Certificate, subject to revision in the event of disputes resolved under Section 6.6. 6.3 Distribution Date Certificate On or before three (3) Business Days before each Distribution Date, CEA shall remit, or cause to be remitted, to Collateral Agent and each PPA Provider a certificate in substantially the form of Exhibit A hereto (the "Distribution Date Certificate") itemizing each of the payments to be remitted under Section 6.2 above. The PPA Providers may share such Distribution Date Certificates with their respective accountants, legal counsel and other advisors. 6.4 Replenishing the Reserve Amount; No Waiver Subject to Section 6.5, if at any time the balance in the Deposit Accounts is less than the Reserve Amount, then (a) the Collateral Agent shall within two (2) Business Days thereafter provide CEA with written notice thereof, with a copy to the Secured Creditors and (b) CEA shall deposit such shortfall amount into the Deposit Accounts not later than ten (10) Business Days after its receipt of such notice from Collateral Agent. The Collateral Agent shall have no duty or obligation to monitor or oversee CEA's replenishment of the Reserve Amount, and shall have no duty or obligation under this Section 6.4 other than to deliver the required written notice to each Secured Creditor in accordance with Section 6.10 of the Intercreditor Agreement. Nothing contained herein shall impair or otherwise limit CEA's obligations to timely make the payments required pursuant to any of the Transaction Agreements. It is expressly understood and agreed that the Collateral Agent shall have no liability for its failure to deliver any amounts required to be delivered by it pursuant to this Agreement or any other Transaction Agreement to the extent that such amounts are not then available in the Deposit Accounts. 6.5 Release of Reserve Amount Except following and during the continuance of an Event of Default, if CEA provides the Collateral Agent with a Letter of Credit for the benefit of the PPA Providers in an amount equal to the Reserve Amount, and all Secured Creditors confirm in writing to Collateral Agent that no such Event of Default exists or is continuing CEA may request in writing and, upon receipt of such request, Collateral Agent shall instruct the Depositary Bank to release and distribute the Reserve Amount to CEA. All of the fees, costs and expenses associated with the Letter of Credit shall be borne by CEA. CEA shall thereafter cause the Letter of Credit to be maintained in full force and effect through the Discharge Date. If at any time the issuer of the Letter of Credit is no longer a Qualified Institution, then CEA shall, within five (5) Business Days of such occurrence, either (a) provide Collateral Agent with a replacement Letter of Credit for the benefit of the PPA Providers 12 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 issued by a Qualified Institution in an amount equal to the Reserve Amount or (b) fund the applicable Reserve Amount into the Lockbox Account. 6.6 Disputes If a PPA Provider advises CEA and Collateral Agent in writing that the calculations in any Distribution Date Certificate are in its opinion materially incorrect, then CEA and such PPA Provider shall attempt to resolve the discrepancy in good faith. If such parties are able to reach an agreement with respect to such discrepancy in advance of the relevant Distribution Date, CEA shall remit to Collateral Agent and each PPA Provider a revised Distribution Date Certificate reflecting the agreed upon amounts, and the Collateral Agent shall disburse funds in accordance with such revised Distribution Date Certificate on the applicable Distribution Date, provided, however, that the Collateral Agent shall have no liability whatsoever for any failure to disburse funds in accordance with a revised Distribution Date Certificate to the extent that it has not received such revised Distribution Date Certificate sufficiently in advance of the scheduled distribution. If such parties are unable to agree, they shall resolve such dispute in accordance with the dispute resolution provision of the Power Purchase Agreement between such PPA Provider and CEA. In the interim, the Distribution Date Certificate originally submitted by CEA shall be relied upon by Collateral Agent for purposes of making distributions from the Lockbox Account or any other Deposit Account of all undisputed amounts in accordance with Section 6.2, and the Collateral Agent shall make no distribution in respect of any disputed amount until such time as it has received a revised Distribution Date Certificate. Notwithstanding the above, no dispute shall prevent any other PPA Provider from receiving its distributions from the Lockbox Account, even if such distributions would result in a shortfall of the disputed amount. However, CEA shall not be entitled to receive any funds if such distribution to CEA would result in a shortfall of the disputed amount. 6.7 Earnings on Deposit Accounts CEA shall establish the Deposit Accounts as non-interest bearing accounts. 6.8 Rights and Remedies If an Event of Default shall have occurred and is continuing, Collateral Agent, without any other notice to or demand upon CEA, shall have in any jurisdiction in which enforcement hereof is sought, in addition to all other rights and remedies, the rights and remedies of a secured party under the UCC and any additional rights and remedies as may be provided to a secured party in any jurisdiction in which Collateral is located; it being understood and agreed that the Collateral Agent would be exercising any such rights and remedies in its capacity as collateral agent for the benefit of the PPA Providers, as Secured Creditors. In addition, CEA HEREBY WAIVES ANY AND ALL RIGHTS THAT IT MAY HAVE TO A JUDICIAL HEARING IN ADVANCE OF THE ENFORCEMENT OF COLLATERAL AGENT'S RIGHTS AND REMEDIES HEREUNDER, INCLUDING ITS RIGHT FOLLOWING AN EVENT OF DEFAULT TO TAKE IMMEDIATE POSSESSION OF THE COLLATERAL AND TO EXERCISE ITS RIGHTS AND REMEDIES WITH RESPECT THERETO. Collateral Agent shall only act at the written instruction of the Required Secured Creditors in (a) taking any action under this Agreement, the Intercreditor Agreement or any Control Agreements with respect to the Collateral 13 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 following an Event of Default and (b) asserting any claim under this Agreement, the Intercreditor Agreement or any Control Agreements. Notwithstanding the foregoing, if Collateral Agent deems it prudent to take reasonable actions, without the instruction of a Secured Creditor, to protect the Collateral, it may (but shall be under no obligation to) do so and thereafter provide written notice to all the Secured Creditors of such actions, and no provision of this Agreement shall restrict Collateral Agent from exercising such rights and no liability shall be imposed on Collateral Agent for omitting to exercise such rights. 6.9 No Waiver by Collateral Agent Collateral Agent shall not be deemed to have waived any of its rights and remedies in respect of the Obligations or the Collateral unless such waiver shall be made in writing and signed by Collateral Agent (acting at the written direction of the Required Secured Creditors). No delay or omission on the part of Collateral Agent in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on any occasion shall not be construed as a bar to or a waiver of any right or remedy on any future occasion. All rights and remedies of Collateral Agent with respect to the Obligations or the Collateral, whether evidenced hereby or by any other instrument or papers, may be exercised by Collateral Agent (acting at the written direction of the Required Secured Creditors), shall be cumulative and may be exercised singularly, alternatively, successively or concurrently at such time or at such times as Collateral Agent (acting at the written direction of the Required Secured Creditors) deems expedient 6.10 Waivers by CEA To the extent permitted by applicable law, CEA hereby waives demand, notice, protest, notice of acceptance of this Agreement, notice of loans made, credit extended, collateral received or delivered or other action taken in reliance hereon and all other demands and notices of any description. 6.11 Marshalling TO THE EXTENT THAT lIT LAWFULLY MAY, CEA HEREBY AGREES THAT IT WILL NOT INVOKE ANY LAW RELATING TO THE MARSHALLING OF COLLATERAL WHICH MIGHT CAUSE DELAY IN OR IMPEDE THE ENFORCEMENT OF COLLATERAL AGENT'S RIGHTS AND REMEDIES UNDER THIS AGREEMENT OR UNDER ANY OTHER INSTRUMENT CREATING OR EVIDENCING ANY OF THE OBLIGATIONS OR UNDER WHICH ANY OF THE OBLIGATIONS IS OUTSTANDING OR BY WHICH ANY OF THE OBLIGATIONS IS SECURED OR PAYMENT THEREOF IS OTHERWISE ASSURED, AND, TO THE EXTENT THAT IT LAWFULLY MAY, CEA HEREBY IRREVOCABLY WAIVES THE BENEFITS OF ALL SUCH LAWS. 14 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 7. MISCELLANEOUS 7.1 Notices Except as otherwise expressly provided herein, all notices, consents and waivers and other communications made or required to be given pursuant to this Agreement shall be in writing and shall be delivered by hand, mailed by registered or certified mail or prepaid overnight air courier, or by facsimile communications, addressed to the relevant party as provided below their signatures to this Agreement or at such other address for notice as CEA or Collateral Agent shall last have furnished in writing to the Person giving the notice. A notice addressed as provided herein that (i) is delivered by hand or overnight courier is effective upon delivery, (ii) that is sent by facsimile communication is effective if made by confirmed transmission at a telephone number designated as provided herein for such purpose, and (iii) that is sent by registered or certified mail is effective on the earlier of acknowledgement of receipt as shown on the return receipt or three (3) Business Days after mailing. 7.2 No Waiver No failure on the part of the Collateral Agent to exercise, and no course of dealing with respect to, and no delay in exercising, any right or power hereunder shall operate as a waiver thereof. 7.3 Amendments The terms of this Agreement may be waived, altered or amended only by an instrument in writing duly executed by CEA and Collateral Agent. 7.4 Expenses, If CEA fails to do so, Collateral Agent may, upon receipt from the Required Secured Creditors of written direction and such sums as may be necessary in connection therewith, discharge taxes and any other Liens or encumbrance at any time levied or placed on any of the Collateral. CEA agrees to reimburse Collateral Agent on demand for any such expenditures made by Collateral Agent, and the Collateral Agent promptly upon receipt thereof shall remit such reimbursed sums to the Required Secured Creditors. For the avoidance of doubt, it is expressly understood and agreed that the Collateral Agent shall not use or expend its own funds in connection with such taxes, Liens or encumbrances. Collateral Agent shall have no obligation to make any such expenditure nor shall the making thereof be construed as a waiver or cure of any Event of Default. CEA agrees to reimburse Collateral Agent (as such and in its individual capacity) for all reasonable costs and expenses incurred by it (including the reasonable fees and expenses of legal counsel) in connection with (i) the performance by Collateral Agent of its duties under this Agreement, the Intercreditor Agreement or the Control Agreements, (x) protecting, defending or asserting rights and claims of the Collateral Agent in respect of the Collateral, (y) litigation relating to the Collateral, and (z) workout, restructuring or other negotiations or proceedings, and (ii) the enforcement of this Section 7.4, and all such reasonable costs and expenses shall be Obligations entitled to the benefits of the collateral security provided pursuant to Section 2. 15 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 7.5 Duty of Care; Earnings Collateral Agent shall have no duty or obligation with respect to the Collateral except for its contractual obligations under this Agreement, the 1ntercreditor Agreement or the Control Agreements. The Collateral Agent shall have no duty or obligation as to the collection or protection of the Collateral or any income thereon, nor as to the preservation of rights against any Person, beyond the safe custody of any Collateral in the Collateral Agent's possession or control. Without limiting the generality of the foregoing, Collateral Agent shall have no duty (a) other than to instruct CEA as set forth in Section 4.5 hereof, to see to any recording or filing of any financing statement evidencing a security interest in the Collateral, or to see to the maintenance of any such recording or filing, (b) to see to the payment or discharge of any tax, assessment or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Collateral, (c) to confirm or verify the contents of any reports or certificates delivered to Collateral Agent believed by it to be genuine and to have been signed or presented by the proper party or parties, or (d) to ascertain or inquire as to the performance of observance by any other Person of any representations, warranties or covenants. Collateral Agent may require an officer's certificate before acting or refraining from acting, and Collateral Agent shall not be liable for any action it takes or omits to take in good faith in reliance on an officer's certificate. 7.6 Successors and Assigns This Agreement shall be binding upon and inure to the benefit of the respective successors and permitted assigns of CEA, the Secured Creditors, and the Collateral Agent (provided that CEA shall not assign, transfer or delegate its rights or obligations hereunder without the prior written consent of Collateral Agent) and Collateral Agent shall only transfer or assign its rights hereunder in connection with a resignation or removal from its capacity as Collateral Agent in accordance with the terms of the Intercreditor Agreement). This Agreement shall create a continuing security interest in the Collateral and shall remain in full force and effect in accordance with Section 7.12, and be binding upon CEA, its successors and assigns, and inure, together with the rights of Collateral Agent hereunder, to the benefit of the Collateral Agent and its successors, transferees and assigns. 7.7 Counterparts This Agreement and any related amendment or waiver may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, but all of which together shall constitute one instrument. The parties may rely on electronic or scanned signatures as originals. In proving this Agreement it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom enforcement is sought. Delivery of an executed signature page of this Agreement by electronic format (including portable document format (pdf)) shall be the same as delivery of an original executed signature page. 16 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 7.8 GOVERNING LAW; JURISDICTION THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND ENFORCED UNDER, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE. 7.9 WAIVER OF JURY TRIAL EACH PARTY TO TI-US AGREEMENT HEREBY WAIVES ITS. RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. 7.10 CONSENT TO INJUNCTIVE RELIEF WITHOUT LIMITING ANY OTHER RIGHTS OR REMEDIES THAT COLLATERAL AGENT MAY HAVE, CEA ACKNOWLEDGES THAT ITS VIOLATION OF SECTION 5.1 WOULD RESULT IN IRREPARABLE INJURY TO COLLATERAL AGENT AND SECURED CREDITORS FOR WHICH NO ADEQUATE REMEDY AT LAW WOULD BE AVAILABLE. ACCORDINGLY, CEA HEREBY (I) CONSENTS TO THE ENTRY OF AN IMMEDIATE EX-PARTE INJUNCTION, TEMPORARY RESTRAINING ORDER, AND/OR PERMANENT INJUNCTION TO ENFORCE THE PROVISIONS OF SECTION 5.1, IN ADDITION TO ANY OTHER REMEDIES AVAILABLE AT LAW OR IN EQUITY AND (1.0 WAIVES ANY DEFENSE THAT ADEQUATE REMEDIES ARE AVAILABLE AT LAW AND ANY REQUIREMENT THAT A BOND OR ANY OTHER SECURITY BE POSTED IN CONNECTION WITH THE ENTRY OF ANY RESTRAINING ORDER OR INJUNCTION. 7.11 Captions, The captions and section headings appearing herein are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Agreement. 7.12 Termination Unless earlier terminated in writing by the parties hereto, this is a continuing security agreement and the grant of a security interest under this Agreement shall remain in full force and effect and all the rights, powers and remedies of Collateral Agent hereunder shall continue to exist until: (a) the Obligations are paid in full as the same becomes due and payable; (b) the PPA Providers have no further obligation to deliver products or render services (including credit support services) to, or on behalf of, CEA; (c) CEA has no further obligations to the PPA Providers under any of the Transaction Agreements; and (d) the PPA Providers, upon request of CEA, have executed and delivered to each of CEA and the Collateral Agent a written termination statement, and Collateral Agent has reassigned to CEA, without recourse, the Collateral and all rights conveyed hereby and returned possession of the Collateral to CEA. Furthermore, it is contemplated by the parties hereto that there may be times when no Obligations are owing; but notwithstanding such occurrences, unless the PPA Providers have executed a written termination under clause (d) above, this Agreement shall remain valid and shall be in full force and effect as 17 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 to subsequent Obligations, provided Collateral Agent has not executed a written agreement terminating this Agreement in accordance herewith. This Agreement shall continue irrespective of the fact that the liability of any other obligor may have ceased, or irrespective of the validity or enforceability of the Transaction Agreements, to which any other obligor may be a party, and notwithstanding the reorganization or bankruptcy of CEA, or any other event or proceeding affecting CEA or any other obligor. At CEA's request after the PPA Providers have executed and delivered a written termination under clause (d) above, Collateral Agent shall, at CEA's reasonable expense, instruct Depositary Bank to release all assets credited to the Deposit Accounts to CEA, and Collateral Agent shall also execute such other documentation as shall be reasonably requested by CEA to effect the termination and release of the liens on the Collateral, including notice to SDG&E that the Direction Letter is terminated. 7.13 Severabilitv The provisions of this Agreement are intended to be severable. If for any reason any of the provisions of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions thereof in any jurisdiction. 7.14 Waiver of Immunities CEA warrants and covenants that with respect to its contractual obligations hereunder and performance thereof, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (a) suit, (b) jurisdiction of court (including a court located outside the jurisdiction of its organization), (c) relief by way of injunction, order for specific performance or recovery of property, (d) attachment of assets, or (e) execution or enforcement of any judgment. To the extent that CEA may be or becomes entitled to claim, with respect to itself and/or its revenues and assets (irrespective of their use or intended use), any immunity on the grounds of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of injunction or order for specific performance or recovery of property, (iv) attachment of its assets (whether before or after judgment) and/or (v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any legal proceedings in the courts of any jurisdiction, CEA IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUCH IMMUNITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS AND IRREVOCABLY AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT IT WILL NOT CLAIM ANY SUCH IMMUNITY IN ANY PROCEEDINGS; PROVIDED, HOWEVER THAT NOTHING IN THIS AGREEMENT SHALL WAIVE THE OBLIGATIONS AND/OR RIGHTS SET FORTH IN THE CALIFORNIA TORT CLAIMS ACT (GOVERNMENT CODE SECTION 810 ET SEQ.). 7.15 Disclosure of Information CEA hereby consents to the disclosure by any PPA Provider or Collateral Agent of any information provided by or relating to CEA as may be required or reasonably necessary for the administration of this Agreement, the Intercreditor Agreement or the Control Agreements, or the 18 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 enforcement or protection of any of the rights of the Collateral Agent or the PPA Providers hereunder. [Signatures on following page] 19 CFA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their authorized representative as of the Effective Date. CLEAN ENERGY ALLIANCE, a California joint powers authority, as Pledgor By: Name: Title: Notice Address: Clean Energy Alliance Attention: Barbara Boswell, Interim CEA 1200 Carlsbad Village Dr. Carlsbad, CA 92008 Email: ceotheeleanenergyalliance.org RIVER CITY BANK not in its individual capacity, but solely as Collateral Agent By: Name: Title: Notice Address: River City Bank 2485 Natomas Park Dr. Sacramento, CA 95833 Attention: Cash Management Fax: 916-567-2799 CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 EXHIBIT A FORM OF DISTRIBUTION DATE CERTIFICATE The undersigned, [INSERT NAME], the [INSERT NAME OF OFFICE HELD] of Clean Energy Alliance, a California joint powers authority ("CEA"), hereby certifies, on behalf of CEA in such capacity and not in its individual capacity, with reference to that certain Security Agreement dated as of , 2021 (capitalized terms used herein shall have the same meaning as set forth in the Security Agreement) between CEA and River City Bank, as collateral agent ("Collateral Agent"), to Collateral Agent as follows: This certificate is being delivered to Collateral Agent on or before the date that is three (3) Business Days before the Distribution Date of , 2021]. No Event of Default exists as of the date of this certificate and CEA does not anticipate that an Event of Default will exist as of the Distribution Date set forth in paragraph 1 above. The funds that are on deposit in the Lockbox Account shall be disbursed on the Distribution Date as follows: 1.[To [INSERT NAME OF APPLICABLE PPA PROVIDER], for payment of its Regular Charges, an aggregate amount equal to r Dollars ($ )]; [Include this paragraph for each PPA Provider] 2.[To [INSERT NAME OF APPLICABLE PPA PROVIDER], for payment of any Supplemental Payment owing in an aggregate amount equal to r Dollars ($ )]; [Include this paragraph for each PPA Provider] 3.To Collateral Agent, in respect of Collateral Agent's reasonable out-of-pocket fees and expenses incurred under the Security Agreement or the Intercreditor Agreement that have been invoiced to CEA, an aggregate amount equal to [ Dollars ($ )]; and 4.The remaining funds, if any, that are on deposit, after retention of the Reserve Amount are to be disbursed to CEA into the account designated by CEA. I hereby certify, on behalf of CEA and not in my individual capacity, that this Distribution Date Certificate is true and complete in all material respects. By: Name: Title: Date: CEA SECURITY AC-REEMENT CEA DRAFT 5 JANUARY 2021 EXHIBIT B FORM OF DIRECTION LETTER Clean Energy Alliance 1200 Carlsbad Village Dr., Carlsbad, CA 92008 VIA EMAIL AND U.S. MAIL San Diego Gas & Electric Company Email: , 2021 RE: CEA Direction Letter Attached please find the Accounts Payable Electronic Funds Transfer Enrollment Form, dated as of , 2021 (the "Payment Instruction"), executed by Clean Energy Alliance, a California joint powers authority ("CEA") as respecting its energy program and instructing SDG&E to initiate credit entries to account number , which account is held at River City Bank, a California corporation. By the Payment Instruction and this Direction Letter, we are hereby providing SDG&E with written notice that we wish SDG&E to initiate credit entries to the above-referenced account. The payment instructions set forth in this letter may only be amended upon the joint instruction of CEA and River City Bank, not in its individual capacity, but solely as collateral agent. If you have any questions regarding the Payment Instruction or this Direction Letter, please contact mc, , at ( ) Very truly yours, CLEAN ENERGY ALLIANCE, a California joint powers authority By: Name: Title: cc: Stephen Hall, Hall Energy Law PC CEA SECURITY AGREEMENT CEA DRAFT 5 JANUARY 2021 ACCOUNT CONTROL AGREEMENT This ACCOUNT CONTROL AGREEMENT (this "Agreement") dated as of , 2021 (the "Effective Date"), is entered into by and among (i) River City Bank, a California corporation (the "Account Bank"), (ii) Clean Energy Alliance, a California joint powers authority ("CEA"), and (iii) River City Bank, a California corporation, not in its individual capacity, but solely as collateral agent (the "Secured Party"). RECITALS: A.CEA has pledged to the Secured Party (for the benefit of the PPA Providers (as defined in the Security Agreement), as Secured Creditors, all of the Collateral (as defined in the Security Agreement), pursuant to that certain Security Agreement between CEA and Secured Party dated as of even date herewith (the "Security Agreement"); B.CEA has directed San Diego Gas & Electric Company ("SDG&E") to remit all present and future collections on accounts receivable now or hereafter billed by SDG&E and owed by CEA's customers to CEA, for remittance to the Lockbox Account (as defined in the Security Agreement) maintained by Secured Party; C.Secured Patty shall have, for the benefit of the Secured Creditors (as defined in the Security Agreement), a first priority continuing security interest in and lien on such Collateral pledged to Secured Party for the benefit of the Secured Creditors, as provided in the Security Agreement; and D.CEA intends that Secured Party shall distribute the Collateral deposited into the Lockbox Account in accordance with the provisions of the Security Agreement. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter set forth, the parties hereto agree as follows: Unless otherwise defined herein, all capitalized terms used herein and defined in the Security Agreement shall be used herein as therein defined. Reference to singular terms shall include the plural and vice versa. 1. THE ACCOUNTS CEA hereby requests that Account Bank open, and Account Bank hereby confirms that it has opened, account number (a non-interest-bearing deposit account held in the name of CEA) which will be subject to, and administered in accordance with, the terms of this Agreement (the "Lockbox Account"). The parties hereto agree that the Lockbox Account shall be funded solely by electronic transfers of immediately available funds and that Account Bank shall not be required to accept any other items for deposit into the Lockbox Account. All amounts payable for deposit into the Lockbox Account shall be paid to Account Bank at the following accounts: Bank: River City Bank CEA ACCOUNT CONTROL AC-REEMENT CEA DRAFT 5 JANUARY 2021 ABA#: 121133416 Account No.: 2, CONTROL OF THE ACCOUNTS / PAYMENT MECHANICS (a)The Lockbox Account shall be maintained by Account Bank in the name of CEA and shall be under the sole dominion and control of Secured Party. Account Bank agrees that it will comply with written instructions originated by Secured Party directing disposition of the funds in the Lockbox Account without further consent by CEA or otherwise. (b)Account Bank (i) shall disburse funds held in the Lockbox Account as instructed by Secured Party and (ii) agrees that, except as otherwise expressly provided herein, CEA will not have access to the funds in the Lockbox Account and that the Account Bank will not agree with CEA or any other party (other than the Secured Party) to comply vvith any instructions for the disposition of the funds in the Lockbox Account originated by CEA or such other party. 3. STATEMENTS AND OTHER INFORMATION (a)Account Bank shall provide Secured Party with copies of the regular monthly bank statements of the Lockbox Account at such times such statements are provided to CEA and such other information relating to the Lockbox Account as shall reasonably be requested by Secured Party or CEA. Account Bank shall also deliver a copy of all notices and statements required to be sent by it to CEA pursuant to any agreement governing or related to the Lockbox Account, to which Account Bank is a party, to Secured Party at such times such notices and statements are provided to CEA. Except as otherwise required by law, Account Bank will use reasonable efforts promptly to notify Secured Party and CEA if Account Bank receives a notice that any other person claims that it has an interest in the Lockbox Account. As of the date of this Agreement, Account Bank confirms that it has not received notice that any other person has any interest in the Lockbox Account. (b)Account Bank hereby confirms that (i) the Lockbox Account has been established and is maintained with Account Bank on its books and records, (ii) Account Bank is a bank within the meaning of Section 9-102(a)(8) of the Uniform Commercial Code of California, (iii) the Lockbox Account is a deposit account within the meaning of Section 9-102(a)(29) of the Uniform Commercial Code of California, and (iv) the jurisdiction of Account Bank for the purposes of Article 9 of the Uniform Commercial Code of California is California. 4. FEES CEA agrees to pay on demand all usual and customary service charges, transfer fees and account maintenance fees of Account Bank in connection with the Lockbox Account in accordance with the terms of the separate fee agreement entered into by CEA and Account Bank. 5. SET-OFF 2 CEA ACCOUNT CONTROL AGREEMENT CEA DRAFT 5 JANUARY 2021 Account Bank hereby agrees that Account Bank will not exercise or claim any right of set- off or banker's lien against the Lockbox Account. As of the date of this Agreement, Account Bank does not know of any claim to or interest in the Lockbox Account, except for claims and interests of the parties hereto. All of Account Bank's present and future rights against the Lockbox Account are subordinate to Secured Party's security interest therein held on behalf of the Secured Creditors. 6. ACCOUNT BANK The acceptance by Account Bank of its duties under this Agreement is subject to the following terms and conditions, which the parties to this Agreement hereby agree shall govern and control with respect to all of Account Bank's rights, duties, liabilities and immunities: (a)Account Bank shall be protected in acting upon any written notice, certificate, resolution, instruction, request, authorization or other paper or document as to the due execution thereof and the validity and effectiveness of the provisions thereof and as to the truth of any information therein contained, which it in good faith believes to be genuine and to have been signed or presented by the proper party or parties in accordance with the terms of this Agreement. (b)Account Bank may act relative hereto upon advice of counsel in reference to any matter connected herewith. If at any time Account Bank determines that it requires or desires guidance regarding the application of any provision of this Agreement or any other document, regarding compliance with any direction it receives hereunder, Account Bank may deliver a notice to Secured Party (or CEA after Secured Party has informed Account Bank that CEA has satisfied all of CEA's obligations under the Master Agreements and the Power Purchase Agreements and a Discharge Date has occurred) requesting written instructions as to such application or compliance, and such instructions by or on behalf of Secured Party (or CEA after Secured Party has informed Account Bank that CEA has satisfied all of CEA's obligations under the Master Agreements and the Power Purchase Agreements and a Discharge Date has occurred), as applicable, shall constitute full and complete authorization and protection for actions taken and other performance by Account Bank in reliance thereon. Until Account Bank has received such instructions after delivering such notice, it may, but shall be under no duty to, take or refrain from taking any action with respect to the matters described in such notice. (c)This Agreement sets forth exclusively the duties of Account Bank with respect to any and all matters pertinent hereto, and no implied duties or obligations shall be read into this Agreement against Account Bank. (d)Any funds held by Account Bank, as such, need not be segregated from other funds except to the extent required by mandatory provisions of law. 7. REPRESENTATIONS OF ACCOUNT BANK Account Bank represents and warrants as to itself (as set forth below) to Secured Party as follows, such representations are being made on the date of the execution and delivery of this 3 CFA ACCOUNT CONTROL AGREEMENT CEA DRAFT 5 JANUARY 2021 Agreement, except to the extent that such representations and warranties relate solely to an earlier date (in which case such representations and warranties are correct on and as of such earlier date): (a)Organization, Corporate Authority. Account Bank represents and warrants that it is a national banking association duly organized and validly existing in good standing under the laws of the United States of America and has the corporate power and authority to enter into and perform its obligations under this Agreement, and has full right, power and authority to enter into and perform its obligations under this Agreement. (b)Authorization. Account Bank represents and warrants that this Agreement has been duly executed and delivered by one of its officers who is duly authorized to execute and deliver this Agreement on its own behalf. (c)Legal, Valid and Binding. Account Bank represents and warrants that this Agreement has been duly executed and delivered by it and, assuming that this Agreement is the legal, valid and binding obligation of each other party thereto, is the legal, valid and binding obligation of Account Bank, enforceable against Account Bank in accordance with its terms. (d)No Violation. Account Bank represents and warrants that this Agreement has been duly authorized by all necessary corporate action on its part, and neither the execution and delivery thereof nor its performance of any of the terms and provisions thereof will violate any federal law or regulation relating to its banking or trust powers or contravene or result in any breach of, or constitute any default under its charter or by-laws or the provisions of any indenture, mortgage, contract or other agreement to which it is a party or by which it or its properties may be bound or affected. 8.EXCULPATION OF ACCOUNT BANK; INDEMNIFICATION BY CEA Each of CEA and Secured Party agrees that Account Bank shall have no liability to any of them for any loss or damage that any or all may claim to have suffered or incurred, either directly or indirectly, by reason of this Agreement or any transaction or service contemplated by the provisions hereof, unless occasioned by the gross negligence, breach of an express term of this Agreement or willful misconduct of Account Bank. In no event shall Account Bank be liable for losses or delays resulting from computer malfunction, interruption of communication facilities, labor difficulties or other causes beyond Account Bank's reasonable control or for the indirect, special or consequential damages. CEA agrees to indemnify Account Bank and hold it harmless from and against all claims, other than those ultimately determined to be founded on the gross negligence or willful misconduct of Account Bank, and from and against any damages, penalties, judgments, liabilities, losses or expenses (including reasonable attorney's fees and disbursements) incurred as a result of the assertion of any claim, by any person or entity, arising out of, or otherwise related to, any transaction conducted or service provided by Account Bank through the use of the Lockbox Account at Account Bank or pursuant to this Agreement. 9.TERMINATION This Agreement may be terminated upon delivery to Account Bank of a written notification thereof jointly executed by Secured Party (as directed by the Required Secured Creditors) and (provided Secured Party has not notified Account Bank that an Event of Default is then continuing) 4 CEA ACCOUNT CONTROL AGREEMENT CEA DRAFT 5 JANUARY 2021 CEA. Notwithstanding the foregoing, this Agreement may be terminated by Secured Party in accordance with and subject to the requirements of that certain Intercreditor and Collateral Agency Agreement, dated as of even date herewith ("lntercreditor Agreement"), between and among Secured Party, Secured Creditors, and CEA, at any time, with or without cause, upon its delivery of written notice thereof to each of CEA and Account Bank. For the avoidance of doubt, it is expressly understood and agreed that the Account Bank shall have no duty to monitor or oversee, and shall have no liability whatsoever in connection with, Secured Party's compliance with the Intercreditor Agreement. This Agreement may be terminated by Account Bank at any time on not less than sixty (60) days' prior written notice delivered to each of CEA and Secured Party provided that such termination shall not take effect until Secured Party confirms that a replacement account and replacement security thereover have been obtained in form and substance satisfactory to Secured Party. Upon any such termination of this Agreement, Account Bank will immediately transmit to such account as Secured Party may direct all funds, if any, then on deposit in, or otherwise standing to the credit of the Lockbox Account. The provisions of paragraphs 2 and 5 shall survive termination of this Agreement unless and until specifically released by Secured Party in writing as directed by the Required Secured Creditors. All rights of Account Bank under paragraphs 4, 5, 6 and 8 shall survive any termination of this Agreement. 10.IRREVOCABLE AGREEMENTS CEA acknowledges that the agreements made by it and the authorizations granted by it in paragraph 2 hereof are irrevocable and that the authorizations granted in paragraph 2 hereof are powers coupled with an interest. 11.NOTICES All notices, requests or other communications given to Account Bank, CEA or Secured Party shall be given in writing (including by facsimile) at the address specified below: Account Bank: CEA: .Secured Party: River City Bank Attention: Cash Management 2485 Natomas Park Dr. Sacramento, CA 95833 Fax: 916-567-2779 Email: cashmgmt@rivercitybank.com Clean Energy Alliance Attention: Barbara Boswell, Interim CEA 1200 Carlsbad Village Dr. Carlsbad, CA 92008 Email: ceoAthecleanenergyalliance.org River City Bank, as Collateral Agent Attention: Cash Management 2485 Natomas Park Dr. Sacramento, CA 95833 Fax: 916-567-2779 5 CEA ACCOUNT CONTROL AGREEMENT CEA DRAFT 5 JANUARY 2021 Email: cashmgmt@rivercitybank.com Any party may change its address for notices hereunder by notice to each other party hereunder given in accordance with this paragraph 11. Each notice, request or other communication shall be effective (a) if given by facsimile, when such facsimile is transmitted to the facsimile number specified in this paragraph 11 and confirmation of receipt is made by the appropriate party, (b) if given by overnight courier, five (5) days after such communication is deposited with the overnight courier for delivery, addressed as aforesaid, or (c) if given by any other means, when delivered at the address specified in this paragraph 11. 12. MISCELLANEOUS (a)This Agreement may be amended only by a written instrument executed by each of the parties hereto acting by their respective duly authorized representatives. (b)This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns, but neither CEA nor Account Bank shall be entitled to assign or delegate any of its rights or duties hereunder without first obtaining the express prior written consent of Secured Party as directed by the Required Secured Creditors. (c)This Agreement and any related amendment or waiver may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, but all of which together shall constitute one instrument. The parties may rely on electronic or scanned signatures as originals. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom enforcement is sought. Delivery of an executed signature page of this Agreement by electronic format (including portable document format (.pdt)) shall be the same as delivery of an original executed signature page. (d)THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND ENFORCED UNDER, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE. The parties agree that the State of California (i) is and shall remain the "bank's jurisdiction" of the Account Bank for the purposes of the Uniform Commercial Code; and (ii) shall be deemed to be the location of the Lockbox Accounts and of CEA' s rights and interests in and to the Lockbox Accounts. This Agreement may be executed by the parties hereto in separate counterparts (or upon separate signature pages bound together into one or more counterparts), each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. (e)EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT 6 an ACCOUNT CONTROL AGREEMENT CEA DRAFT 5 JANUARY 2021 SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. IN THE EVENT ANY LEGAL PROCEEDING IS FILED IN A COURT OF THE STATE OF CALIFORNIA (THE "COURT") BY OR AGAINST ANY PARTY HERETO IN CONNECTION WITH ANY CONTROVERSY, DISPUTE OR CLAIM DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) (EACH, A "CLAIM") AND THE WAIVER SET FORTH IN THE PRECEDING PARAGRAPH IS NOT ENFORCEABLE IN SUCH ACTION OR PROCEEDING, THE PARTIES HERETO AGREE AS FOLLOWS: (i)WITH THE EXCEPTION OF THE MATTERS SPECIFIED IN PARAGRAPH (ii) BELOW, ANY CLAIM WILL BE DETERMINED BY A GENERAL REFERENCE PROCEEDING IN ACCORDANCE WITH THE PROVISIONS OF CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 638 THROUGH 645.1. THE PARTIES INTEND THIS GENERAL REFERENCE AGREEMENT TO BE SPECIFICALLY ENFORCEABLE IN ACCORDANCE WITH CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638. (ii)THE FOLLOWING MATTERS SHALL NOT BE SUBJECT TO A GENERAL REFERENCE PROCEEDING: (1) NON-JUDICIAL FORECLOSURE OF ANY SECURITY INTERESTS IN REAL OR PERSONAL PROPERTY, (2) EXERCISE OF SELF- HELP REMEDIES (INCLUDING, WITHOUT LIMITATION, SET-OFF), (3) APPOINTMENT OF A RECEIVER AND (4) TEMPORARY, PROVISIONAL OR ANCILLARY REMEDIES (INCLUDING, WITHOUT LIMITATION, WRITS OF ATTACHMENT, WRITS OF POSSESSION, TEMPORARY RESTRAINING ORDERS OR PRELIMINARY INJUNCTIONS). THIS AGREEMENT DOES NOT LIMIT THE RIGHT OF ANY PARTY TO EXERCISE OR OPPOSE ANY OF THE RIGHTS AND REMEDIES DESCRIBED IN THE FOREGOING CLAUSES (1) - (4) AND ANY SUCH EXERCISE OR OPPOSITION DOES NOT WAIVE THE RIGHT OF ANY PARTY TO A REFERENCE PROCEEDING PURSUANT TO THIS AGREEMENT. (iii)UPON THE WRITTEN REQUEST OF ANY PARTY, THE PARTIES SHALL SELECT A SINGLE REFEREE, WHO SHALL BE A RETIRED JUDGE OR JUSTICE. IF THE PARTIES DO NOT AGREE UPON A REFEREE WITHIN TEN (10) DAYS OF SUCH WRITTEN REQUEST, THEN, ANY PARTY MAY REQUEST THE COURT TO APPOINT A REFEREE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 640(B). (iv)ALL PROCEEDINGS AND HEARINGS CONDUCTED BEFORE THE REFEREE, EXCEPT FOR TRIAL, SHALL BE CONDUCTED WITHOUT A COURT REPORTER, EXCEPT WHEN ANY PARTY SO REQUESTS, A COURT REPORTER WILL BE USED AND THE REFEREE WILL BE PROVIDED A COURTESY COPY OF THE TRANSCRIPT. THE PARTY MAKING SUCH REQUEST SHALL HAVE THE OBLIGATION TO ARRANGE FOR AND PAY COSTS OF THE COURT REPORTER, PROVIDED THAT 7 CM ACCOUNT CONTROL AGREEMENT CEA DRAFT 5 JANUARY 2021 SUCH COSTS, ALONG WITH THE REFEREE'S FEES, SHALL ULTIMATELY BE BORNE BY THE PARTY WHO DOES NOT PREVAIL, AS DETERMINED BY THE REFEREE. (v)THE REFEREE MAY REQUIRE ONE OR MORE PREHEARING CONFERENCES. THE PARTIES HERETO SHALL BE ENTITLED TO DISCOVERY, AND THE REFEREE SHALL OVERSEE DISCOVERY IN ACCORDANCE WITH THE RULES OF DISCOVERY, AND MAY ENFORCE ALL DISCOVERY ORDERS IN THE SAME MANNER AS ANY TRIAL COURT JUDGE IN PROCEEDINGS AT LAW IN THE STATE OF CALIFORNIA. THE REFEREE SHALL APPLY THE RULES OF EVIDENCE APPLICABLE TO PROCEEDINGS AT LAW IN THE STATE OF CALIFORNIA AND SHALL DETERMINE ALL ISSUES IN ACCORDANCE WITH APPLICABLE STATE AND FEDERAL LAW. THE REFEREE SHALL BE EMPOWERED TO ENTER EQUITABLE AS WELL AS LEGAL RELIEF AND RULE ON ANY MOTION WHICH WOULD BE AUTHORIZED IN A TRIAL, INCLUDING, WITHOUT LIMITATION, MOTIONS FOR DEFAULT JUDGMENT OR SUMMARY JUDGMENT. THE REFEREE SHALL REPORT HIS DECISION, WHICH REPORT SHALL ALSO INCLUDE FINDINGS OF FACT AND CONCLUSIONS OF LAW. (vi)THE PARTIES RECOGNIZE AND AGREE THAT ALL CLAIMS RESOLVED IN A GENERAL REFERENCE PROCEEDING PURSUANT HERETO WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. (f)Each party to this Agreement hereby irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement, or any other transactions contemplated hereby may be brought in the courts of the United States of America for the Southern District of California in San Diego County or, if such court does not have subject matter jurisdiction, the courts of the State of California in San Diego County and hereby expressly submits to the personal jurisdiction and venue of such courts for the purposes thereof and expressly waives any claim of improper venue and any claim that any such court is an inconvenient forum. (g)CEA hereby irrevocably appoints at Clean Energy Alliance, 1200 Carlsbad Village Dr., Carlsbad, CA 92008, from time to time to receive on its behalf service of process issued out of the federal courts of California in any legal action or proceeding arising out of or in connection with this Agreement or any other document to which it is a party. CEA undertakes not to revoke the authority of the agent specified above and if, for any reason, any such agent no longer serves or is capable of serving as agent of CEA to receive service of process in CEA, such party shall promptly appoint another such agent and advise Secured Party thereof and, failing such appointment within fourteen (14) days, Secured Party shall be entitled (and is hereby authorized) to appoint an agent on behalf of CEA. Nothing herein contained shall restrict the right to serve process in any other manner allowed by law. (h)CEA warrants and covenants that with respect to its contractual obligations hereunder and performance thereof, it will not claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (a) suit, (b) jurisdiction of court (including a court located outside the jurisdiction of its organization), (c) relief by way of injunction, order for specific performance or recovery of property, (d) attachment of assets, or (e) execution or enforcement of any judgment. To the extent that CEA may be or becomes entitled to claim, with respect to itself and/or its revenues and assets (irrespective of their use or intended 8 CEA ACCOLINT CONTROL AGREEMENT CEA DRAFT 5 JANUARY 2021 use), any immunity on the grounds of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of injunction or order for specific performance or recovery of property, (iv) attachment of its assets (whether before or after judgment) and/or (v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any legal proceedings in the courts of any jurisdiction, CEA IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUCH IMMUNITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS AND IRREVOCABLY AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT IT WILL NOT CLAIM ANY SUCH IMMUNITY IN ANY PROCEEDINGS; PROVIDED, HOWEVER THAT NOTHING IN THIS AGREEMENT SHALL WAIVE THE OBLIGATIONS AND/OR RIGHTS SET FORTH IN THE CALIFORNIA TORT CLAIMS ACT (GOVERNMENT CODE SECTION 810 ET SEQ.). [Signatures on following page] 9 CEA ACCOUNT CONTROL AGREEMENT CEA DRAFT 5 JANUARY 2021 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their authorized representative as of the Effective Date. Account Bank: RIVER CITY BANK By: Name: Title: CEA: CLEAN ENERGY ALLIANCE, a California joint powers authority By: Name: Title: Secured Party: RIVER CITY BANK, not in its individual capacity, but solely as Collateral Agent By: Name: Title: CEA ACCOUNT CON1ROL AGREEMENT