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Purchaser agrees to deliver to Seller a non-disturbance agreement in a form reasonably acceptable to Seller from the
<br /> owner of the Facility(if the Facility is leased by Purchaser), any mortgagee with a lien on the Premises,and other
<br /> Persons holding a similar interest in the Premises. To the extent that Purchaser does not own the Premises or
<br /> Facility, Purchaser shall provide to Seller immediate written notice of receipt of notice of eviction from the Premises
<br /> or Facility or termination of Purchaser's lease of the Premises and/or Facility.
<br /> b. Option to Purchase. At the end of the fifth and any Contract Years beyond the fifth, and at the end of the Initial
<br /> Tenn and each Additional Term, so long as Purchaser is not in default under this Agreement, Purchaser may
<br /> purchase the System from Seller on any such date for a purchase price equal to the Fair Market Value of the System.
<br /> Purchaser must provide a notification to Seller of its intent to purchase at least ninety (90) days and not more than
<br /> one hundred eighty (180) days prior to the end of the applicable Contract Year or the Initial Term or Additional
<br /> Term, as applicable, and the purchase shall be complete prior to the end of the applicable Contract Year or the Initial
<br /> Term or Additional Term,as applicable. Any such purchase shall be on an as-is,where-is basis,and Seller shall not
<br /> provide any warranty or other guarantee regarding the performance of the System, provided, however, that Seller
<br /> shall assign to Purchaser any manufacturers warranties that are in effect as of the purchase,and which are assignable
<br /> pursuant to their terms.
<br /> c. Determination of Fair Market Value. "Fair Market Value" means, in Seller's reasonable determination, the
<br /> greater of: (i) the amount that would be paid in an arm's length, free market transaction, for cash, between an
<br /> informed, willing seller and an informed willing buyer, neither of whom is under compulsion to complete the
<br /> transaction,taking into account,among other things,the age,condition and performance of the System and advances
<br /> in solar technology, provided that installed equipment shall be valued on an installed basis, shall not be valued as
<br /> scrap if it is functioning and in good condition and costs of removal from a current location shall not be a deduction
<br /> from the valuation, and (ii) [for any given Contract Year, the amount set forth on Exhibit 4,Attachment A attached
<br /> hereto] [the present value (using a discount rate of ten percent (10%])) of all associated future income streams
<br /> expected to be received by Seller arising from the operation of the System for the remaining term of the Agreement
<br /> including but not limited to the expected price of electricity,Environmental Attributes,and Tax Credits and factoring
<br /> in future costs and expenses associated with the System avoided]. Seller shall determine Fair Market Value within
<br /> thirty(30) days after Purchaser has exercised its option to Purchase the System. Seller shall give written notice to
<br /> Purchaser of such determination, along with a full explanation of the calculation of Fair Market Value, including
<br /> without limitation, an explanation of all assumptions,figures and values used in such calculation and factual support
<br /> for such assumptions, figures and values. If Purchaser reasonably objects to Seller's determination of Fair Market
<br /> Value within thirty (30) days after Seller has provided written notice of such determination,the Parties shall select a
<br /> nationally recognized independent appraiser with experience and expertise in the solar photovoltaic industry to
<br /> determine the Fair Market Value of the System. Such appraiser shall act reasonably and in good faith to determine
<br /> the Fair Market Value of the System based on the formulation set forth herein,and shall set forth such determination
<br /> in a written opinion delivered to the Parties. The valuation made by the appraiser shall be binding upon the Parties
<br /> in the absence of fraud or manifest error. The costs of the appraisal shall be borne by the Parties equally. Upon
<br /> purchase of the System, Purchaser will assume complete responsibility for the operation and maintenance of the
<br /> System and liability for the performance of the System, and Seller shall have no further liabilities or obligations
<br /> hereunder.
<br /> 17. Indemnification and Limitations of Liability.
<br /> a. General. Each Party(the"Indemnifying Party")shall defend,indemnify and hold harmless the other Party and the
<br /> directors, officers, shareholders, partners, members, agents and employees of such other Party, and the respective
<br /> affiliates of each thereof(collectively, the "Indemnified Parties"), from and against all loss, damage. expense,
<br /> liability and other claims, including court costs and reasonable attorneys' fees(collectively,"Liabilities")resulting
<br /> from any third party actions relating to the breach of any representation or warranty set forth in Section 14 and from
<br /> injury to or death of persons,and damage to or loss of property to the extent caused by or arising out of the negligent
<br /> acts or omissions of the Indemnifying Party (or its contractors, agents or employees) in connection with this
<br /> Agreement; provided, however, that nothing herein shall require the Indemnifying Party to indemnify the
<br /> Indemnified Party for any Liabilities to the extent caused by or arising out of the negligent acts or omissions of,or
<br /> the willful misconduct of, the Indemnified Party. This Section however,shall not apply to liability arising from any
<br /> form of hazardous substances or other environmental contamination.
<br /> b. Notice and Participation in Third Party Claims. The Indemnified Party shall give the Indemnifying Party written
<br /> notice with respect to any Liability asserted by a third party (a"Claim"), as soon as possible upon the receipt of
<br /> information of any possible Claim or of the commencement of such Claim. The Indemnifying Party may assume the
<br /> defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and
<br /> reasonably satisfactory to the Indemnified Party. The Indemnified Party may also, at the sole cost and expense of
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