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POWER PURCHASE AGREEMENT ("PPA") <br /> g. Comparative Negligence. It is the intent of the Parties that where negligence is <br /> determined to have been joint, contributory or concurrent, each Party shall bear the <br /> proportionate cost of any Liability. <br /> h. Non-Dedication of Facilities. Nothing herein shall be construed as the dedication by <br /> either Party of its facilities or equipment to the public or any part thereof. Neither Party <br /> shall knowingly take any action that would subject the other Party, or other Party's <br /> facilities or equipment, to the jurisdiction of any Governmental Authority as a public <br /> utility or similar entity. Neither Party shall assert in any proceeding before a court or <br /> regulatory body that the other Party is a public utility by virtue of such other Party's <br /> performance under this agreement. If Seller is reasonably likely to become subject to <br /> regulation as a public utility,then the Parties shall use all reasonable efforts to restructure <br /> their relationship under this Agreement in a manner that preserves their relative <br /> economic interests while ensuring that Seller does not become subject to any such <br /> regulation. If the Parties are unable to agree upon such restructuring, Seller shall have <br /> the right to terminate this Agreement without further liability,and Seller shall remove the <br /> System in accordance with Section 11 of this Agreement. <br /> Estoppel. Either Party hereto,without charge, at any time and from time to time,within <br /> five (5) business days after receipt of a written request by the other party hereto, shall <br /> deliver a written instrument, duly executed, certifying to such requesting party, or any <br /> other person specified by such requesting Party: (i) that this Agreement is unmodified <br /> and in full force and effect, or if there has been any modification, that the same is in full <br /> force and effect as so modified,and identifying any such modification; (ii)whether or not <br /> to the knowledge of any such party there are then existing any offsets or defenses in favor <br /> of such party against enforcement of any of the terms, covenants and conditions of this <br /> Agreement and, if so, specifying the same and also whether or not to the knowledge of <br /> such party the other party has observed and performed all of the terms, covenants and <br /> conditions on its part to be observed and performed, and if not,specifying the same; and <br /> (iii)such other information as may be reasonably requested by the requesting Party. Any <br /> written instrument given hereunder may be relied upon by the recipient of such <br /> instrument,except to the extent the recipient has actual knowledge of facts contained in <br /> the certificate. <br /> j. Service Contract.The Parties intend for this Agreement to be a "service contract"within <br /> the meaning of Section 7701(e)(3) of the Internal Revenue Code of 1986. Purchaser will <br /> not take the position on any tax return or in any other filings suggesting that it is anything <br /> other than a purchase of electricity from the System. <br /> k. No Partnership. No provision of this agreement shall be construed or represented as <br /> creating a partnership, trust,joint venture, fiduciary or any similar relationship between <br /> the Parties. No Party is authorized to act on behalf of the other Party, and neither shall <br /> be considered the agent of the other. <br /> Page 33 of 49 <br />