Exhibit 10.1

Beacon Power Corporation has requested that portions of this document be accorded confidential treatment pursuant to Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.

COMMON AGREEMENT

dated as of August 6, 2010

among

STEPHENTOWN REGULATION SERVICES LLC, as Borrower

U.S. DEPARTMENT OF ENERGY, as Credit Party,

U.S. DEPARTMENT OF ENERGY, as Loan Servicer,

and

MIDLAND LOAN SERVICES, INC.,

as Administrative Agent in its capacity as the Collateral Agent

BEACON POWER PROJECT

STEPHENTOWN, NEW YORK

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

Table of Contents

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Exhibits

Schedules

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COMMON AGREEMENT

This COMMON AGREEMENT (the “Common Agreement”), dated as of August 6, 2010, is by and among (i) STEPHENTOWN REGULATION SERVICES LLC, a limited liability company organized and existing under the laws of Delaware, as Borrower, (ii) the U.S. DEPARTMENT OF ENERGY, acting by and through the Secretary of Energy, for itself as a Credit Party and as guarantor of the Advances made under the DOE Credit Facility Documents (in such capacity, “DOE”), (iii) the U.S. DEPARTMENT OF ENERGY, acting through its Loan Guarantee Program Office, as the Loan Servicer (in such capacity, the “Loan Servicer”), and (iv) MIDLAND LOAN SERVICES, INC., a corporation organized and existing under the laws of Delaware, as the Administrative Agent in its capacity as the Collateral Agent.

RECITALS

WHEREAS, the Borrower intends to develop, design, construct, own and operate a flywheel-based frequency regulation plant designed to enhance grid stabilization and optimization, to be located in Stephentown, New York (the “Project”).

WHEREAS, the Equity Interests of the Borrower are currently held by Holdings, as sole Equity Owner of the Borrower, and the Equity Interests of Holdings are currently held by the Sponsor as the sole Equity Owner of Holdings.

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

(i)            FFB make the Advances pursuant to the DOE Credit Facility Documents in the aggregate principal amount not exceeding $43,137,019, and

(ii)           DOE guarantee the repayment of the DOE-Guaranteed Loan pursuant to the DOE Guarantee.

WHEREAS, the execution of this Common Agreement, which provides for, inter alia (i) certain common representations, warranties and covenants of the Borrower, (ii) certain uniform conditions of disbursement for the Advances, and (iii) certain common events of default, is a condition precedent to the obligations of the Credit Parties under the DOE Credit Facility Documents.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing, the Credit Parties entering into the DOE Credit Facility Documents, and other good and valid consideration, the receipt and adequacy of which are hereby expressly acknowledged, the parties hereby agree as follows:

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

ARTICLE 1
DEFINITIONS; RULES OF INTERPRETATION

1.1.                            Definitions.

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

1.2.                            Rules of Interpretation.

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

1.3.                            Conflict with DOE Credit Facility Documents.

Except as otherwise expressly provided hereunder, in the case of any conflict between the terms of this Common Agreement and the terms of any DOE Credit Facility Document to which Borrower is a party, the terms of such DOE Credit Facility Document, as between the Borrower and the Credit Parties party thereto, shall control.

ARTICLE 2
FUNDING

2.1.                            Financial Plan; Advance and Equity Advance Schedule.

(a)           The proposed sources and uses of financing with respect to the Project are set forth on the Financial Plan.  This Article 2 does not represent any undertaking of any of the Credit Parties to make any Advances to the Borrower.

(b)           Attached hereto as Schedule 2.1(b) is an initial Advance Schedule, which represents the Borrower’s best estimate in all material respects as of the Common Agreement Date, based on all facts and circumstances existing and Known to the Borrower, of the timing and amount of proposed Advances and Equity Advances for the Project set forth on a monthly basis.  The Advance Schedule shall be amended from time to time as set forth in Section 4.2.2.  All Base Equity shall be provided by Borrower on or prior to the Financial Closing Date.

(c)           Eligible Base Project Costs shall be funded as follows:

(i)            Until satisfaction (or waiver in writing) as determined by each Relevant Credit Party in its sole discretion (or reasonable discretion, if expressly so provided herein) of each of the Advance Conditions Precedent for the initial Advance, one hundred percent (100%) of Eligible Base Project Costs shall be funded with the proceeds of Equity Advances.

(ii)           After satisfaction (or waiver in writing) as determined by each Relevant Credit Party in its sole discretion (or reasonable discretion, if expressly so provided herein) of each of the Advance Conditions Precedent for the initial Advance, one hundred percent (100%)

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of Eligible Base Project Costs shall be funded with the proceeds of Advances, until such time as sixty-two and one-half percent (62.5%) of the aggregate of all Eligible Base Project Costs that have been funded, directly with the proceeds of Advances and Equity Advances or indirectly by means of contributions of assets by Sponsor or Holdings to Borrower (collectively, the “Funded Eligible Base Project Costs”) shall have been funded with proceeds of Advances.

(iii)          After sixty-two and one-half percent (62.5%) of the aggregate of all Funded Eligible Base Project Costs shall have been funded with proceeds of Advances, (A) sixty-two and one-half percent (62.5%) of each request for funding under a Master Advance Notice shall be funded with the proceeds of an Advance and (B) thirty-seven and one-half percent (37.5%) of each request for funding under a Master Advance Notice shall be funded with the proceeds of an Equity Advance.

(d)           Notwithstanding anything contained in this Agreement to the contrary:  (i) no Advances may be used to fund any portion of the Debt Service Reserve Requirement prior to the Physical Completion Date; and (ii) the aggregate amount of all Advances prior to the Physical Completion Date shall not exceed the maximum principal amount of the DOE Credit Facility minus one hundred ten percent (110%) of the Debt Service Reserve Requirement.

2.2.                            Availability of Advances.

2.2.1                        Availability.

Subject to the satisfaction (or waiver by the Relevant Credit Party in writing) of each applicable condition precedent set forth in Article 4 and in the DOE Credit Facility, Advances under the DOE Credit Facility shall be made during the applicable Availability Period; provided, however, that, notwithstanding anything to the contrary contained in the FFB Promissory Note, no Advances under the DOE Credit Facility will be made to pay interest on the DOE Credit Facility after December 15, 2011.

2.2.2                        Loan Commitment Reductions and Cancellations.

The Borrower may, on not less than fifteen (15) days prior written notice to the Loan Servicer and upon the satisfaction of any consent requirement or other applicable provisions of each DOE Credit Facility Document, permanently reduce the unutilized portions of the DOE Credit Facility Commitment, in whole or in part, but only if:

(a)           each partial reduction is in an amount permitted under the DOE Credit Facility Documents;

(b)           the Loan Servicer, in consultation with the Lender’s Engineer, is satisfied that such cancellation or reduction will not result in the Borrower having insufficient funds to complete the construction or development of the Project; and

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

Once reduced or canceled, the DOE Credit Facility Commitment may not be reinstated.

2.3.                            Mechanics for Requesting Advances and Equity Advances.

2.3.1                        Master Advance Notice.

(a)           The Borrower may request an Advance under the DOE Credit Facility and/or an Equity Advance by delivering to the Credit Parties and the Lender’s Engineer, not less than eleven (11) Business Days prior to the Requested Advance Date, an appropriately completed Master Advance Notice with respect to such Advance and/or Equity Advance.  The Borrower may request an Advance and/or an Equity Advance no more frequently than once per calendar month.

(b)           Each Master Advance Notice shall specify:

(i)            the amount of the Advance requested under the DOE Credit Facility, if any, which shall be in the minimum amount and increments required by the DOE Credit Facility Documents and the amount of the Equity Advance requested, if any;

(ii)           the Requested Advance Date, if the Master Advance Notice includes a request for an Advance, or the requested date for the Equity Advance, if the Master Advance Notice does not include a request for an Advance, which, in each case, shall be any Business Day;

(iii)          pursuant to Section 2.4.2, the amount of Base Equity and Overrun Equity to be disbursed from the Base Equity Account and the Overrun Equity Account on the Requested Advance Date, if the Master Advance Notice includes a request for an Advance, or the requested date for the Equity Advance, if the Master Advance Notice does not include a request for an Advance;

(iv)          the aggregate amount, on a prospective basis after giving effect to the requested Advance, if any, and the requested Equity Advance, if any, of (A) all Advances outstanding under the DOE Credit Facility, (B) the amount of the Approved Pre-Closing Equity Credit, and (C) all Base Equity and Overrun Equity (if any) disbursed from the Base Equity Account and the Overrun Equity Account or in cash;

(v)           the Project Costs being financed using the proceeds of the requested Advance, and/or Equity Advance, which shall be only Eligible Base Project Costs;

(vi)          [Reserved];

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(vii)         that (A) the representations and warranties of the Borrower contained in the Loan Documents to which the Borrower is a party are true, correct and complete in all material respects on and as of the Requested Advance Date, if the Master Advance Notice includes a request for an Advance, or the requested date for the Equity Advance, if the Master Advance Notice does not include a requested for an Advance (other than to the extent such representations and warranties relate solely to an earlier date), (B) no Event of Default or Potential Default has occurred and is continuing, and (C) such other matters as are required to be certified by the Borrower pursuant to Section 4.2; and

(viii)        Such other information as may be required in the form of Master Advance Notice.

(c)           The Borrower shall include as attachments to each Master Advance Notice, and shall deliver the same to the Loan Servicer:

(i)            a draft of the FFB Advance Request with respect to any requested Advance, together with any information necessary for FFB and the Loan Servicer to process such request; and

(ii)           all other certificates and documentation required in respect of such Advance under the DOE Credit Facility Documents and the related Loan Documents.

2.4.                            Mechanics for Funding Advances and Equity Advances.

2.4.1                        DOE-Guaranteed Loan Funding.

(a)           Satisfaction of Conditions Precedent.

(i)            Promptly after receipt of a Master Advance Notice, the Loan Servicer shall review such Master Advance Notice and the attachments thereto to determine whether all certificates and documentation required under Section 2.3 have been delivered to it.  At such time as the Loan Servicer has determined that it has received all such required certificates and documentation, it shall promptly so notify the other Credit Parties and the Borrower;

(ii)           No later than six (6) Business Days prior to the Requested Advance Date, the Borrower shall deliver to the Loan Servicer a completed FFB Advance Request with respect to the requested Advance, including all wire transfer information for the designated payees of the proceeds of such Advance, together with any other information required on such FFB Advance Request; and

(iii)          As soon as the Loan Servicer determines that (A) all conditions precedent set forth in Article 4 in respect of the requested Advance have been satisfied (or waived), (B) the required Equity Contributions have been made in accordance with Section 2.4.2, and (C) the FFB Advance Request and all other certificates and documentation required under the DOE Credit Facility in respect of the requested Advance have been provided and are satisfactory (or

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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that such requirement has been waived), then DOE shall sign the FFB Advance Request Approval Notice attached to the FFB Advance Request and forward both to the FFB, with a copy to the Borrower, the Administrative Agent in its capacity as the Collateral Agent and the Lender’s Engineer, it being agreed that if the Loan Servicer makes such determination at least six (6) Business Days prior to the Requested Advance Date, then DOE shall use reasonable commercial efforts to sign and forward such FFB Advance Request Approval Notice at least five (5) Business Days prior to the Requested Advance Date.

(b)           FFB Funding.  For any requested Advance for which a FFB Advance Request Approval Notice has been issued pursuant to this Section 2.4.1 and for which no Drawstop Notice has been issued pursuant to Section 2.4.3, in accordance with the terms of the FFB Note Purchase Agreement, FFB has agreed to fund such Advance on the Requested Advance Date in accordance with the DOE Credit Facility Documents.  Such funds shall be applied as specified in the applicable FFB Advance Request; provided, however, that if any Drawstop Notice has been issued and is in effect on the Requested Advance Date with respect to any funds received by the Administrative Agent in its capacity as the Collateral Agent, such funds shall be applied pursuant to Section 2.4.3(c).

2.4.2                        Equity Contributions.

(a)           Confirmation.  As of the date that is eight (8) Business Days prior to the requested date for the Equity Advance, to the extent that the Administrative Agent in its capacity as the Collateral Agent has determined that the amount on deposit in the Base Equity Account and the Overrun Equity Account are not sufficient to satisfy the requirements of Section 2.1(c), the Administrative Agent in its capacity as the Collateral Agent shall so notify the Borrower, the Sponsor and the Credit Parties.  If as of the date six (6) Business Days prior to the requested date for the Equity Advance there continues to be a shortfall in the amounts on deposit in the Base Equity Account and the Overrun Equity Account and the Borrower has not provided evidence satisfactory to the Loan Servicer it its sole discretion that such shortfall will be cured prior to the requested date for the Equity Advance, the Administrative Agent in its capacity as the Collateral Agent shall send a Drawstop Notice to the Borrower and the other Credit Parties.

(b)           Disbursements:  On the requested date for the Equity Advance, provided that the Collateral Agent has not received a Drawstop Notice, the Collateral Agent shall cause Equity Contributions to be disbursed (i) from the Base Equity Account and, (ii) if the amount on deposit in the Base Equity Account shall be insufficient, after application of all monies on deposit in the Base Equity Account for such purpose, from the Overrun Equity Account, in the amounts required pursuant to Section 2.1(c).

(c)           Reserve Letter of Credit.  In lieu of maintaining the required amounts in the Base Equity Account, the Sponsor may substitute a Reserve Letter of Credit.

(d)           Physical Completion.  Upon Physical Completion, at the request of the Borrower, provided that no Potential Default or Event of Default then exists, any remaining balance in the Base Equity Account and the Overrun Equity Account not otherwise used to fund Total Project

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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Costs may be disbursed to the Borrower for distribution to the Equity Owners of the Borrower, without regard to the limitations set forth in Section 7.10 hereof (except for Section 7.10(a)(ii) hereof).

2.4.3                        Drawstop Notices.

(a)           Issuance.  At any time after the issuance of a Master Advance Notice up to the date that is one Business Day prior to the Requested Advance Date, if the Master Advance Notice includes a request for an Advance, or the requested date for the Equity Advance, if the Master Advance Notice does not include a request for an Advance, whether or not DOE has issued an FFB Advance Request Approval Notice, any Relevant Credit Party may, from time to time, issue a notice substantially in the form attached hereto as Exhibit N (a “Drawstop Notice”) to the Borrower and the other Credit Parties, if such Relevant Credit Party determines that:

(i)            the conditions in Article 4 with respect to such Advance or Equity Advance are not met, or having been met, are no longer met; or

(ii)           the conditions precedent to such Advance contained in the DOE Credit Facility are not met, or having been met, are no longer met.

(b)           Consequences.  If a Drawstop Notice is issued, FFB shall not be obligated to make the requested Advance, if applicable; and the Collateral Agent shall not be obligated to make the requested Equity Advance, if applicable.

(c)           Funds Advanced.  If any Drawstop Notice has been issued, funds delivered to the Administrative Agent in its capacity as the Collateral Agent pursuant to Section 2.4.1(b) shall not be applied and shall be returned promptly to the respective Credit Parties.

(d)           Costs.  The Borrower shall pay all costs in respect of any Advance failed to be made under this Section 2.4.3.

2.4.4                        No Liability.

Without limiting the generality of Section 9.6, no Credit Party shall have any liability to the Borrower or any Affiliate thereof or to any other Credit Party solely arising from the issuance of or failure to issue any FFB Advance Request Approval Notice, Drawstop Notice, or any other notice contemplated by this Section 2.4.

2.5.                            Advance Requirements under the DOE Credit Facility.

Notwithstanding anything to the contrary contained in this Article 2, the Borrower also shall comply with all separate disbursement requirements set forth herein and in the DOE Credit Facility Documents.  Unless otherwise specified in the DOE Credit Facility Documents, all determinations to be made with respect to the DOE Credit Facility shall be made by DOE.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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2.6.                            No Approval of Work.

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

ARTICLE 3
PAYMENTS; PREPAYMENTS

3.1.                            Place and Manner of Payments.

3.1.1                        Generally.

All payments due under the DOE Credit Facility shall be made by the Borrower pursuant to the terms of the DOE Credit Facility Documents and as specified herein.

3.1.2                        Net of Tax, Etc.

(a)           Tax.  Any and all payments to any Secured Party or FFB by the Borrower hereunder or under any other Loan Document shall be made free and clear of, and without deduction for, any and all taxes, levies, imposts, deductions, charges or withholdings imposed by any central bank or other Governmental Authority, and all liabilities with respect thereto, excluding (i) taxes imposed on or measured by the net income (however denominated) of such Secured Party or FFB by any jurisdiction or any political subdivision or taxing authority thereof or therein solely as a result of a present or former connection between such Secured Party or FFB and such jurisdiction or political subdivision (other than any connection arising as a result of the transactions contemplated by the Loan Documents), and (ii) any withholding taxes or other tax based on gross income imposed by the United States of America that are not attributable to any Change of Law or the interpretation or administration of any Governmental Rule by any Governmental Authority (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as “Covered Taxes”).  If the Borrower shall be required by law to withhold or deduct any Covered Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Secured Party or FFB, (A) the sum payable shall be increased as may be necessary so that after making all such required deductions (including deductions applicable to additional sums payable under this Section 3.1.2), such Secured Party or FFB receives an amount equal to the sum it would have received had no such deductions been made, (B) the Borrower shall make such deductions and (C) Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with all Governmental Rules.  If the Borrower shall make any payment with respect to Covered Taxes under this Section 3.1.2(a) to or for the benefit of any Secured Party or FFB and if such Secured Party or FFB shall claim any credit or deduction for such Covered Taxes against any other taxes payable by such Secured Party or FFB then such Secured Party or FFB shall pay to the Borrower an amount equal to the amount the Secured Party determines in its reasonable discretion is the amount by which such other taxes are actually reduced; provided that the aggregate amount

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payable by such Secured Party or FFB pursuant to this sentence shall not exceed the aggregate amount previously paid by the Borrower with respect to such Covered Taxes.

(b)           Indemnity.  The Borrower shall indemnify each Secured Party for the full amount of Covered Taxes (including any Covered Taxes imposed by any jurisdiction on amounts payable under this Section 3.1.2 paid by any Secured Party), whether or not such Covered Taxes were correctly or legally asserted.  Each Secured Party shall give notice to the Borrower of the assertion of any claim against such Secured Party relating to such Secured Party’s Covered Taxes as promptly as is practicable after being notified of such assertion; provided that any failure to notify the Borrower promptly of such assertion shall not relieve the Borrower of its obligation under this Section 3.1.2, except, with respect to any such notice given by a Secured Party more than ninety (90) days after such Secured Party has notice or knowledge of such claim, to the extent that the Borrower is actually prejudiced by such failure.  Payments by the Borrower pursuant to this indemnification shall be made within ten (10) days after the date such Secured Party makes written demand therefor (submitted through the Loan Servicer), which demand shall be accompanied by a certificate describing in reasonable detail the basis thereof.  Each Secured Party agrees to repay to the Borrower any refund (including that portion of any interest that was included as part of such refund with respect to Covered Taxes paid by the Borrower pursuant to this Section 3.1.2), received by such Secured Party for Covered Taxes that were paid by the Borrower pursuant to this Section 3.1.2, and to provide reasonable assistance to the Borrower (and at the expense of the Borrower) to contest any such Covered Taxes that such Secured Party or the Borrower reasonably believes not to have been properly assessed.

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

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

(e)           Documentation.  Any foreign Secured Party that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower, at the time or times prescribed by applicable law or reasonably requested by the Borrower, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Secured Party, if requested by the Borrower, shall deliver such other documentation prescribed

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by applicable law or reasonably requested by the Borrower as will enable the Borrower to determine whether or not such Secured Party is subject to backup withholding or information reporting requirements.  Each Secured Party shall promptly (i) notify the Borrower of any change in circumstances that would modify or render invalid any such claimed exemption or reduction and (ii) take such steps as shall not be disadvantageous to it, in the sole judgment of such Secured Party, and as may be reasonably necessary (including the re-designation of its lending office) to avoid any requirement of applicable laws of any such jurisdiction that the Borrower make any deduction or withholding for taxes from amounts payable to such Secured Party.

3.2.                            Interest Provisions Relating to All Advances.

3.2.1                        Interest Account and Interest Computations.

In accordance with Section 609.10(e)(1) of the Applicable Loan Guarantee Requirements, interest shall accrue on the unpaid principal amount of each Advance from the date such Advance is disbursed to the Borrower pursuant to the DOE Credit Facility Documents, to the date such Advance is paid in full, at a rate per annum relating thereto as specified in the DOE Credit Facility Documents.  The Borrower hereby authorizes each Credit Party to record in an account or accounts maintained by such Credit Party on its books (A) the interest rates applicable to all Advances, (B) the interest periods for each Advance outstanding, (C) the date and amount of each principal and interest payment on each Advance outstanding, and (D) such other information as such Credit Party may determine is necessary for the computation of interest payable by the Borrower hereunder.  The Borrower agrees that all computations of interest by a Credit Party pursuant to this Section 3.2.1 shall, absent manifest error, constitute prima facie evidence of the amount thereof, and shall be conclusive absent manifest error.  All computations of interest shall be made as set forth in the relevant DOE Credit Facility Documents.

3.2.2                        Interest Payment Dates.

Subject to the terms of the DOE Credit Facility, the Borrower shall pay accrued interest on the outstanding principal amount of each Advance on each Quarterly Payment Date, on prepayment (on the principal amount prepaid), and at maturity (whether by acceleration or otherwise).

3.3.                            Change of Circumstances.

3.3.1                        Alternate Office; Minimization of Costs.

Upon any FFB Loan Transfer or receipt by the Borrower or any Credit Party of notice of FFB’s intention to make any FFB Loan Transfer in accordance with the FFB Note Purchase Agreement, the Borrower, DOE, the Loan Servicer and the Administrative Agent shall cooperate with the transferee of the DOE-Guaranteed Loans to amend this Common Agreement and any other Loan Documents to incorporate customary provisions for a commercial loan transaction of this type reasonably satisfactory to such transferee lender with respect to such transferee lender

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designating an alternative lending office with respect to its DOE-Guaranteed Loan to mitigate costs or to avoid any circumstances that might make it unlawful or impossible for such transferee lender to maintain a DOE-Guaranteed Loan.

3.3.2                        Illegality.

Upon any FFB Loan Transfer or receipt by the Borrower or any Credit Party of notice of FFB’s intention to make any FFB Loan Transfer in accordance with the FFB Note Purchase Agreement, the Borrower and DOE shall cooperate with the transferee of the FFB Loan to amend this Common Agreement and any other Loan Documents to incorporate customary provisions for a commercial loan transaction of this type reasonably satisfactory to such transferee with respect to any Change of Law that makes it unlawful or impossible for any lender to make or maintain any FFB Loans.

3.3.3                        Modifications upon Transfer.

Upon any FFB Loan Transfer or receipt by the Borrower or any Credit Party of notice of FFB’s intention to make any FFB Loan Transfer in accordance with the FFB Note Purchase Agreement, the Borrower, DOE, the Loan Servicer and the Administrative Agent shall cooperate with the transferee of the FFB Loans to amend this Common Agreement and any other Loan Documents to incorporate customary provisions reasonably satisfactory to such transferee with respect to any Change of Law that subjects such transferee lender to any tax, duty or other charge with respect to any FFB Loans.

3.4.                            Prepayments.

3.4.1                        Terms of all Prepayments.

(a)           With respect to any prepayment of any Advance of the DOE-Guaranteed Loans, whether such prepayment is voluntary or mandatory, including a prepayment upon acceleration, the Borrower shall comply with all applicable terms and provisions of the FFB Note Purchase Agreement.

(b)           All prepayments of the DOE Credit Facility shall be applied in accordance with the DOE Credit Facility Documents.

(c)           The Borrower may not reborrow the principal amount of any DOE-Guaranteed Loan that is prepaid.

3.4.2                        Voluntary Prepayments.

(a)           Without the consent of the Loan Servicer, the Borrower may not prepay the DOE-Guaranteed Loans in part prior to the end of the Availability Period.  Any prepayment in whole or in part with the consent of the Loan Servicer prior to the end of the Availability Period shall be subject to any applicable prepayment premiums, charges or other amounts as may be required by the DOE Credit Facility Documents.

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(b)           After the end of the Availability Period, the Borrower may prepay all or a portion of the principal amount of any Advance of the DOE-Guaranteed Loans upon prior written notice submitted by the Borrower to the Credit Parties not later than the fifth Business Day prior to the Intended Prepayment Date, and satisfaction of the following conditions:

(i)            compliance with any restrictions contained in the DOE Credit Facility Documents, including (A) with respect to the DOE Credit Facility, any “No-Call Period” specified in the FFB Note Purchase Agreement, and (B) satisfaction of any minimum amount requirement of the DOE Credit Facility Documents; and

(ii)           payment of all accrued and unpaid interest on such principal amount, and any other fees and Periodic Expenses then payable, including any prepayment premiums, or other amounts as may be required under the DOE Credit Facility Documents.

3.4.3                        Mandatory Prepayments.

(a)           The Borrower shall be required to make mandatory prepayments of the DOE-Guaranteed Loans upon the occurrence of any of the following and in amounts set forth in this Section 3.4.3, minus such amounts as may be required to be deposited (i) in the Debt Service Reserve Account such that the amount on deposit in the Debt Service Reserve Account equals the Debt Service Reserve Requirement and (ii) in the Maintenance Reserve Account such that the amount on deposit in the Maintenance Reserve Account equals the MRA Required Amount:

(i)            the receipt by the Borrower of delay damages in excess of the amounts needed, as determined by the Loan Servicer in consultation with the Lender’s Engineer (as appropriate) to pay financing and operating costs payable resulting from the delay;

(ii)           the receipt by the Borrower of Loss Proceeds in an amount that exceeds the amount of such Loss Proceeds used or to be used to repair or restore the Project Facility;

(iii)          the payment of any amounts to the Borrower in respect of the termination or repudiation of any Project Document or in respect of any damages paid to the Borrower as a result of a breach of any such Project Document (in the case of damages in excess of the amount applied in remedying the relevant breach), in each case, after deduction of all costs and expenses (including reasonable attorneys’ fees) incurred in collecting such amounts;

(iv)          sales of any assets no longer used or useful in the operation of the Project Facility in excess of $500,000 in a single transaction or a series of related transactions, in an amount equal to the proceeds of such sales, after deduction of all costs and expenses (including reasonable attorneys’ fees) incurred in connection with such sales, unless applied or to be applied to the acquisition of replacement assets; and

(v)           to the extent any Restricted Payments or any other payments are made from the Distribution Suspense Account in accordance with Section A.14 of Appendix A to this Agreement, then the Borrower shall, at the same time that such payments are made, apply an

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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amount equal to 36% of the amount of such payment to the prepayment of the DOE-Guaranteed Loan (the “Prepayment Amount”), with such Prepayment Amount allocated to the prepayment of principal in the maximum possible amount when taken together with any associated make-whole premiums or discounts (it being understood that (x) if there is an associated premium, the principal amount prepaid would be less than the Prepayment Amount, and (y) if there is an associated discount, the principal amount prepaid would be greater than the Prepayment Amount).

(b)           Any mandatory prepayments of the DOE-Guaranteed Loans shall be made no later than on the next Payment Date in accordance with the DOE Credit Facility Documents, shall be applied, and shall be subject to the terms and conditions, as set forth in the DOE Credit Facility Documents.

3.5.                            Reserved.

3.6.                            Payment of DOE Credit Facility Fees.

(a)           Borrower shall pay (i) to DOE on the Financial Closing Date, the balance of the DOE Credit Facility Fee in an amount equal to 0.8% of the maximum principal amount of the DOE Credit Facility, and (ii) to FFB, the fees payable to FFB from time to time in accordance with the requirements of the DOE Credit Facility Documents.

(b)           Borrower shall pay to DOE, for its own account, the DOE Maintenance Fee each year in advance, commencing on the Financial Closing Date.

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

(d)           All DOE Credit Facility Fees shall be paid on the dates due, in immediately available funds in Dollars, to DOE.  Once paid, the DOE Credit Facility Fees shall not be refundable under any circumstances.

3.7.                            Evidence of Debt.

(a)           Each of the Credit Parties shall maintain or cause to be maintained, in accordance with its usual practice, internal records evidencing the amounts from time to time lent by and owing to it under the DOE Credit Facility Documents and each of the payments from time to time made in respect thereof.

(b)           The Loan Servicer shall maintain, in accordance with its usual practice, internal records evidencing the amounts from time to time (i) advanced by FFB under the FFB Note Purchase Agreement, and (ii) paid by DOE with respect to the DOE Guarantee and, in each case, each of the payments made from time to time in respect thereof.

(c)           Except as otherwise provided in any Loan Document, the entries made in the internal records maintained by or on behalf of each of the Credit Parties, respectively, pursuant

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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to clauses (a) and (b), above shall, absent manifest error, constitute prima facie evidence of the existence and amount of Secured Obligations of the Borrower as therein recorded, and shall be conclusive absent manifest error.

ARTICLE 4
CONDITIONS PRECEDENT TO ADVANCES

4.1.                            Initial Conditions Precedent to Financial Closing Date.

The establishment of the Financial Closing Date is subject to the prior satisfaction (or waiver in writing), as determined by (x) in all cases, DOE and (y) with respect to any documents or instruments addressed to FFB or to which FFB is party, FFB (each a “Relevant Credit Party”) in its sole discretion, of each of the following conditions precedent set forth in this Section 4.1 (the “Initial Conditions Precedent”).  Solely for purposes of establishing the Financial Closing Date, all of the Initial Conditions Precedent shall be deemed satisfied or waived on the date of execution and delivery by all parties hereto of this Common Agreement.

4.1.1                        Loan Documents.

The Loan Servicer shall have received fully executed originals in sufficient counterparts for each Credit Party of each of the following documents, each of which shall be in form and substance satisfactory to each Relevant Credit Party:

(a)           Common Agreement.  This Common Agreement;

(b)           Building Loan Agreement.  The Building Loan Agreement;

(c)           DOE Credit Facility Documents.  Each of the following documents and all other contracts and documents required in connection with the DOE Credit Facility (the “DOE Credit Facility Documents”):

(i)            the FFB Note Purchase Agreement;

(ii)           the FFB Promissory Note;

(iii)          the DOE Guarantee; and

(iv)          the Administrative Agent Fee Letter and Agreement;

(d)           Sponsor Loan Documents.  Each of the following documents from the Sponsor and all other contracts and documents required in connection with the Equity Contributions (the “Sponsor Loan Documents”):

(i)            the Completion Guaranty;

(ii)           the Corporate Guaranty;

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(iii)          the Sponsor Technology License Agreement;

(iv)          the Sponsor Technology Escrow Agreement; and

(v)           all other documents, certificates and instruments required to be delivered in connection with any of the foregoing documents.

(e)           Security Documents.  Each of the following documents and all other contracts and documents entered into prior to, on, or after the Financial Closing Date that provide any Lien, charge or security interest to the Secured Parties (or any of them) to secure the Secured Obligations (the “Security Documents”):

(i)            Asset Pledge Documents.  Each of the following documents and all other contracts and documents that provide any Lien, charge or security interest to the Secured Parties (or any of them) on the assets of the Borrower to secure the Secured Obligations (the “Asset Pledge Documents”):

(A)          the Mortgage;

(B)           the Security Agreement;

(C)           the Account Control Agreements;

(D)          the Collateral Assignment;

(E)           to the extent not included in the Mortgage or Security Agreement, agreements pledging all other personal property and real property interests of the Borrower, including all governmental approvals, licenses and permits for the Project, all Project Accounts, all insurance policies maintained by the Borrower or otherwise related to the Project, all agreements, leasehold or other property interests relating to the Project, and all related fixtures, easements, rights-of-way and licenses, all intellectual property rights of the Borrower, and general intangibles and goodwill; and

(F)           all other agreements and instruments, if any, necessary to create a first-priority perfected security interest under applicable law in the Collateral, subject to Permitted Liens.

(ii)           Equity Pledge Agreement.  The Equity Pledge Agreement, pursuant to which the Equity Owners of the Borrower will pledge to the Administrative Agent in its capacity as the Collateral Agent for the benefit of the Secured Parties all of their respective right, title and interest in the Pledged Equity Interests; and

(iii)          Consent and Agreement.  The Consent and Agreement among the Sponsor, the Borrower and the Collateral Agent whereby the Sponsor consents to the assignment to the Collateral Agent of the Borrower’s interest in the Intercompany Project Documents pursuant to the terms of the Collateral Assignment (the “Direct Agreement”).

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(f)            Environmental Indemnity Agreement.  The Environmental Indemnity Agreement made by the Borrower in favor of the Administrative Agent in its capacity as the Collateral Agent and the Indemnified Parties (as defined therein).

4.1.2                        Project Documents.

The Loan Servicer shall have received a copy of a fully executed original of each of the following documents, each of which shall be in form and substance satisfactory to each Relevant Credit Party, and certified by the Borrower that (x) such copy is a true, correct and complete copy of such document (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters), (y) such document has been duly executed and delivered by the parties thereto and is in full force and effect (i) against the Borrower and (ii) against each other party thereto except, in the case of this clause (ii), for instances that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, and (z) to the Borrower’s Actual Knowledge, no party to such document is, or but for the passage of time or giving of notice or both will be, in breach of any obligation thereunder:

(a)           Land Documents.  The deed conveying title to the Project Site to the Borrower and easements, licenses, and covenants, conditions and restrictions in connection with the Project Site, and any and all other documents affecting an interest in or right to use the Project Site (the “Land Documents”).

(b)           Project Documents.  Each of the following documents and all other contracts required for construction, procurement, installation and improvement of land, buildings, equipment and manufacturing facilities for the Project, including related material subcontracts:

(i)            the EPC Agreement;

(ii)           the Engineering and Architectural Services Agreement; and

(iii)          the Permitting and Engineering Management Agreement.

(c)           Operating Documents.  Each of the following documents and all other contracts required for the operation and maintenance of the Project (the “Operating Documents”):

(i)            the NYISO Membership Agreement;

(ii)           the O&M Agreement;

(iii)          the Technology License Agreement;

(iv)          the Technology Escrow Agreement;

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(v)           the Administrative Services Agreement; and

(vi)          the Flywheel Repair Agreement.

4.1.3                        Advance Schedule.

At least fifteen (15) days prior to the Financial Closing Date (or such shorter period as may be satisfactory to the Loan Servicer), the Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party in consultation with the Lender’s Engineer, a copy of the Advance Schedule, certified by the Borrower and the Sponsor, and certified by the Lender’s Engineer as being consistent with the Financial Plan and the Project Budget and consistent with the achievement of Physical Completion within the time period specified in the Project Milestone Schedule as provided in a Lender’s Engineer Certificate, which shall be the Borrower’s reasonable estimate in all material respects, based on all facts and circumstances existing and Known to the Borrower and the Sponsor, of the timing and amount of proposed Advances and Equity Contributions for the Project (showing the total Advances expected in each calendar month).

4.1.4                        Financial Plan; Base Case Projections; Project Milestone Schedule and Project Budget.

The Lender’s Engineer and the Loan Servicer shall have received at least ten (10) days prior to the Financial Closing Date (or such shorter period as may be satisfactory to the Loan Servicer) the following items (unless, with respect to any of the following items, DOE shall have notified the Borrower that such item or items must only be received by the Lender’s Engineer and not by the Loan Servicer), each in form and substance satisfactory to each Relevant Credit Party in consultation with the Lender’s Engineer, and certified by the Borrower and the Sponsor, and certified by the Lender’s Engineer as provided in a Lender’s Engineer Certificate, which shall be the Borrower’s reasonable estimate of the information contained therein:

(i)            the Financial Plan (Exhibit A1), together with evidence that the DOE Credit Facility Commitment, when combined with other funds committed to the Project, including the Base Equity, will be available and sufficient to carry out the Project;

(ii)           the Base Case Projections, including a computer file containing the Base Case Projections and the underlying models and assumptions and explanations thereto;

(iii)          the Project Milestone Schedule;

(iv)          the Project Budget; and

(v)           a detailed description, with supporting documents as have been reasonably requested not less than three (3) Business Days prior to the Financial Closing Date, of Development Costs incurred to date and a Development Costs Statement summarizing those

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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costs that the Borrower seeks credit as Approved Pre-Closing Equity Credit to be applied toward Base Equity and that are to be reviewed by the Lender’s Engineer.

4.1.5                        Financial Statements.

At least fifteen (15) Business Days prior to the Financial Closing Date (or such shorter period as may be satisfactory to the Loan Servicer), the Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, the most recent audited (except in the case of the Borrower) and unaudited Financial Statements, together with a Financial Officer Certificate, from each of the Borrower and the Sponsor.

4.1.6                        Update of Conditional Commitment.

Either (i) the Loan Servicer shall have determined that there are not any material changes to the terms and conditions of the term sheet, or (ii) at least thirty (30) days prior to the Financial Closing Date, the Loan Servicer shall have received, in form and substance satisfactory to DOE, a written summary of such material changes.

4.1.7                        Update of Credit Rating.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, a credit rating of the Borrower from the Rating Agency dated no later than thirty (30) days prior to the Financial Closing Date, based on the updated commitment of DOE reflected in the DOE Credit Facility Documents and assuming that the Project does not benefit from the DOE Guarantee.

4.1.8                        Coverage Ratios.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, a certificate setting forth calculations, consistent with the Base Case Projections delivered pursuant to Section 4.1.4 indicating that throughout the term of the DOE Credit Facility a minimum annual Debt Service Coverage Ratio of 1.30 to 1 for the period after the Project Completion Date is expected to be achieved.

4.1.9                        Pre-Closing Equity; No Unapproved Charges for Budgeted Overrun Contingencies.

The Loan Servicer shall have received the following items, each in form and substance satisfactory to each Relevant Credit Party in consultation with the Lender’s Engineer:

(i)            the Development Costs Statement, certified by the Lender’s Engineer;

(ii)           certification from the Borrower and the Lender’s Engineer that the amounts reflected in the Approved Pre-Closing Equity Credit (A) are in an amount not greater than $18,882,211, and (B) have been applied in accordance with the Project Budget only for

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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Eligible Base Project Costs, and that no amounts in the Project Budget have been applied to Ineligible Base Project Costs; and

(iii)          certification from the Borrower and the Lender’s Engineer that no changes have been made to the line item for Overrun Contingencies in the Project Budget.

4.1.10                  Debt Repayment.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, evidence of repayment of any existing Indebtedness of the Borrower, other than Indebtedness permitted hereunder and release of associated Liens encumbering any Collateral, other than Permitted Liens.

4.1.11                  [Reserved.]

4.1.12                  Consents and Approvals.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, (i) certification from the Borrower, together with such other evidence as any Relevant Credit Party may request, that all Governmental Approvals and other Required Consents listed on Schedule 5.10 (except those identified on Schedule 5.10 as to be obtained at a later date), each in form and substance satisfactory to each Relevant Credit Party, have been duly obtained and are not subject to any waiting period or appeal, and (ii) a copy of each such Governmental Approval or other Required Consent, certified by the Borrower as being true and complete as of the date of such certification.

4.1.13                  Project Plans.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, updated Project Plans, certified by Lender’s Engineer as being satisfactory and sufficient for the construction of the Improvements on the Project Site.

4.1.14                  Lender’s Engineer Report.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, the Lender’s Engineer Report addressing (a) an analysis of the Project Plans, (b) an analysis of the roles and capabilities of all Major Project Participants and (c) such other matters as any Relevant Credit Party may reasonably request.

4.1.15                  Consultants’ and Advisors’ Certificates.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, the following certificates, each dated the Financial Closing Date:

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(i)            Lender’s Engineer Certificate.  A Lender’s Engineer Certificate regarding the matters required to be certified by it as set forth in this Section 4.1 and such other matters specified in the form attached as Exhibit D1;

(ii)           Insurance Advisor and Insurance Consultant Certificates.  An Insurance Advisor Certificate in a form acceptable to the Loan Servicer and an Insurance Consultant Certificate regarding the matters specified in Section 4.1.27 and in the form attached as Exhibit F1; and

(iii)          Plans and Budgets; Accountant Letter.  Each of (i) a certification from the Lender’s Engineer as to the Financial Plan and the Project Budget, (ii) a certification from the Borrower’s Accountant relating to the tax assumptions in the Base Case Projections, and (iii) a certification from the Lender’s Engineer as to its independent review of the technical inputs to the Base Case Projections.

4.1.16                  Fee Arrangements for Independent Consultants.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, evidence that the Periodic Expenses of any Independent Consultants incurred and invoiced prior to the Financial Closing Date (other than Periodic Expenses not then due) have been paid in full.

4.1.17                  Project Document Price.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party in consultation with the Lender’s Engineer, certification from the Borrower and the Lender’s Engineer that the price set forth in each Project Document has not been increased from the price as of the Common Agreement Date.

4.1.18                  Payment and Performance Bonds.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, payment and performance bonds covering all construction work to be performed under the EPC Agreement after the Financial Closing Date and naming the Borrower and the Collateral Agent as co-obligees.

4.1.19                  Performance Targets.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party in consultation with the Lender’s Engineer, a copy of the Project Facility Performance Targets, together with a certification from the Borrower and the Lender’s Engineer that such Project Facility Performance Targets are achievable.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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4.1.20                  Market Studies.

The Loan Servicer shall have received a report from National Economic Research Advisors Incorporated in form and substance satisfactory to each Relevant Credit Party.

4.1.21                  Security Interests.

(a)                                  Security Interests.  The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, evidence that all security interests in the Collateral Security intended to be created by the Security Documents in effect on the Financial Closing Date have been or will be created and, where appropriate, been registered or otherwise perfected to create a first priority perfected security interest and Lien, subject only to Permitted Liens, over the Collateral Security in favor of the Administrative Agent in its capacity as the Collateral Agent.  Each such Lien (i) to the extent it arises or attaches under the Uniform Commercial Code of any jurisdiction in the United States, shall be valid and enforceable and shall constitute a first priority perfected security interest (subject to Permitted Liens), and (ii) in all other cases, shall be enforceable against the Borrower, any subsequent lienor (including a judgment lienor), any junior lienor, or any transferee for or not for value, in bulk, by operation of law, for the benefit of creditors, or otherwise.

(b)                                 Filings.  The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, evidence satisfactory to it that (i) each of the Security Documents has been or will be duly filed and registered or recorded in every jurisdiction in which such filing and registration or recording is necessary to make valid and effective the Liens intended to be created thereby and the rights of the Secured Parties thereunder, (ii) all fees and duties in connection with such registration (x) have been paid in full, (y) are to be paid with the proceeds of the requested Advance, or (z) are to be paid by other satisfactory arrangements.

(c)                                  Collateral Agent Certificate.  The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, a Collateral Agent Certificate as to all matters as are required to be certified by the Administrative Agent in its capacity as the Collateral Agent pursuant to this Section 4.1.

4.1.22                  Authority and Incumbency of Major Project Participants.

The Loan Servicer shall have received, all in form and substance satisfactory to each Relevant Credit Party, certified copies of standard corporate, limited liability company, partnership, or trust formation documents for each of the Major Project Participants, including certified copies of organizational documents, good standing certificates, incumbency certificates and resolutions, and any other such documents as any Relevant Credit Party may have reasonably requested, with respect to approval of (i) such Major Project Participant’s participation in the Project, (ii) to the extent applicable, the financing therefor and the granting of Liens, and (iii) the execution, delivery and performance by such Major Project Participant of the Transaction Documents (including a Direct Agreement) to which it is party.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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4.1.23                  Borrower Certificate; Sponsor Certificate.

The Loan Servicer shall have received (i) a Borrower Certificate regarding the matters required to be certified by it as set forth in this Section 4.1 and such other certifications as are required to be made to the Credit Parties by the Borrower as of the Financial Closing Date under the DOE Credit Facility Documents, and (ii) a Sponsor Certificate regarding the matters required to be certified by it as set forth in this Section 4.1 and such other certifications as are required to made to the Credit Parties by the Sponsor as of the Financial Closing Date under the DOE Credit Facility Documents, and (iii) a Holdings Certificate regarding the matters required to be certified by it as set forth in this Section 4.1 and such other certifications as are required to made to the Credit Parties by Holdings as of the Financial Closing Date under the DOE Credit Facility Documents.

4.1.24                  Major Project Participant Certificates.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, a Major Project Participant Certificate from each Major Project Participant regarding familiarity with and enforceability of documents, absence of defaults, validity of representations and warranties and other customary provisions.

4.1.25                  Legal Opinions.

The Loan Servicer and the Administrative Agent in its capacity as the Collateral Agent shall have received legal opinions from Edwards Angell Palmer & Dodge LLP or other legal counsel acceptable to each Relevant Credit Party, dated the Financial Closing Date and in form and substance satisfactory to each Relevant Credit Party, with respect to the laws of the jurisdictions governing the Transaction Documents to which each of the Borrower, Holdings, the Sponsor, and any Sponsor Affiliate is a party and the laws of the jurisdictions of organization of the Borrower, Holdings, the Sponsor, and any Sponsor Affiliate and such legal opinions shall include, but may not be limited to the following: (i) due authorization, execution, delivery and enforceability of Transaction Documents to which the Borrower, Holdings, the Sponsor, and any Sponsor Affiliate is a party, (ii) perfection of security interests, (iii) other than with respect to permits and approvals that are not necessary to be obtained until a later date, receipt of all governmental permits and approvals necessary to (1) construct and operate the Project, (2) enter into financing arrangements with respect to the Project, and (3) enter into the applicable Transaction Documents, and that such permits and approvals are in full force and effect and all applicable appeal periods have expired, (iv) that none of the Credit Parties will be regulated as an electric corporation or public utility under the United States or New York law solely as a result of entering into Transaction Documents, and (v) absence of conflicts with law, agreements or organizational documents.

4.1.26                  Taxes; Costs and Expenses.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, certification from the Borrower, and such other evidence as any Relevant

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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Credit Party may request, that all required taxes, all Periodic Expenses, and all recordation and other costs, fees and Periodic Expenses invoiced and due in connection with the execution, delivery, filing, registration, or performance of the Transaction Documents or the perfection of the security interests in the Collateral Security have been paid in full.

4.1.27                  Evidence of Insurance.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, certification from the Borrower and the Insurance Consultant certificates from insurers, and such other evidence as any Relevant Credit Party may request (i) that insurance coverage for the Project satisfies the requirements for Required Insurance as set forth on Schedule 6.3(b), (ii) that such insurance coverage is reasonable for the Project, and (iii) that the applicable insurance policies are in full force and effect.

4.1.28                  Project Accounts.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, certification from the Administrative Agent in its capacity as the Collateral Agent that each of the Project Accounts shall have been established in accordance with the provisions of Appendix A hereof.

4.1.29                  Accounting Systems.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party in consultation with the Lender’s Engineer, a report certified by a Financial Officer of the Borrower describing the Borrower’s accounting systems, controls, and management information systems and reasonably demonstrating that they are satisfactory for purposes of providing information necessary for financial reporting in accordance with GAAP.

4.1.30                  Lobbying Certification.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, evidence that the Borrower has provided a Standard Form-LLL “Disclosure Form to Report Lobbying” as required.

4.1.31                  Land Acquisition; Title to Project Site.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, (i) evidence of the Borrower’s ownership of unencumbered fee title (subject only to Permitted Liens), under the relevant laws of the State of New York of the Project Site as are necessary for the development of the Project, (ii) the ALTA Survey with respect to the Project Site, and (iii) one or more ALTA loan policies (or similar policy form) issued by the Title Company, with such coinsurers or reinsurers as may be reasonably acceptable to DOE, in the aggregate amount of not less than $9,000,000 insuring as of the Financial Closing Date that (y) the Building Loan Mortgage creates a first and prior Lien on the Project Site subject only to

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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Permitted Liens and (z) the Project Loan Mortgage creates a second Lien on the Project Site subject only to Permitted Liens and the Building Loan Mortgage.

4.1.32                  Intellectual Property.

The Loan Servicer shall have received, in form and substances satisfactory to each Relevant Credit Party, evidence that the Borrower and the Sponsor own all intellectual property rights necessary for the operation of the Project.

4.1.33                  Appraisals.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, an updated listing and description of assets associated, or to be associated, with the Project and any other asset that will serve as Collateral, including appropriate data as to the value of the assets and the useful life of any physical assets, including with respect to real property assets listed, delivery of an appraisal that is consistent with the “Uniform Standards of Professional Appraisal Practice,” promulgated by the Appraisal Standards Board of the Appraisal Foundation, and performed by Capstone Appraisal Group, Inc.

4.1.34                  Environmental.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, (i)  a Phase I environmental site assessment of the Project Site and reliance letter in connection therewith, (ii) an updated Phase I environmental site assessment of the Project Site, (iii) a limited Phase II environmental site assessment of the Project Site, (iv) a Finding of No Significant Impact with respect to the Project Site, and (v) evidence of satisfaction of any additional environmental requirements (including required mitigations) in accordance with applicable Environmental Laws.

4.1.35                  Earthquake Risk Report.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party in consultation with the Lender’s Engineer, (i) an earthquake risk report prepared by an independent geologist satisfactory to each Relevant Credit Party and approved by the Lender’s Engineer setting forth an acceptable assessment of the earthquake risk for the Project Site and any other property where the Project Facility will be located and recommendations for mitigation of earthquake risk, and (ii) certification from the Borrower and the Lender’s Engineer, together with such other evidence as any Relevant Credit Party may request, that any recommendations for mitigation of earthquake risk have been adequately addressed in the Project Plans.

4.1.36                  Utility Services.

Except for the receipt of a fully executed original of the Interconnection Agreement in accordance with Section 4.2.1 hereof, the Loan Servicer shall have received, in form and

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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substance satisfactory to each Relevant Credit Party in consultation with the Lender’s Engineer, certification from the Borrower and the Lender’s Engineer, together with such other evidence as any Relevant Credit Party may request, that (i) arrangements reflected in the Project Milestone Schedule and the Project Budget have been made under the Project Documents or are otherwise available to the extent required in Section 5.25 for the provision of all services, materials and utilities necessary for the construction, startup, commissioning and shakedown of the Project, and (ii) arrangements reflected in the Base Case Projections have been made or can be made under the Operating Documents or are otherwise available to the extent required in Section 5.25 for the provision of all services, materials and utilities necessary for the operation and maintenance of the Project as contemplated by the Principal Project Documents.

4.1.37                  [Reserved.]

4.1.38                  Conditions Precedent in Transaction Documents.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, certification from the Borrower, together with such other evidence as any Relevant Credit Party may request, that all conditions precedent required to be satisfied by any Major Project Participant under any Transaction Document as of the Financial Closing Date have been satisfied.

4.1.39                  DOE Requirements.

All DOE Requirements required to have been satisfied as of the Financial Closing Date shall have been satisfied, including the payment of all applicable DOE fees.

4.1.40                  Confirmation of Non-Disclosure and Assignment of Inventions Agreements.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, certification from the Borrower and the Sponsor, together with such other evidence as any Relevant Credit Party may request, of the existence of valid and binding non-disclosure and assignment of invention agreements with all employees of the Borrower.

4.1.41                  Funding of Base Equity Amount; Equity Commitments.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, evidence in form and substance satisfactory to it that an amount equal to (x) the Base Equity Commitment, less (y) the Approved Pre-Closing Equity Credit has been deposited in the Equity Funding Account.

4.1.42                  Due Diligence Review.

The Loan Servicer shall have received from each Relevant Credit Party confirmation that it has completed its due diligence review of the Project and all other matters related thereto and that the results thereof are satisfactory to such Relevant Credit Party.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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4.1.43                  Review and Payment of Credit Subsidy.

The Loan Servicer shall have received confirmation, in form and substance satisfactory to each Relevant Credit Party, that (i) OMB has reviewed and approved DOE’s calculation of the Credit Subsidy Cost for the DOE Guarantee as of the Financial Closing Date, and (ii) DOE has received payment in full of the Credit Subsidy Cost in accordance with the Program Requirements.

4.1.44                  No Judgment Liens.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, confirmation that that the Borrower does not have a judgment Lien against any of its property for a debt owed to the United States of America or any other creditor.

4.1.45                  Recovery Act Requirements.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, a Borrower Certificate stating that the Borrower is in compliance with and has taken all necessary steps to be able to timely comply in all material respects with (A) its reporting obligations under Section 6.29(a) with respect to the Recovery Act and (B) the requirements set forth in Section 6.30 and Exhibit A4.

4.1.46                  Application Supplement.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, the Application Supplement.

4.1.47                  Commencement of Construction.

Commencement of Construction shall have occurred on or before the Financial Closing Date (such date, the “Commencement of Construction Date”).  The Borrower shall deliver to DOE a Borrower Certificate dated as of the Financial Closing Date that Commencement of Construction in respect of the Project has occurred on or before the Commencement of Construction Date, and, if requested by DOE, Lender’s Engineer shall provide confirmation to DOE that Commencement of Construction has occurred on or before the Commencement of Construction Date.

4.1.48                  Material Adverse Effect.

(a)           The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, certification from the Borrower, together with such other evidence as it may request, that since June 29, 2009 no event has occurred with respect to the Project or any Major Project Participant that would reasonably be expected to have a Material Adverse Effect.  With respect to financial matters related to the Sponsor, such certification may be based upon the most recent annual Financial Statements of Sponsor.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(b)                                 Since June 29, 2009, no event has occurred that would reasonably be expected to have a Material Adverse Effect.

4.1.49                  Central Contractor Registration.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, evidence that the Borrower has registered in the United States federal government Central Contractor Registration (“CCR”) database.

4.1.50                  Patriot Act.

The Loan Servicer shall have received at least ten (10) Business Days prior to the Financial Closing Date, all documentation and other information from the Borrower, Holdings and Sponsor required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act.

4.1.51                  Fees and Expenses.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, confirmation that all DOE Credit Facility Fees and Periodic Expense then due, including, without limitation, (i) the balance of the DOE Credit Facility Fee in an amount equal to 0.8% of the maximum principal amount of the DOE Credit Facility and (ii) the initial DOE Maintenance Fee in the amount of $25,000, have been paid in full, subject to § 609.10(c) of the Applicable Loan Guarantee Requirements.

4.1.52                  No Litigation.

There shall be no pending or threatened (in writing) action, suit, or proceeding, or investigation by a Governmental Authority, of any kind, including any action or proceeding of or before any Governmental Authority, that (i) relates to the Project or to any transactions contemplated by any of the Transaction Documents or (ii) to which the Borrower, the Sponsor or, to the Borrower’s Actual Knowledge, any other Major Project Participant is a party, that, in each case, either singly or in the aggregate, has, or could reasonably be expected to have, a Material Adverse Effect.  The Loan Servicer shall have received, in form and substance satisfactory to the Loan Servicer, all such information as it shall have reasonably requested in respect of any pending or threatened action, suit, or proceeding, or investigation by a Governmental Authority, of any kind, including any action or proceeding of or before any Governmental Authority, that (i) relates to the Project or to any transactions contemplated by any of the Transaction Documents or (ii) to which the Borrower, the Sponsor or any other Major Project Participant is a party.

4.2.                            Conditions Precedent to Advances.

(a)                                  The obligation of FFB to make, and DOE to guarantee, each Advance (including the Initial Advance) under the DOE Credit Facility is subject to the prior satisfaction (or waiver

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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in writing) as determined by each Relevant Credit Party in its sole discretion of each of the conditions precedent set forth in this Section 4.2 (the “Advance Conditions Precedent”) as of the date of submission of the applicable Master Advance Notice (the “Advance Notice Date”) and to their continued satisfaction on the Requested Advance Date for such Advance.

(b)           The Borrower may obtain one or more Equity Advances on or before October 15, 2010 upon the satisfaction (or waiver in writing) as determined by each Relevant Credit Party in its sole discretion of each of the Advance Conditions Precedent (except for the Advance Condition Precedent set forth in Section 4.2.1 hereof) as the Advance Notice Date and as of the Requested Advance Date for such Equity Advance.

4.2.1                        Project Documents.

As conditions to the Initial Advance, the Loan Servicer shall have received, no later than October 15, 2010, each of the following: (a) a copy of a fully-executed original of each of the following documents, each of which shall be in form and substance satisfactory to the Loan Servicer, (b) a certification by the Borrower that (i) such copy is a true, correct and complete copy of such document (including all schedules, exhibits, attachments, supplements and amendments thereto and any related protocols or side letters), (ii) such document has been duly executed and delivered by the parties thereto and is in full force and effect, and (iii) to the Borrower’s Actual Knowledge, no party to such document is, or but for the passage of time or giving of notice thereunder, or both, would be in breach of any obligation thereunder and (c) such other supporting documents and/or opinions as may be required by the Loan Servicer in connection therewith:

(a)           the Interconnection Agreement;

(b)           [*****];

(c)           [*****];

(d)           [*****].

Such other supporting documents may include, without limitation (i) evidence satisfactory to the Loan Servicer that the Collateral Agent has a perfected security interest in all of the Borrower’s right, title and interest in and to the Interconnection Agreement and the [*****] and (ii) an opinion of counsel in form and substance satisfactory to the Loan Servicer as to such perfection and the due authorization, execution, delivery and enforceability against the Sponsor or the Borrower, as applicable, of the Interconnection Agreement, the [*****].

4.2.2                        Approval of Updated Advance Schedule.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party in consultation with the Lender’s Engineer:

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(i)            certification from the Borrower and the Lender’s Engineer that the updated Advance Schedule provided by the Borrower, including the estimates set forth therein, of the timing and amount of Advances required in connection with the construction and financing of the Project is consistent with the Project Budget, consistent with the achievement of Physical Completion within the time period specified in the Project Milestone Schedule and consistent with the limitation set forth in Section 2.1(c) hereof; and

(ii)           certification from the Borrower that the proceeds of all Advances to be made with respect to the updated Advance Schedule will be needed for Eligible Project Costs that have been incurred or by the Requested Advance Date will be incurred, together with a description in reasonable detail of such Eligible Project Costs.

4.2.3                        Project Progress Report.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party in consultation with the Lender’s Engineer:

(a)           the most recent Project Progress Report, certified by the Borrower and the Lender’s Engineer as being accurate and complete in all material respects based upon the Borrower’s good faith estimates of the information contained therein with respect to the following:

(i)            Construction and installation of the Project are proceeding in accordance with the Project Milestone Schedule and the Project Budget, or if such construction and installation are not proceeding in accordance with the Project Milestone Schedule and the Project Budget, then the Project Progress Report shall describe any variances and state that the variances would not reasonably be expected to have a Material Adverse Effect;

(ii)           Construction and installation of the Project are expected to be completed on or before the Anticipated Physical Completion Date;

(iii)          certification by the Borrower and the Lender’s Engineer that Total Funding Available is sufficient to pay all remaining Total Project Costs (including Interest During Construction, DOE Credit Facility Fees, Periodic Expenses, and identified Cost Overruns); and

(iv)          evidence that as of the date of such Project Progress Report (A) each Construction Contractor and the Operator shall have irrevocably waived and released all Liens, statutory or otherwise, that any of them may have or acquire on the Collateral Security with respect to work completed prior to the last submission for payment, except for Liens in favor of any Person in an aggregate amount for such Person [*****]; and (B) all unpaid balances that are due or unsettled claims with any Construction Contractor, if any, have been adequately paid and that those being contested or negotiated in good faith are provisioned to the reasonable satisfaction of the Loan Servicer; and

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(b)           certification from the Borrower and the Lender’s Engineer that as of the date of submission of the applicable Master Advance Notice:

(i)            there is no reason Known to Borrower to believe that anything is incorrect or misleading in any material respect in the most recent Project Progress Report; and

(ii)           nothing has occurred since the date of the most recent Project Progress Report or the date of the Lender’s Engineer’s most recent site visit, whichever is later, that could reasonably be expected to prevent construction and installation of the Project within the Project Milestone Schedule and the Project Budget.

4.2.4                        Fees and Expenses.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, confirmation that all DOE Credit Facility Fees and Periodic Expenses then due (x) have been paid in full, (y) solely with respect to Periodic Expenses then due, are to be paid with the proceeds of the requested Advance, or (z) are to be paid by other satisfactory arrangements, subject, in each case, to §609.10(c) of the Applicable Loan Guarantee Requirements.

4.2.5                        Consents and Approvals.

The Loan Servicer shall have received, in form and substance satisfactory to the Loan Servicer, (i) certification from the Borrower, together with such other evidence as the Loan Servicer may reasonably request prior to the Requested Advance Date or as may be required under the Transaction Documents, that all consents and approvals of third Persons as may be required in connection with the proposed Advances and all Governmental Approvals required as of the Advance Notice Date have been duly obtained and are in full force and effect and are not under appeal or subject to other proceedings or unsatisfied conditions that could reasonably be expected to result in a material modification or cancellation thereof, and (ii) copies of all material Governmental Approvals not previously delivered, certified by the Borrower as being true and complete in all material respects.

4.2.6                        Insurance.

The Loan Servicer shall have received, in form and substance satisfactory to the Loan Servicer, (i) certification from the Borrower and the Insurance Consultant that all Required Insurance is in place, in good standing and in full force and all premiums due and payable thereon as of such date (x) have been paid in full, (y) are to be paid with the proceeds of the requested Advance, or (z) are to be paid by other satisfactory arrangements, and (ii) certificates or policies with respect to any additional renewal or substitute insurance obtained by the Borrower since the previous Advance Notice Date, designating (or evidencing the designation of) the Administrative Agent in its capacity as the Collateral Agent as loss payee, where appropriate, certified by the Borrower and the Insurance Consultant as being true and complete.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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4.2.7                        Proceedings and Other Documents.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, (i) certification from the Borrower that all corporate and similar proceedings concluded since the last Advance Notice Date are in proper form and substance, (ii) original counterparts or copies certified by the Borrower of all Additional Project Documents entered into since the last Advance Notice Date, and (iii) such other evidence as any Credit Party may reasonably request prior to the Requested Advance Date in order to evidence the consummation of the transactions contemplated thereby and compliance with the Advance Conditions Precedent.

4.2.8                        Representations and Warranties; No Default.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, certification from the Borrower, and such other evidence that it may reasonably request, that the representations and warranties in the Loan Documents (other than those that speak only as to an earlier date) are true and correct in all material respects and no Event of Default or Potential Default has occurred and is continuing.

4.2.9                        No Change in Circumstances.

The Loan Servicer shall have received, in form and substance satisfactory to the Loan Servicer in consultation with the Lender’s Engineer, certification from the Borrower and the Lender’s Engineer that no changes to the technical requirements of the existing Governmental Approvals has occurred, that has had or could reasonably be expected to have a Material Adverse Effect.

4.2.10                  Performance Metrics.

The Loan Servicer shall have received, in form and substance satisfactory to the Loan Servicer in consultation with the Lender’s Engineer, a certification from the Borrower and the Lender’s Engineer that the Borrower has achieved the Project Facility Performance Targets applicable to such Advance Notice Date.

4.2.11                  Closing Certificates.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party:

(i)            Borrower Certificate.  A Borrower Certificate regarding the matters required to be certified by it as set forth in this Section 4.2 in the form attached hereto as Exhibit C2;

(ii)           Lender’s Engineer Certificate.  A Lender’s Engineer Certificate regarding the matters required to be certified by it as set forth in this Section 4.2 in the form attached hereto as Exhibit D2; and

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(iii)          Insurance Consultant Certificate.  An Insurance Consultant Certificate regarding the matters required to be certified by it as set forth in this Section 4.2 in the form attached hereto as Exhibit F2.

4.2.12      Project Budget.

The Loan Servicer shall have received, in form and substance satisfactory to the Loan Servicer, certification from the Borrower and the Lender’s Engineer that (i) there have been no changes to the Project Budget since the previous Advance Notice Date, except for Approved Project Changes, (ii) the aggregate amount expended for each type of Project Cost does not exceed the aggregate amount budgeted for such cost in the Project Budget, including budgeted Overrun Contingencies, except for Approved Project Changes and (iii) the sum of (A) the unadvanced proceeds of the DOE Credit Facility and (B) the amount on deposit in the Base Equity Account and Overrun Equity Account is sufficient to pay all remaining Total Project Costs.

4.2.13      Payment and Performance Bonds.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, payment and performance bonds covering all construction work to be performed under the EPC Agreement after the Financial Closing Date and naming the Borrower and the Collateral Agent as co-obligees.

4.2.14      No Violation of Law.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, certification from the Borrower, together with such other evidence as it may request, that the Advance will not result in a violation of any law, any Transaction Document, any governmental approval, or any other agreement or consent to which the Borrower is a party or any judgment or approval to which it is subject.

4.2.15      Material Adverse Effect.

(a)           The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, certification from the Borrower, together with such other evidence as it may request, that since June 29, 2009 no event has occurred with respect to the Project or any Major Project Participant that would reasonably be expected to have a Material Adverse Effect.  With respect to financial matters relating to the Sponsor, such certification may be based upon the most recent annual Financial Statement of Sponsor.

(b)           Since June 29, 2009 no event has occurred that would reasonably be expected to have a Material Adverse Effect.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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4.2.16      No Litigation.

There shall be no pending or threatened (in writing) action, suit, or proceeding, or investigation by a Governmental Authority, of any kind, including any action or proceeding of or before any Governmental Authority, that (i) relates to the Project or to any transactions contemplated by any of the Transaction Documents or (ii) to which the Borrower, the Sponsor or, to the Borrower’s Actual Knowledge, any other Major Project Participant is a party, that, in each case, either singly or in the aggregate, has, or could reasonably be expected to have, a Material Adverse Effect.  The Loan Servicer shall have received, in form and substance satisfactory to the Loan Servicer, all such information as it shall have reasonably requested in respect of any pending or threatened action, suit, or proceeding, or investigation by a Governmental Authority, of any kind, including any action or proceeding of or before any Governmental Authority, that (i) relates to the Project or to any transactions contemplated by any of the Transaction Documents or (ii) to which the Borrower, the Sponsor or any other Major Project Participant is a party.

4.2.17      No Change in Law

The Loan Servicer shall have received, in form and substance satisfactory to the Loan Servicer, certification from the Borrower, together with such other evidence as it may request, that, since the Common Agreement Date, no change in law or any other event has occurred that would reasonably be expected to have a Material Adverse Effect.

4.2.18      Compliance with Covenants.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, certification from the Borrower, together with such other evidence as it may request, that the Borrower is in compliance with its obligations under the Loan Documents, including all affirmative covenants and negative covenants, and has furnished all information requested under the Loan Documents.

4.2.19      Title Continuation.

The Loan Servicer shall have received, in form and substance satisfactory to the Loan Servicer, a title continuation dated no earlier than one day prior to the Requested Advance Date showing no Liens against the Project, except for Permitted Liens and such other Liens as are satisfactory to DOE in its sole discretion.

4.2.20      Governmental Requirements.

The Loan Servicer shall have received, in form and substance satisfactory to the Loan Servicer, copies of all material Governmental Approvals not previously delivered and required for construction or operation of the Project and such other Governmental Approvals as DOE may reasonably request prior to the Requested Advance Date or as may be required under any of the Transaction Documents.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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4.2.21      Prior Disbursements.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, evidence that the proceeds of all prior Advances have been applied as set forth in the Project Budget or as otherwise approved by DOE.

4.2.22      Additional Documents.

The Loan Servicer shall have received, in form and substance satisfactory to the Loan Servicer, such other documents, certifications or consents relating to the Project or the matters contemplated by the Transaction Documents as DOE may reasonably request prior to the Requested Advance Date.

4.2.23      Advance Request; Approved Advance Schedule.

The Loan Servicer shall have received, in form and substance satisfactory to each Relevant Credit Party, a Master Advance Notice, together with all certificates and documentation required under Section 2.3.

4.2.24      Issuance of FFB Advance Request Approval Notice.

FFB shall have received, in accordance with the DOE Credit Facility Documents, the FFB Advance Request signed by the Borrower, together with the FFB Advance Request Approval Notice signed by DOE; provided that this requirement shall not apply to Equity Advances.

4.2.25      Absence of Drawstop Notice.

The Loan Servicer shall not have received a Drawstop Notice with respect to such Advance.

4.2.26      Additional Recovery Act Requirements.

The Loan Servicer shall have received, in form and substance satisfactory to the Loan Servicer, a Borrower Certificate stating, after due inquiry as of a date not earlier than fifteen (15) Business Days prior to the relevant Advance Date, that the Borrower has timely complied in all material respects with (A) its reporting obligations under Section 6.29(a) with respect to the Recovery Act, and (B) the requirements set forth in Section 6.30 and Exhibit A4 with respect to the Davis-Bacon Act.

ARTICLE 5

REPRESENTATIONS AND WARRANTIES

The Borrower makes all of the following representations and warranties to and in favor of each Credit Party as of (i) the Financial Closing Date, (ii) each Advance Notice Date, (iii) each Advance Date and (iv) the Project Completion Date, except as such representations and

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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warranties relate to an earlier date, and all of these representations and warranties shall survive the Financial Closing Date.

5.1.         Organization.

The Borrower (a) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, (b) is duly qualified to do business and in good standing in the State of New York and in each other jurisdiction where the failure so to qualify would reasonably be expected to have a Material Adverse Effect, and (c) has all requisite power and authority to (i) own or hold under lease and operate the property it purports to own or hold under lease, (ii) carry on its business as now being conducted and as now proposed to be conducted in respect of the Project, except for Governmental Approvals that are not necessary to be obtained until a later date, (iii) incur Indebtedness and create Liens on its properties, and (iv) execute, deliver, perform and observe the terms and conditions of each of the Transaction Documents to which it is a party.

5.2.         Authorization; No Conflict.

The Borrower has duly authorized, executed and delivered the Loan Documents and the other Transaction Documents to which it is a party, and neither its execution and delivery thereof nor its consummation of the transactions contemplated thereby nor its compliance with the terms thereof (a) does or will contravene its Organizational Documents or any other Governmental Rules, (b) does or will contravene or result in any breach or constitute any violation of any Governmental Judgment, (c) does or will contravene or result in any breach or constitute any default under, or result in or require the creation of any Lien upon any of its revenues, properties or assets under any agreement or instrument to which it is a party or by which it or any of its revenues, properties or assets may be bound, except for Permitted Liens, or (d) does or will require the consent or approval of any Person other than the Required Consents and any other consents or approvals that have been obtained, and are in full force and effect, or are not necessary to be obtained until a later date.

5.3.         Legality, Validity and Enforceability.

(a)           Each Transaction Document to which the Borrower is a party is a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject to Bankruptcy Laws and general principles of equity regardless of whether enforcement is considered in a proceeding at law or in equity.

(b)           To Borrower’s Actual Knowledge, each Transaction Document is the legal, valid and binding obligation of any other party thereto (other than the Sponsor and Holdings), enforceable against such party in accordance with its terms, subject to Bankruptcy Laws and general principles of equity regardless of whether enforcement is considered in a proceeding at law or in equity.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(c)           Each Transaction Document to which the Sponsor or Holdings is a party is the legal, valid and binding obligation of the Sponsor or Holdings, as applicable, enforceable against such party in accordance with its terms, subject to Bankruptcy Laws and general principles of equity regardless of whether enforcement is considered in a proceeding at law or in equity.

5.4.         Capitalization.

All of the Equity Interests of the Borrower are owned by Holdings.  As of the Common Agreement Date, all of the Equity Interests of Holdings are owned by the Sponsor.  There are no outstanding options or rights for conversion into or acquisition, purchase or transfer of Equity Interests of the Borrower or any agreements or arrangements for the issuance by the Borrower of additional Equity Interests.  The Borrower does not have outstanding (a) any securities convertible into or exchangeable for its Equity Interests or (b) any rights to subscribe for or to purchase, or any option for the purchase of, or any agreement, arrangement or understanding providing for the issuance (contingent or otherwise) of, or any call, loan commitment or claims of any character relating to, its Equity Interests.

5.5.         Investments; Subsidiaries.

The Borrower has not made any Investments other than Permitted Investments.  The Borrower has no Subsidiaries and does not beneficially own the whole or any part of the Equity Interests of any other Person.

5.6.         Title.

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

5.7.         Leases.

Any Leases material to the Project in existence on the date of this representation and under which the Borrower is lessee are valid and subsisting, the Borrower is not in default in any material respect under any of such Leases, and the Borrower enjoys peaceful and undisturbed possession of the property subject to such Leases and the right to continue to enjoy such possession during the time when such property is necessary for the Project.

5.8.         Security Interests.

Pursuant to the Security Documents, as of the date of each Advance the Administrative Agent in its capacity as the Collateral Agent (for the benefit of the Credit Parties) has a perfected first priority Lien in the Collateral Security, subject only to the Permitted Liens.  Such security interest in the Collateral Security will, as of the Financial Closing Date and with respect to any

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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subsequently acquired property (absent a Change of Law), when so subsequently acquired, be superior and prior to the rights of all third Persons now existing or hereafter arising whether by way of mortgage, Lien, security interests, encumbrance, assignment or otherwise, except for any such rights of third Persons permitted pursuant to this Common Agreement or the Security Documents.  As of the Financial Closing Date, all documents and instruments, including the Building Loan Agreement, the Mortgage and Financing Statements, have been recorded or filed for record in such manner and in such places as are required, and all other action as is necessary shall have been taken to establish and perfect the Administrative Agent in its capacity as the Collateral Agent’s Lien in and to the Collateral Security (for the benefit of the Secured Parties) to the extent contemplated by the Security Documents.  All taxes and filing fees and Periodic Expenses that are due and payable in connection with the execution, delivery and filing or recordation of the Building Loan Agreement, the Mortgage and the Financing Statements, or the execution, issuance and delivery of the FFB Promissory Note, or the mortgaging of the mortgaged property under the Mortgage, have been paid or satisfactory arrangements have been made with the relevant Credit Parties to satisfy such obligations.

5.9.         Liens.

Except for Permitted Liens, the Borrower has not created, and is not under any obligation to create, any Lien upon any of its revenues, properties or assets.  There are no Liens on the Pledged Equity Interests, except for Permitted Liens.

5.10.       Permits; Other Required Consents.

Except as disclosed in writing by the Borrower from time to time, Schedule 5.10 to the Disclosure Letter sets forth all consents and approvals, including all Governmental Approvals, that are required to have been obtained or to be obtained by the Borrower in connection with the Transaction Documents and the Project either (x) as of the Common Agreement Date, or (y) to the Borrower’s Knowledge, at a later stage in the development of the Project (the “Required Consents”).  The Borrower has filed applications for or obtained such Required Consents required as of the date of representation and such Required Consents then required to have been obtained are in full force and effect and are not then under appeal or subject to other proceedings or unsatisfied conditions that would reasonably be expected to result in a material modification or cancellation as of such date, and Borrower has provided the Loan Servicer with copies of all such Required Consents.  The Borrower is in compliance with all such Required Consents, the non-compliance with which would reasonably be expected to have a Material Adverse Effect, including all Federal, state, and local regulatory requirements.

5.11.       Litigation, Labor Disputes.

(a)           Except as set forth on Schedule 5.11 to the Disclosure Letter (or otherwise disclosed in writing to the Loan Servicer pursuant to Section 6.1(h)(ii) following the Financial Closing Date), there is no pending or threatened (in writing) action, suit, or proceeding, or investigation by a Governmental Authority, of any kind, including any action or proceeding of or before any Governmental Authority, that (i) relates to the Project or to any transactions

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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contemplated by any of the Transaction Documents or (ii) to which the Borrower, the Sponsor or, to the Borrower’s Knowledge, any other Major Project Participant is a party.  No such pending or threatened action, suit or proceeding, either singly or in the aggregate, has, or could reasonably be expected to have, a Material Adverse Effect.

(b)           The Borrower has not failed to observe in any material respect any order of any court, arbitrator, administrative agency or other Governmental Authority that has, or could reasonably be expected to have, a Material Adverse Effect.  There is no injunction, writ, or preliminary restraining order of any nature issued by an arbitrator, court or other Governmental Authority having jurisdiction over the Borrower or the Project directing that any of the transactions provided for in any of the Transaction Documents not be consummated as herein or therein provided.

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

5.12.       Tax

(a)           The Borrower has filed all material tax returns required by Governmental Rules to be filed by it and has paid (i) all income taxes payable by it that have become due pursuant to such tax returns and (ii) all other material taxes and assessments payable by it that have become due (other than those taxes that it is contesting in good faith and by appropriate proceedings, for which reserves have been established to the extent required by GAAP).  The Borrower has paid or has provided reserves adequate in the reasonable judgment of the Borrower’s management and consistent with GAAP for the payment of all income or other material taxes imposed on it by the applicable governmental authority for all prior Fiscal Years and accrued for the current Fiscal Year to the date hereof, which reserves shall be in an amount at least equal to the full assessed amount of such tax.  The Borrower shall not be liable for, absent a Change of Law, any material tax liability in connection with the Project or the other transactions contemplated by the Transaction Documents that is not specifically reflected in the Base Case Projections as in effect on the Financial Closing Date and in the Project Budget or as reflected in the assumptions in the then applicable Operating Forecast, as the case may be.

(b)           Except for those items set forth on Schedule 5.12 to the Disclosure Letter as at the Financial Closing Date, no withholding tax are payable by the Borrower to any Governmental Authority in connection with any amounts payable by the Borrower under or in respect of the Loan Documents.

(c)           In accordance with Section 609.10(d)(21) of the Applicable Loan Guarantee Requirements, the Borrower has no delinquent federal debt, including tax liabilities, unless the delinquency has been resolved with the appropriate Governmental Authority in accordance with the standards of the Debt Collection Improvement Act.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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5.13.       Business, Indebtedness, Contracts, Etc.

The Borrower has not conducted any business other than the business contemplated by the Transaction Documents and other business related to the Project, has no outstanding Indebtedness other than the Indebtedness permitted under the Loan Documents and has no other liabilities other than those permitted under the Loan Documents, and is not a party to or bound by any contract other than those contracts permitted under the Loan Documents.

5.14.       Transactions with Affiliates.

Except as set forth on Schedule 5.14 to the Disclosure Letter or as permitted by Section 7.12, the Borrower is not a party to any contracts or agreements with, and does not have any other loan commitments to, whether or not in the ordinary course of business, any Affiliate.  The Borrower is not a party to any agreement requiring the payment of development fees.

5.15.       Compliance with Governmental Rules.

In accordance with Section 609.10(d)(20) of the Applicable Loan Guarantee Requirements, the Borrower is in compliance with, and has conducted its business, operations, assets, equipment, property, leaseholds, and other facilities in compliance with all Environmental Laws and in compliance with all other Governmental Rules the noncompliance with which could reasonably be expected to have a Material Adverse Effect and no notices of violation of any Governmental Rule have been issued, entered or received by the Borrower that have not been cured with no remaining liability to the Borrower, other than those that have been disclosed to the extent required by the terms of the Loan Documents.  Neither the Borrower, nor, to the Knowledge of Borrower, Holdings or the Sponsor is in default with respect to any Governmental Judgment which default would be reasonably expected to have a Material Adverse Effect.

5.16.       Environmental Laws.

(a)           The Borrower (x) has been issued all Governmental Approvals relating to, and (y) has received no complaint, order, directive, claim, citation or notice by any Governmental Authority (that has not been disclosed to the extent required by the Loan Documents) relating to its then-existing obligations with respect to:  (A) air emissions, (B) discharges to surface water or ground water, (C) noise emissions, (D) solid or liquid waste disposal, (E) the use, generation, storage, transportation or disposal of toxic or Hazardous Substances or wastes, or (F) other environmental, health or safety matters.

(b)           Except as set forth on Schedule 5.16 to the Disclosure Letter, neither the Borrower nor, to the Borrower’s Knowledge, any third party, has used, released, discharged, generated, manufactured, produced, stored, or disposed of in, on, under or about the Project Facility or transported thereto or therefrom, any Hazardous Substances that could reasonably be expected to have a Material Adverse Effect or material harm to environmental, health or safety matters as reasonably determined by DOE.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(c)           There is not and has not been any condition, circumstance, action, activity or event with respect to the Project, the Borrower or, to the Borrower’s Knowledge, the Project Site that could reasonably form the basis of any violation of any Environmental Law or that could reasonably be expected to have a Material Adverse Effect or material harm to environmental, health or safety matters as reasonably determined by DOE.

5.17.       Investment Company Act.

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

5.18.       Regulation of Parties.

The Borrower is not subject to the Public Utility Holding Company Act.  None of the Credit Parties shall by reason if its ownership or operation of the Project upon the exercise of remedies under the Security Documents be subject to the Public Utility Holding Company Act.

5.19.       Corrupt Practices Laws.

(a)           The Borrower, Holdings, the Sponsor, and their respective officers, directors, employees and agents have complied with all applicable Corrupt Practices Laws in obtaining any consents, licenses, approvals, authorizations, rights, or privileges with respect to the Project; (b) the Borrower, its officers directors, employees and agents are otherwise conducting the Project and the Borrower’s business in compliance with all applicable Corrupt Practices Laws; and (c) the internal management and accounting practices and controls of the Borrower, Holdings and the Sponsor are adequate to ensure compliance with all Corrupt Practices Laws.

5.20.       ERISA.

(a)           The Borrower and its ERISA Affiliates have operated the Employee Benefit Plans in compliance with their terms and with all applicable provisions and requirements of the Internal Revenue Code, ERISA, and other applicable Federal or state laws and have performed all their respective obligations under each Pension Plan, except such noncompliance as could not reasonably be expected to have a Material Adverse Effect.  As of the date hereof, there are no Pension Plans or Multiemployer Plans.

(b)           No ERISA Event has occurred or is reasonably expected to occur.

(c)           Except to the extent required under Section 4980B of the Internal Revenue Code or comparable state law, no Employee Benefit Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of the Borrower or any of its ERISA Affiliates.

(d)           The execution and delivery of this Common Agreement and the consummation of the transactions contemplated hereunder will not involve any transaction that is subject to the

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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prohibitions of Section 406 of ERISA or in connection with which taxes could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Internal Revenue Code.

(e)           All liabilities under each Pension Plan are (i) funded to at least the minimum level required by applicable law or, if higher, to the level required by the terms governing the Pension Plans (ii) insured with a reputable insurance company, (iii) provided for or recognized in the Financial Statements most recently delivered to the Loan Servicer pursuant to Section 6.1 or (iv) estimated in the formal notes to the Financial Statements most recently delivered to the Loan Servicer pursuant to Section 6.1.

(f)            There are no circumstances which may give rise to a liability in relation to any Pension Plan which is not funded, insured, provided for, recognized or estimated in the manner described in subsection (f) above.

(g)           (i) The Borrower is not and will not be a “plan” within the meaning of Section 4975(e) of the Internal Revenue Code; (ii) the assets of the Borrower do not and will not constitute “plan assets” within the meaning of the United States Department of Labor Regulations set forth in 29 C.F.R. § 2510.3-101; (iii) the Borrower is not and will not be a “governmental plan” within the meaning of Section 3(32) of ERISA; (iv) transactions by or with the Borrower are not and will not be subject to state statutes applicable to the Borrower regulating investments of fiduciaries with respect to governmental plans; and (v) the Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by the Credit Parties of any of their respective rights under this Common Agreement) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA or Section 4975 of the Internal Revenue Code.  The Borrower further agrees to deliver to Credit Parties such certifications or other evidence of compliance with the provisions of this Section 5.20(g) as the Credit Parties may from time to time request.

5.21.       Insurance.

All Required Insurance to be obtained and maintained for the Project pursuant to Section 6.3 is in full force and effect.

5.22.       Intellectual Property.

(a)           The Borrower owns or holds a valid and enforceable license or right to use the Technology and Intellectual Property Rights necessary to do the following in a commercially reasonable manner and as contemplated in connection with the Project:  (i) construct, operate, use and maintain the Project Facility; and (ii) exercise its rights and perform its obligations under the Operating Documents in connection with the Project, except, in each case, where the failure to own or hold a valid and enforceable license or right to use such Technology and Intellectual Property Rights could not reasonably be expected to result in a Material Adverse Effect.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(b)           To the Borrower’s Knowledge, the Technology and Intellectual Property Rights licensed to Borrower under the Technology License Agreement and the use thereof by Borrower does not infringe upon or misappropriate the Intellectual Property Rights or other rights of any other Person and no actions by the Borrower and no product, process, method, substance, part or other material presently contemplated to be sold or employed by the Borrower infringe upon or misappropriate the Intellectual Property Rights of any other Person, except, in each case, where such infringement or misappropriation of such Intellectual Property Rights or such other rights could not reasonably be expected to result in a Material Adverse Effect.

5.23.                     No Defaults.

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

5.24.                     No Judgment Liens.

The Borrower does not have a judgment lien against any of its property for a debt owed to the United States of America or any other creditor and does not have an outstanding debt (other than a debt under the Internal Revenue Code) owed to the United States of America or any agency thereof that is in delinquent status, as the term “delinquent status” is defined in 31 C.F.R.§ 285.13(d).

5.25.                     Sufficiency of Project Documents.

(a)           All easements, leasehold and other property interests, and all utility and other services, means of transportation, facilities, other materials and other rights that are necessary for the construction, completion and operation of the Project in accordance with Governmental Rules and the Transaction Documents (including without limitation gas, electrical, water and sewage services and facilities) have been procured under the Project Documents or otherwise, or are commercially available to the Project at the Project Site on terms consistent with the Project Budget and the Base Case Projections, and, to the extent appropriate, arrangements have been made on terms consistent with the Project Budget and the Base Case Projections for such easements, interests, services, means of transportation, facilities, materials and rights.

(b)           The Borrower has provided the Loan Servicer with a true, complete and correct copy of each of the Project Documents in existence as of the Financial Closing Date (including all exhibits, schedules, protocols and side letters referred to therein or delivered pursuant thereto, if any, and all amendments, modifications, additions, waivers thereto or thereof), and each such Project Document in existence as of the Financial Closing Date (other than the subcontracts under the Principal Project Documents) is specifically named and listed in Section 4.1.2.  None of the Project Documents has been amended or modified, except in accordance with this Common Agreement.  Prior to the execution of each such Project Document entered into on or prior to the date this representation is made, Borrower believed, after having made a reasonable investigation with respect thereto, that each party to each such Project Document to which the Borrower is a party would be able to carry out its obligations in accordance therewith and nothing has come to the attention of Borrower to cause it to believe that any such party will not

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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be able to carry out its obligations in accordance therewith except as has been disclosed to the extent required under the Loan Documents.

(c)           Each Project Document in existence as of the Financial Closing Date is in full force and effect (i) against the Borrower and (ii) against each other party thereto except, in the case of this clause (ii), for instances that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

(d)           All representations and warranties made by each of Holdings, Sponsor and Operator in each of the Project Documents to which it is a party are true and correct in all material respects.  To Borrower’s Actual Knowledge, all representations and warranties made by each party (other than Borrower, Holdings, Sponsor and Operator) to each of the Project Documents in each of the Project Documents to which it is a party are true and correct in all material respects, except to the extent that the inaccuracy of any such representation or warranty could not reasonably be expected to have a Material Adverse Effect

(e)           Each of Borrower, Holdings, Sponsor and Operator has complied with all of its respective covenants and obligations under the Project Documents to which it is a party; and, to the Knowledge of Borrower, each of the other parties to the Project Documents has complied with all of its respective covenants and obligations under the Project Documents to which it is a party, except where such non-compliance by any such other party could not reasonably be expected to have a Material Adverse Effect.

(f)            Borrower believes that it is technically feasible for the Project to be operated so as to fulfill in all material respects the design specifications and requirements contained in the DOE Guarantee application or otherwise provided by Borrower or Sponsor to DOE and the Lender’s Engineer.

5.26.                     Financial Statements.

Each of the Financial Statements of the Borrower, Holdings and the Sponsor delivered to the Credit Parties has been prepared in accordance with GAAP and presents fairly in all material respects the financial condition of Borrower, Holdings or the Sponsor as of the respective dates of the balance sheets included therein and the results of operations of Borrower, Holdings or Sponsor for the respective periods covered by the statements of income included therein.  In the case of the Borrower, except as reflected in such Financial Statements, there are no liabilities or obligations of any nature whatsoever for the period to which such Financial Statements relate (other than under the Transaction Documents) that are required to be disclosed in accordance with GAAP.

5.27.                     Project Milestone Schedule and Project Budget; Operating Forecasts and Base Case Projections.

(a)           The Project Milestone Schedule, the Project Budget, the Operating Forecast and the Base Case Projections, as amended or supplemented by Approved Project Changes, (i) are

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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complete and based on reasonable assumptions, (ii) are consistent in all material respects with the provisions of the Project Documents, (iii) have been prepared in good faith and with due care, and (iv) fairly represent the Borrower’s expectation as to the matters covered thereby as of the date of the representation.

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

(c)           The Project Budget, as amended or supplemented by Approved Project Changes, represents the Borrower’s good faith estimate of all costs and expenses anticipated by the Borrower to be incurred to construct the Project in the manner contemplated by the Transaction Documents.

(d)           Borrower’s good faith estimate and belief as of the Common Agreement Date is that (i) Physical Completion will occur no later than the Anticipated Physical Completion Date, (ii) Total Project Costs will not exceed Base Project Costs except to the extent that the Loan Servicer has been notified to the contrary in accordance with the Loan Documents, and (iii) each of Total Project Costs, Base Project Costs, Eligible Base Project Costs and Ineligible Base Project Costs will not exceed the respective amounts therefor set forth in the Financial Plan.  Nothing has occurred to cause Borrower to believe that the Project Milestone Schedule and Base Case Projections, as amended or supplemented by Approved Project Changes, are unreasonable in any material respect.

5.28.                     Sufficient Funds

In accordance with Section 609.10(d)(8) of the Applicable Loan Guarantee Requirements, as of the Financial Closing Date, the Total Funding Available to the Borrower will be sufficient to carry out the Project, including adequate contingency funds for identified cost overruns.

5.29.                     Fees and Enforcement.

Other than amounts that have been paid in full or are not due and payable or with respect to which arrangements satisfactory to each Relevant Credit Party have been made, no fees or taxes including documentary, stamp, transaction, registration, or similar taxes are required to be paid to ensure the legality, validity, enforceability, priority or admissibility in evidence in applicable jurisdictions of any Transaction Documents.

5.30.                     Immunity.

In any proceedings in connection with any Transaction Document to which the Borrower is a party, the Borrower has not been and will not be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal processes.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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5.31.                     No Other Powers-of-Attorney, Etc.

The Borrower has not executed and delivered any powers of attorney or similar documents, except (i) to its directors and employees in the ordinary course of business, and (ii) in connection with Permitted Liens.

5.32.                     No Additional Fees.

Other than as contemplated in the Base Case Projections and the Project Budget, the Borrower has not paid nor become obligated to pay any fee or commission to any broker, finder or intermediary for or on account of arranging the financing of the transactions contemplated by the Transaction Documents.

5.33.                     OFAC and USA PATRIOT Act.

(a)           None of the Borrower, Holdings, the Sponsor or any of their respective Affiliates is a Prohibited Person, and the Borrower, Holdings, the Sponsor and all such Affiliates are in compliance with all applicable published orders, rules and regulations of OFAC.

(b)           None of the Borrower, Holdings, the Sponsor, nor any of their directors, officers, or Affiliates: (x) is subject to United States or multilateral economic or trade sanctions in which the United States participates; (y) is owned or controlled by, or act on behalf of, any governments, corporations, entities or individuals that are subject to United States or multilateral economic or trade sanctions in which the United States participates; or (z) is a Prohibited Person or is otherwise named, identified or described on any blocked persons list, designated nationals list, denied persons list, entity list, debarred party list, unverified list, sanctions list or other list of individuals or entities with whom United States persons may not conduct business, including but not limited to lists published or maintained by OFAC, lists published or maintained by the U.S. Department of Commerce, and lists published or maintained by the U.S. Department of State; and none of the Borrower, Holdings or the Sponsor has sold ten percent (10%) or more of its capital stock (whether in one transaction or a series of transactions) in a negotiated sale to any Person that, at the time of such sale, was described in any of clauses (x), (y), or (z) of this Section 5.33(b).

(c)           None of the Collateral is traded or used, directly or indirectly by a Prohibited Person or by a Person organized in a Prohibited Jurisdiction.  Neither the making of any Advances nor the use by the Borrower, Holdings or the Sponsor of the proceeds thereof will violate any OFAC regulations, or any anti-boycott laws and regulations.

(d)           The Borrower, Holdings, and the Sponsor have established an anti-money laundering compliance program if and as required by the USA PATRIOT Act.

(e)           For purposes of this Section 5.33, “Affiliate” means, with respect to any Person, any other Person which, directly or indirectly, controls, is controlled by, or is under common control with, such Person.  Solely for purposes of this definition of “Affiliate,” “control”

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(together with correlative meanings of “controlled by” and “under common control with”) means possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

5.34.                     U.S. Government Requirements.

(a)           Suspension and Debarment.  No event has occurred and no condition exists that is likely to result in the debarment or suspension of the Borrower, Holdings, Sponsor or any of their respective Affiliates from contracting with the United States Government or any agency or instrumentality thereof, and none of the Borrower, Holdings, Sponsor or any of their respective Affiliates is now or ever has been subject to any such debarment or suspension.  As of the Common Agreement Date none of the Borrower, Holdings, Sponsor or any of their respective Affiliates or any Principal Persons of any of the foregoing are (i) debarred, suspended, proposed for debarment with a final determination still pending, declared ineligible or voluntarily excluded (as such terms are defined in any of the Debarment Regulations) from participating in procurement or nonprocurement transactions with any United States federal government department or agency pursuant to any of the Debarment Regulations, or (ii) indicted, convicted or had a Governmental Judgment rendered against the Borrower, Holdings, Sponsor or any of their respective Affiliates for any of the offenses listed in any of the Debarment Regulations, and no event has occurred and no condition exists that is likely to result in the debarment or suspension of the Borrower, Holdings, Sponsor or any of their respective Affiliates from contracting with the United States Government or any agency or instrumentality thereof; and none of the Borrower, Holdings or the Sponsor has sold ten percent (10) or more of its capital stock (whether in one transaction or a series of transactions) in a negotiated sale to any Person that, at the time of such sale, was described in any of clauses (i) or (ii) of this Section 5.34(a).

(b)           Lobbying.  In accordance with 31 U.S.C. §1352, no proceeds of the Advances have been or will be expended by the Borrower, Holdings or the Sponsor to pay any Person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress.

(c)           Affiliate.  For purposes of this Section 5.34, “Affiliate” means, with respect to any Person, any other Person which, directly or including, controls, is controlled by, or is under common control with, such Person.  Solely for purposes of this definition of “Affiliate,” “control” (together with correlative meanings of “controlled by” and “under common control with”) means possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

5.35.                     Insolvency Proceedings.

The Borrower is not the subject of any pending, or to the Borrower’s Actual Knowledge, threatened, Insolvency Proceedings.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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5.36.                     Use of Proceeds.

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

5.37.                     No Material Adverse Effect.

Since the Financial Closing Date, no Material Adverse Effect has occurred and is continuing nor is there any fact or circumstance that could reasonably be expected to result in a Material Adverse Effect.

5.38.                     Certain Program Requirements.

(a)           Eligibility.  In accordance with Section 609.10(d)(1) of the Applicable Loan Guarantee Requirements, the Project qualifies as an “Eligible Project” under Title XVII and is not a research, development, or demonstration project or a project that employs Commercial Technologies (as defined in the Applicable Loan Guarantee Requirements) in service in the United States.

(b)           U.S. Nexus.  In accordance with Section 609.10(d)(2) of the Applicable Loan Guarantee Requirements, the Project will be constructed and operated in the United States, the employment of the new or significantly improved technology in the Project has the potential to be replicated in other commercial projects in the United States, and this technology is or is likely to be available in the United States for further commercial application.

(c)           Useful Life.  In accordance with Section 609.10(d)(6) of the Applicable Loan Guarantee Requirements, the Maturity Date occurs prior to the earlier of (i) 30 years after the Financial Closing Date or (ii) the end of 90 percent of the projected useful life of the Project’s major physical assets, as calculated in accordance with GAAP.

(d)           No Tax-Exempt Indebtedness.  In accordance with Section 609.10(d)(7) of the Applicable Loan Guarantee Requirements, the DOE Credit Facility does not finance, either directly or indirectly, tax-exempt indebtedness obligations, consistent with the requirements of Section 149(b) of the Internal Revenue Code.

5.39.                     Davis-Bacon Act.

The Borrower has taken all steps necessary to comply with, and in all material respects is in compliance with, Section 6.30 and Exhibit A4 relating to the Davis-Bacon Act.

5.40.                     Buy American Provisions.

The Project does not involve the construction, alteration, maintenance, or repair of a “public building” or “public work” within the meaning of the Buy American Provisions.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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5.41.                     Recovery Act Reporting.

The Borrower has taken all necessary steps to be in compliance as of the Financial Closing Date with its reporting obligations under Section 6.29(a) with respect to the Recovery Act.

5.42.                     Full Disclosure.

(a)           The statements and information contained in any Borrower Certificate or DOE Credit Facility Document, taken together with all documents, reports or other written information pertaining to the Project, including the Application and the Application Supplement, together with all updates of such information from time to time, that have been furnished by or on behalf of the Borrower to any Credit Party or any Independent Consultant, are, taken as a whole, true and correct in all material respects and do not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not materially misleading in light of the circumstances in which they were made.

(b)           Other than the Transaction Documents, there are in existence no documents or agreements to which Sponsor, Holdings or Borrower is a party that have not been described to the Credit Parties that are material in the context of the Transaction Documents or that have the effect of varying any of the Transaction Documents or the Project.

(c)           Each of the Project Milestone Schedule, the Project Budget, the Operating Forecast, Operating Plan and the Base Case Projections, as amended and supplemented by Approved Project Changes, has been prepared in good faith based on assumptions believed to be reasonable by the Borrower at the time of their preparation or update.

5.43.                     Force Majeure

No Event of Force Majeure has occurred and is continuing with respect to the Borrower or the Project.

ARTICLE 6

AFFIRMATIVE COVENANTS

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

6.1.                            Information Covenants.

At its own expense the Borrower shall furnish or cause to be furnished to the Loan Servicer, in each case (y) in unalterable electronic format with a reproduction of the signatures where required and (z) upon request by the Loan Servicer, in soft electronic format, the following items, including the certificates and information identified in Exhibit O:

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(a)           Monthly Project Progress Reports.

(i)            Within ten (10) Business Days after the end of each month prior to the Physical Completion Date, the Borrower shall deliver to the Lender’s Engineer a Project Progress Report; and

(ii)           The Borrower acknowledges that not later than (30) days after the end of each month prior to the Physical Completion Date, the Lender’s Engineer will deliver to the Loan Servicer a separate report on construction progress;

(b)           Quarterly Financial Statements and Reports.  As part of the Quarterly Reporting Package, not later than forty-five (45) days after the end of each fiscal quarter (excluding the fourth fiscal quarter) of each Fiscal Year, commencing with the first fiscal quarter ending on or after the Financial Closing Date:

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

(ii)           a certificate of a Financial Officer of the Borrower with respect to such quarter, setting forth (A) a statement of all material financial transactions (other than any transactions contemplated under the Transaction Documents), and a report of all transactions involving the Borrower, on the one hand, and on the other hand Holdings and the Sponsor or any Affiliate of Holdings or the Sponsor (other than any such transaction under the Intercompany Project Documents); (B) for each such quarter that includes all or a portion of the Construction Period, calculations showing the amount of Equity Contributions and the amount of Advances applied to pay Project Costs; and (C) for each such quarter that includes all or a portion of the Operating Period, calculations showing compliance with the requirements of Section 6.33 and certification of such compliance, or if such certification cannot be made, an explanation therefor and what corrective action the Borrower has taken or proposes to take with respect thereto;

(c)           Annual Financial Statements and Reports.  As soon as available, but in any event not later than ninety (90) days after the end of each Fiscal Year, commencing with the first Fiscal Year ending on or after the Financial Closing Date:

(i)            Financial Statements of the Borrower as at the end of such Fiscal Year, audited by the Borrower’s Accountant and accompanied by any management letter delivered by the Borrower’s Accountant;

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

(iii)          a report certified by the Borrower addressing the extent to which the Project Facility Performance Targets have been achieved; and

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(iv)          a report from the Borrower’s Accountant, including (A) for each such Fiscal Year, certifying that it has no knowledge that an Event of Default or Potential Default has occurred and is continuing or if, any Event of Default or Potential Default has occurred and is continuing, a statement as to the nature and period of existence thereof; (B) for each such Fiscal Year that includes all or a portion of the Construction Period, the aggregate amount of Equity Contributions and the aggregate amount of Advances applied to pay Project Costs; and (C) for each such Fiscal Year that includes all or a portion of the Operating Period, a comparison between such annual Financial Statements and the projections for such Fiscal Year contained in the Operating Forecast, and a certification that it has no knowledge that the Borrower was not, and is not, in compliance with Section 6.33 or, if such non-compliance has occurred a statement as to the nature thereof;

(d)           Certification by Financial Officer.  Each time Financial Statements of the Borrower are delivered pursuant to Sections 6.1(e)(i) (as part of the Quarterly Reporting Package), or 6.1(c)(i) such Financial Statements shall be certified by a Financial Officer of the Borrower as having been prepared in accordance with GAAP on a consistent basis and as fairly presenting in all material respects the financial condition of the Borrower as of the date thereof and the results of operations of the Borrower for the periods presented.  Such certification shall also include a certification that the Person has made or caused to be made a review of the transactions and financial condition of the Borrower during the relevant fiscal period and (i) that other than as set out in such Financial Statements, there are no liabilities or obligations of the Borrower that are required to be presented in such Financial Statements in accordance with GAAP, and (ii) that no Event of Default or Potential Default exists, or if such certification cannot be made, the nature and period of existence of such Event of Default or Potential Default and what corrective action the Borrower has taken or proposes to take with respect thereto;

(e)           Quarterly Reporting Package.  Within forty-five (45) days after the end of each fiscal quarter (excluding the fourth fiscal quarter) of each Fiscal Year (as part of the Quarterly Reporting Package), each certified by an Authorized Official of the Borrower:

(i)            for each such quarter that includes all or a portion of the Construction Period, the most recent monthly Project Progress Reports delivered by the Borrower to the Lender’s Engineer pursuant to Section 6.1(a)(i) hereof;

(ii)           for each such quarter that includes all or a portion of the Operating Period, a summary operating report, which shall include a detailed assessment of the Project’s performance in comparison with the Operating Forecast and Operating Plan then in effect for such period, including basic data relating to the operation of the Project, pricing information, unusual maintenance activity, material casualty losses, material disputes between the Borrower and any Person, and material non-compliance with any Governmental Approvals; and

(iii)          all other items indicated in this Section 6.1 as being part of the Quarterly Reporting Package, together with a completed Quarterly Reporting Certificate;

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(f)            Financial Statements of Sponsor.  At any time during which the Sponsor is not subject to the periodic reporting requirements of the Securities Exchange Act of 1934, as amended, promptly after the same become available, and with respect to the Sponsor in accordance with the time periods applicable to the Borrower set forth in Sections 6.1(b) (as part of the Quarterly Reporting Package) and 6.1(c), unaudited quarterly and audited annual Financial Statements of the Sponsor prepared by Sponsor’s Accountant in accordance with GAAP certified by a Financial Officer of the Sponsor as having been prepared in accordance with GAAP on a consistent basis and as fairly presenting in all material respects the financial condition of the Sponsor as of the date thereof and the results of operations and cash flows of the Sponsor for the periods presented.

(g)           Management Letters.  Promptly after the Borrower’s receipt thereof, a copy of any management letter and all other material communications received by the Borrower from the Borrower’s Accountant in relation to its financial, accounting and other systems, management or accounts or the Project;

(h)           Reporting Obligations.  Promptly, but in any event within five Business Days, after any Authorized Official of the Borrower or the Operator obtains actual knowledge thereof, notice of:

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

(ii)           any action, litigation, claim, arbitration, dispute or governmental proceeding pending or threatened in writing (A) against the Borrower or any of its property, (B) with respect to the Project or any Transaction Document or any transaction contemplated thereby, or (C) against any other Project Participant; and any material development in any of the foregoing;

(iii)          any proceeding or legislation by any Governmental Authority specifically affecting (A) the Project, the Borrower, any of its property or its equity capital or (B) a Project Participant that, in each case, could reasonably be expected to have a Material Adverse Effect, including any developments with respect to any of the foregoing that would reasonably be expected to have a Material Adverse Effect;

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

(v)           any actual or proposed termination, rescission, discharge (otherwise than by performance), amendment, supplement, modification, waiver or indulgence or breach in any material respect of any Transaction Document, Governmental Approval or other Required Consent that is not otherwise permitted pursuant to the terms of the Transaction Documents;

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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

(vii)         any Lien (other than a Permitted Lien) being granted or established or becoming enforceable over any of the Borrower’s assets;

(viii)        any proposed material change in the nature or scope of the Project or the business or operations of the Borrower;

(ix)           any casualty damage or loss to the Project in excess of $50,000;

(x)            any notice of a delinquent payment owed by the Borrower to, or to the Borrower by (A) any Major Project Participant (other than the Project Construction Contractor) if such payment is more than thirty (30) days delinquent, or (B) any other party under the Project Documents if such payment is more than ninety (90) days delinquent, in either case, if the amount of any such delinquent payment is in excess of $100,000, in each case together with a copy of all correspondence received or sent by the Borrower with respect to such delinquent payment;

(xi)           any material correspondence from any Construction Contractor, the Administrator, or the Operator relating to, (A) any material delay in the completion of the Project, or (B) any event that could reasonably be expected to interrupt the operation of the Project for more than fifteen (15) days;

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

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

(xiv)        any Event of Force Majeure affecting, or that either the Borrower or any other Major Project Participant claims would affect, the performance by such Person of any material obligation under any Transaction Document, together with copies of all notices, calculations, data and other correspondence between such Major Project Participant and the Borrower in respect of any such event, circumstance or condition;

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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

(xvi)        upon request by any Credit Party, copies of any data relating to the performance of tests under any Project Document;

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

(xviii)      any proposed cancellation or adverse change in any Required Insurance maintained by the Borrower or by any other Person for the benefit of the Borrower with respect to the Project, and after Borrower obtains actual knowledge of any occurrence that has or could reasonably be expected to result in any premium increase in excess of 10% over Borrower’s insurance costs, taken as a whole, or any cancellation or non-renewal of, any policy of Required Insurance or any Required Insurance coverage required to be maintained hereby or by any other Transaction Document, notice (including a summary description) of such event, and within thirty (30) days after the Borrower obtains actual knowledge thereof, a report describing such event and the potential insurance-related impact thereof;

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

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

(xxi)         any material notice or correspondence received or initiated by the Borrower with respect to any of the Principal Project Documents.

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

(i)            within ten (10) days  after any such report is submitted, a copy of any report required to be filed by the Borrower (or on behalf of the Borrower) with any Governmental Authority other than in the ordinary course of business;

(ii)           within two Business Days after the Borrower obtains Actual Knowledge of any accident related to the Project having a material and adverse impact on the environment or on human health (including any accident resulting in the loss of life), notice thereof, and ten (10)

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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days thereafter a report describing such accident, the impact of such accident and the remedial efforts required and (as and when taken) implemented with respect thereto;

(iii)          within thirty (30) days after the close of each Fiscal Year, a report, satisfactory to the Loan Servicer in its reasonable discretion, summarizing any violations of Environmental Laws in connection with the Project over the preceding year, with sufficient information to allow the Credit Parties (including DOE) to monitor the Project’s performance with respect to the environment and its compliance with Environmental Laws and including a narrative summary of (A) the results of environmental monitoring or sampling activity, (B) any violations of Environmental Laws identified by any environmental Governmental Authority and any remedial action taken with respect thereto, and

(iv)          within ten (10) days after an Authorized Official of the Borrower obtains actual knowledge thereof, any Environmental Claim by any Governmental Authority or any assertion of an Environmental Claim or claims involving an amount in excess of $100,000 individually or $200,000 in the aggregate by any other Person or Persons together with a copy of any correspondence relating thereto and a description of any steps the Borrower is taking and proposes to take with respect thereto;

(j)            Updates to Project Milestone Schedule, Project Plans, Project Budget, Operating Plan, Operating Forecast, Financial Plan and Base Case Projections.  As part of the Quarterly Reporting Package, in each case certified by an Authorized Official of the Borrower:

(i)            for each fiscal quarter that includes all or a portion of the Construction Period, an updated Project Milestone Schedule, updated Project Plans and an updated Project Budget, reflecting any Approved Project Changes; and projections regarding Borrower’s bidding strategies;

(ii)           for each fiscal quarter that includes all or a portion of the Operating Period, an updated Operating Plan for the next four fiscal quarters, an updated Operating Forecast for the next four fiscal quarters and for the remainder of the Operating Period, an updated Financial Plan; and, if requested by the Loan Servicer, updated Base Case Projections in form and detail reasonably satisfactory to each Relevant Credit Party; and

(iii)          Upon the request of any Credit Party, an Authorized Official of the Borrower shall schedule a date to discuss any updated Operating Plan, updated Operating Forecast, updated Financial Plan, updated Base Case Projections, and such other matters relating to the Project as any Credit Party may reasonably request;

(k)           Filings with, or Material Notices from, FERC.  (i) Within twenty-four (24) hours after sending any such notice, report or other document to FERC, a copy of any notice, report or other document filed or required to be filed by the Sponsor or the Borrower with FERC in connection with the Project and (ii) promptly, and in any event within five (5) Business Days after receipt, a copy of any notice or other document received by the Sponsor or the Borrower from FERC in connection with any notice, report or other document submitted by the Sponsor or

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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the Borrower, or required to be submitted by the Sponsor or the Borrower, to FERC under clause (i) of this Section 6.1(k).  The copy of any notice required to be given by Sponsor to FERC of a change in control under Section 203(a) of the Federal Power Act shall be accompanied by a cover note stating that the notice is a change in control notice required under Section 203(a) of the Federal Power Act;

(l)            Annual Safety Audit.  Within thirty (30) days after its completion, a copy of the report regarding the required annual safety audit pursuant to Section 6.18;

(m)          Annual Operating Budget.  Not later than thirty (30) days prior to the beginning of each Fiscal Year commencing with the first Fiscal Year in which Borrower reasonably expects to realize Operating Revenues, the operating budget of Borrower for the first three (3) months of such Fiscal Year and not later than thirty (30) days after the beginning of each Fiscal Year commencing with the first Fiscal Year in which Borrower reasonably expects to realize Operating Revenues, the operating budget of Borrower for the last nine (9) months of such Fiscal Year, certified, in each case, by an Authorized Official of the Borrower (collectively, the “Initial Operating Budget”), which (i) shall include, on an aggregate and month-by-month basis, reasonable estimates of all Operating Revenues expected to be received and all Operating Costs (by category) expected to be incurred during such Fiscal Year and during each month in such Fiscal Year, (ii) shall include such other information as may be reasonably requested by the Loan Servicer and (iii) shall be prepared on a basis consistent from year to year and month to month in sufficient detail to permit meaningful comparisons, and shall include a statement of the assumptions on which it is based.  Borrower may amend the Initial Operating Budget, as the same may have been previously amended, for any Fiscal Year by furnishing the Loan Servicer an amended operating budget of Borrower for such Fiscal Year, certified by an Authorized Official of the Borrower (the “Amended Operating Budget”), which shall include the same information as is contained in the Initial Operating Budget, together with an explanation of any changes from the Initial Operating Budget, as the same may have been previously amended.  The Initial Operating Budget, as the same may be amended by any Amended Operating Budget, is hereinafter referred to as the “Operating Budget”.

(n)           Additional Project Documents and Governmental Approvals.  As soon as available, but in no event later than ten (10) Business Days after the receipt thereof by the Borrower, copies of all Additional Project Documents, any Governmental Approvals and other Required Consents obtained or entered into by the Borrower after the Financial Closing Date;

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

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

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(q)           Insurance Certificate.  Certificates with respect to Required Insurance conforming to the insurance requirements of Schedule 6.3(b) at the times required by such Schedule;

(r)            Information Pertaining to Banks Providing Reserve Letters of Credit.  As soon as available, but in any event, no later than thirty (30) days after any downgrade in the credit rating of any bank providing a Reserve Letter of Credit;

(s)           Reporting of Major Corporate Events.  If not prohibited by any applicable Governmental Rule and the same would not require disclosure under federal securities laws, on or before the earlier of (y) one Business Day prior thereto and (z) if Sponsor is required to give notice thereof to FERC pursuant to Section 203(a) of the Federal Power Act, the date Sponsor gives notice thereof to FERC, notice of:

(i)            (a) any sale, transfer, assignment, lease or other disposition (whether in one transaction or a series of transactions) of all, or substantially all, of the assets of Sponsor; (b) any merger or consolidation of Sponsor with any other Person; or (c) any negotiated sale by Sponsor of any of the capital stock of Sponsor; and

(ii)           (a) any sale by Sponsor of any of the Equity Interests in Holdings; (b) the formation of a Parent Holdco; or (c) if Sponsor shall hold its Equity Interests in Holdings through a Parent Holdco, any sale by Sponsor of any of the Equity Interests in Parent Holdco;

(t)            Other Information.  Promptly upon request, such other information or documents relating to the Borrower, the Sponsor or the Project as any Credit Party or any Independent Consultant may reasonably request; and

(u)           Information Made Available.

(i)            In accordance with Section 609.10(d)(19) of the Applicable Loan Guarantee Requirements, (A) the information that will be made available to DOE is as set forth in the Loan Documents, and (B) any information will be made publicly available as required by applicable federal law.

(ii)           Without limiting the generality of clause (i) of this subsection, all correspondence, books, documents, papers and records relating to the structuring, negotiation and execution of this Common Agreement and the transactions contemplated herein, including this Common Agreement, the Loan Documents, the pre-application, the Application, the term sheet and all supporting documentation, Financial Statements, audit reports of independent accounting firms, permits and regulatory approvals furnished or otherwise made available to DOE, will be handled in accordance with all applicable federal laws, rules, or regulations, including the Trade Secrets Act, 18 U.S.C. §1905, and the Freedom of Information Act (FOIA), 5 U.S.C. §552, and DOE’s implementing regulations at 10 C.F.R. 1004.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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

(a)           The Borrower shall keep proper records and books of account, maintain adequate management information and cost control systems, and make arrangements reasonably satisfactory to the Loan Servicer for overseeing the financial operations of the Borrower, including its cash management, accounting and financial reporting, for overseeing the Borrower’s relationship with the Credit Parties and the Borrower’s Accountant and, in accordance with Section 609.10(f)(1) of the Applicable Loan Guarantee Requirements, for facilitating the effective and accurate audit and performance evaluation of the Project pursuant to the Applicable Loan Guarantee Requirements and Program Requirements;

(b)           Each set of Financial Statements the Borrower delivers shall be prepared in accordance with GAAP consistently applied except to the extent that there have been any changes to such accounting principles or the application thereof noted in such Financial Statements and all financial records of the Borrower shall be maintained at the principal executive office of the Borrower located at 65 Middlesex Road, Tyngsboro, MA 01879;

(c)           The Borrower (i) shall consult with, and respond to questions from, the Credit Parties regarding the Project upon their request, (ii) in accordance with Section 609.10(d)(18) of the Applicable Loan Guarantee Requirements, shall permit officers and designated representatives of DOE to visit and inspect the Project Facility and any other facilities and properties of the Borrower, (iii) in accordance with Section 609.10(f)(2) of the Applicable Loan Guarantee Requirements, shall provide to officers and designated representatives of DOE and the Comptroller General access to any pertinent books, documents, papers and records of the Borrower for the purpose of audit, examination, inspection and monitoring upon reasonable notice and at reasonable times during normal business hours, to examine and discuss the affairs, finances and accounts of the Borrower with the representatives of the Borrower, (iv)  shall afford proper facilities for such inspection, shall make copies (at Borrower’s expense) of any records that are subject to such inspection, shall make available all information related to the Project, including all patents, technology and proprietary rights owned or controlled by the Borrower and utilized in the construction, startup or operation of the Project, as may be reasonably necessary in order to determine the technical progress, soundness of financial condition, management stability, compliance with environmental requirements, adequacy of health and safety conditions, and all other matters with respect to the Project, and (v) shall require each Major Project Participant to make available to the Credit Parties, the Comptroller General and the Independent Consultants the same rights of inspection and access to its books and records that such Major Project Participant makes available to Borrower or to the Operator.

(d)           The Borrower shall upon the request of any Credit Party authorize the Borrower’s Accountant to communicate directly with the Credit Parties, the Comptroller General and the Independent Consultants and their representatives at any time regarding the Borrower’s accounts and operations;

(e)            In the event that the Borrower’s Accountant should cease to be the accountants of the Borrower for any reason, the Borrower shall appoint and maintain as the Borrower’s

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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Accountant another firm of independent public accountants, which firm shall be nationally recognized, and shall be approved by the Loan Servicer; provided, however, that any of Deloitte & Touche LLP, Ernst & Young LLP, KPMG LLP and PricewaterhouseCoopers LLP, if appointed by the Borrower as the Borrower’s Accountant, shall not require the approval of the Loan Servicer; and

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

6.3.                            Maintenance of Property and Insurance.

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

(b)           The Borrower shall keep its present and future properties and business insured as required by and in accordance with the terms and provisions described on Schedule 6.3(b).  Such terms and provisions may be modified (i) at the reasonable request of the Loan Servicer upon prior written notice to the Borrower or (ii) at the reasonable request of the Borrower upon prior written notice to the Loan Servicer and subject to the reasonable consent of the Loan Servicer.

(c)           The Borrower shall use commercially reasonable efforts to cause each Construction Contractor to obtain and maintain the insurance required under its respective Construction Contract; provided that work shall not proceed under any particular Construction Contract if all such required insurance is not in place.

6.4.                            Maintenance of Existence; Conduct of Business.

The Borrower shall (i) maintain and preserve its existence as a limited liability company organized and existing under the laws of the State of Delaware and acquire, maintain, and renew all rights, licenses, contracts, powers, privileges, Leases, lands, sanctions, and franchises necessary in the normal conduct of its business and in the performance of the Borrower’s obligations hereunder and under the other Transaction Documents, (ii) observe all corporate formalities and (iii) engage only in the business contemplated by the Transaction Documents.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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6.5.                            Compliance with Governmental Rules; Environmental Laws; Governmental Approvals.

(a)           The Borrower shall, and cause the Operator to, (i) comply with, and shall conduct its business, operations, assets, equipment, property, leaseholds, and other facilities in compliance with all applicable Environmental Laws and in compliance with all other applicable Governmental Rules the noncompliance with which would reasonably be expected to have a Material Adverse Effect, and (ii) procure, maintain and comply with all Governmental Approvals required for the ownership, construction, financing, maintenance or operation of the Project or any part thereof as contemplated by the Transaction Documents at or prior to such time as such Governmental Approval is required or necessary, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

(b)           Each of the following transactions, if, and to the extent, otherwise permitted pursuant to the terms of the Transaction Documents, shall be in compliance with all applicable Governmental Rules including, without limitation, applicable Governmental Rules of FERC: (i) the sale, transfer, assignment, lease or other disposition (whether in one transaction or a series of transactions) of all, or substantially all, of the assets of Sponsor; (ii) the merger or consolidation of Sponsor with any other Person; and (iii) any negotiated sale by Sponsor of any of the capital stock of Sponsor.

6.6.                            Compliance with Debarment Regulations.

The Borrower shall provide immediate written notice (including a brief description) to the Loan Servicer if at any time it learns that the representations made with respect to Debarment Regulations were erroneous when made or have become erroneous by reason of changed circumstances.

6.7.                            Tax, Duties, Proper Legal Form.

The Borrower shall pay or arrange for the payment before they become overdue of all present and future (i) material taxes (including stamp taxes), duties, fees, Periodic Expenses, or other charges payable on or in connection with the execution, issue, delivery, registration, or notarization, or for the legality, validity, or enforceability, of this Common Agreement, any other Transaction Documents and any other documents related to this Common Agreement (other than those tax that it is contesting in good faith and by appropriate proceedings for which reserves have been established to the extent required by GAAP) and (ii) claims, levies, or liabilities (including claims for labor, services, materials and supplies), for sums that have become due and payable and that have or, if unpaid, could reasonably be expected to become a Lien (other than a Permitted Lien) upon the property of the Borrower (or any part thereof).  The Borrower shall take all action to ensure that each of the Transaction Documents is in proper legal form under the respective governing laws selected in such Transaction Document, without any further action required with respect to such legal form for the enforcement of such Transaction Documents.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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6.8.                            Approved Project Changes.

(a)           The Borrower shall (i) apply the proceeds of the Advances and Equity Advances exclusively to Eligible Base Project Costs; and (ii) use its reasonable commercial efforts to cause Physical Completion to be achieved on or prior to the Anticipated Physical Completion Date and within the Project Budget, all in accordance with the Program Requirements.

(b)           The Borrower shall not change, reallocate, amend, modify, or supplement or permit or consent to any changes, reallocations, amendments, modifications, or supplements (each a “Project Change”) of any of the provisions of  the Project Milestone Schedule or the Project Budget, except for the following approved Project changes (“Approved Project Changes”):

(i)            any Project Change that (x) has been submitted in writing by the Borrower to the Loan Servicer (including an explanation in reasonable detail of the reasons for such Project Change) and (y) has received a written approval from the Loan Servicer in consultation with the Lender’s Engineer;

(ii)           any increase of any of the line items in the Project Budget if such increase, when aggregated with all other changes to the Project Budget in accordance with this Section 6.8(b)(ii) since the Common Agreement Date, would not result in a cumulative net decrease, since the date of this Common Agreement, of Overrun Contingencies of more than [*****] (excluding any Approved Project Change pursuant to Section 6.8(b)(iii)); or

(iii)          the use or allocation of any contingency approved or preapproved for use, as set forth in the Project Budget.

(c)           All Approved Project Changes shall be reflected in a revised Project Milestone Schedule or Project Budget, as the case may be, delivered as part of the next Quarterly Reporting Package.

6.9.                            Operating Forecasts.

From and after the Project Completion Date, the Borrower shall or shall cause the Project to operate in all material respects pursuant to the Operating Plan then in effect.

6.10.                     Diligent Construction and Installation of Project and Operations.

The Borrower shall cause the Project to be designed, engineered, constructed, equipped, installed and tested diligently in accordance with the Project Documents and the other Transaction Documents, Governmental Approvals, and the Project Milestone Schedule and the Project Budget, subject to Events of Force Majeure.  Notwithstanding any delay in the design, engineering, construction, installation, equipping or testing of the Project caused in whole or in part by Events of Force Majeure, such design, engineering, construction, installation, equipping and testing shall in all events be completed on or before the Anticipated Physical Completion

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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Date.  The Borrower shall conduct, and shall cause the Operator to conduct, the operations of the Project on the basis of customary commercial practice and arm’s-length arrangements, or as otherwise set forth in the Project Documents, with due diligence and efficiency and under the supervision of qualified and experienced management.

6.11.                     Ineligible and Overrun Project Costs.

The Borrower shall be obligated to comply with the Overrun Equity Commitment and shall fund 100% of (i) Ineligible Project Costs and (ii) Overrun Project Costs by depositing monies in the Overrun Equity Account in the amounts and at the times required by Section A.4 of Appendix A.

6.12.                     Cost Overruns and Contingencies.

To the extent that the Construction Contracts allow for a Cost Overrun to be funded from Overrun Contingencies, such Cost Overrun shall be funded as a Project Cost and charged against the available Overrun Contingency amount.  Any Cost Overrun that cannot be funded from Overrun Contingencies shall be funded from Overrun Equity in accordance with Section 2.4.2.

6.13.                     Use of Proceeds; Repayment of Indebtedness.

(a)           Proceeds.  The Borrower shall use the proceeds of all Equity Contributions and all Advances in accordance with the terms and conditions of all applicable Loan Documents.

(b)           Repayment of Indebtedness.  The Borrower shall repay in accordance with its terms all Indebtedness due under the Loan Documents.

6.14.                     Performance of Obligations.

The Borrower shall maintain in full force and effect each of the DOE Credit Facility Documents and each of the other Loan Documents to which it is a party in accordance with the respective terms thereof, except for those Loan Documents that shall by their terms terminate.  The Borrower shall comply with the provisions of and perform all of its obligations under each Loan Document in accordance with the terms thereof.  The Borrower shall maintain in full force and effect each of the Project Accounts in accordance with the provisions of Appendix A attached hereto.

6.15.                     Project Documents.

The Borrower shall (i) maintain all the Project Documents to which it is a party in full force and effect, (ii) comply with the material provisions of and perform all of its material obligations under such Project Documents, and (iii) diligently pursue all of its rights and remedies under such Project Documents.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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6.16.                     Cash Deposits.

The Borrower shall instruct each Person remitting cash to or for the account of the Borrower to deposit such cash in accordance with the terms of this Agreement.  The Borrower shall remit any amounts received by it or received by third parties on its behalf to the Administrative Agent in its capacity as the Collateral Agent for deposit with the Depository Bank in accordance with this Agreement.

6.17.                     Debt Service Reserve.

The Borrower shall establish and maintain a reserve for Debt Service (the “Debt Service Reserve”) in accordance with Appendix A attached hereto.  The Debt Service Reserve shall consist of any combination of cash and Reserve Letters of Credit.  In the event of any withdrawal of monies on deposit in the Debt Service Reserve Account in accordance with Section A.10(a) of Appendix A or otherwise, the Borrower shall restore the amount on deposit in the Debt Service Reserve Account to the Debt Service Reserve Requirement within ninety (90) days after the date of such withdrawal.

6.18.                     Safety Audit.

Not less frequently than once each calendar year, the Borrower shall conduct, or cause the Operator to conduct, a safety audit of the Project in a manner reasonably satisfactory to the Loan Servicer (in consultation with the Lender’s Engineer), each in its sole discretion, including an analysis of whether the Project is in compliance with all Governmental Rules and Environmental Laws and each such safety audit shall result in the prompt preparation of a written report with respect thereto which shall be delivered to the Loan Servicer, DOE and the Lender’s Engineer for review and approval by the Loan Servicer, in consultation with the Lender’s Engineer.  The Borrower shall provide for the prompt correction of any deficiencies identified in such safety audit and for the operation and maintenance of the Project in accordance with any recommendations set forth therein.

6.19.                     Replacement of Certain Project Participants.

The Borrower shall, at the request of the Loan Servicer (after consultation with the Borrower) exercise its right (if any) to terminate (a) the Operator in accordance with and as permitted by the O&M Agreement if the Operator is not operating the Project in accordance with the O&M Agreement or (b) any party to a Project Document to which the Borrower is a party (other than a Credit Party and NYISO) in accordance with and as permitted by such Project Document if such party is not in compliance with such Project Document.  Promptly after any termination, the Borrower shall enter into a replacement agreement with a new operator or other Person, as the case may be, on terms and conditions satisfactory to the Loan Servicer.

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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6.20.                     Security Interest in Newly Acquired Property; Additional Project Documents.

If the Borrower shall at any time acquire any interest in property not covered by the Security Documents or enter into any Additional Project Document, the Borrower shall promptly (i) notify the Loan Servicer of said interest or Additional Project Document, (ii) upon request of the Loan Servicer, execute, deliver and record a supplement to the Security Documents, satisfactory in form and substance to the Loan Servicer, (iii) ensure that the security interest shall be valid and effective and (iv) upon request of the Loan Servicer, deliver to the Administrative Agent in its capacity as the Collateral Agent, a consent to assignment for each such Additional Project Document in an agreed form.

6.21.                     Title; Rights to Land.

The Borrower shall preserve and maintain good and valid title to the Project and such rights to use the Project Site as are necessary to construct, operate and maintain the Project in accordance with the requirements of the Transaction Documents.

6.22.                     Independent Consultants.

The Borrower (i) shall cooperate in all respects with each Independent Consultant and (ii) shall ensure that each Independent Consultant is provided with all information reasonably requested by such Independent Consultant in fulfilling its duties to the Credit Parties.

6.23.                     Additional Documents; Filings and Recordings.

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

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

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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Agent) to establish, maintain and perfect such security interests and in all other places that the Loan Servicer, DOE or the Administrative Agent in its capacity as the Collateral Agent shall reasonably request, (B) discharge all other Liens (other than Permitted Liens) or other claims adversely affecting the rights of the Secured Parties in the Collateral Security and (C) deliver or publish all notices to third parties that may be required to establish or maintain the validity, perfection or priority of any Lien created pursuant to the Security Documents.

(ii)           The Borrower shall do everything necessary in the judgment of the Loan Servicer or the Administrative Agent in its capacity as the Collateral Agent (including filing, registering and recording all necessary documents and paying all fees, taxes, levies, imposts and Periodic Expenses in connection therewith) to (A) create security arrangements, including, if applicable, the establishment of a pledge or the perfection of any Lien or, as applicable, the enforceability of a Lien as against the Borrower and any subsequent lienor (including a judgment lienor), holder of a charge, or transferee for or not for value, in bulk, by operation of law, or otherwise, in each case granted, with respect to future assets in accordance with the requirements of all Governmental Rules, or the law of any other jurisdiction, as applicable, (B) maintain the security and pledges created by the Security Documents in full force and effect at all times (including, as applicable, the priority thereof) and (C) preserve and protect the Collateral Security and protect and enforce its rights and title, and the rights and title of the Credit Parties, to the security created by the Security Documents.  Furthermore, the Borrower shall cause to be delivered to the Loan Servicer such opinions of counsel and other related documents as may be reasonably requested by the Loan Servicer, DOE or the Administrative Agent in its capacity as the Collateral Agent to assure compliance with this Section 6.23.  Additionally, when requested by the Loan Servicer, the Borrower shall cause any party to a Project Document executed subsequent to the Financial Closing Date to enter into a Direct Agreement with the Administrative Agent in its capacity as the Collateral Agent in form and substance satisfactory to the Loan Servicer and the Administrative Agent in its capacity as the Collateral Agent.

6.24.                     Intercompany Project Documents.

Unless otherwise agreed by each Relevant Credit Party, each of the Intercompany Project Documents will contain the following provisions:

(a)           a [*****] after the term of the DOE-Guaranteed Loan (provided that any such agreement may terminate on the date that no amounts are outstanding under the DOE-Guaranteed Loan and the Loan Documents);

(b)           payment terms (and other terms) no less favorable to the Borrower than the Sponsor and/or applicable Sponsor Affiliate would extend (i) to an unaffiliated third party, and (ii) to the Sponsor or another Sponsor Affiliate if such terms would be more favorable to the Sponsor or such Sponsor Affiliate than the terms extended to an unaffiliated third party;

(c)           provisions assuring that the Sponsor and/or Sponsor Affiliate will provide (or purchase) the goods or services that are the subject of such Intercompany Project Documents to

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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the Borrower on a non-discriminatory basis, subject to customary reconciliation and true-up provisions;

(d)           calculation of pricing and allocation of any reimbursable costs based on actual third-party amounts without any administrative markup or additional fees, except as indicated in paragraphs (m) and (n) below;

(e)           DOE right to receive notices of default and other material events and DOE cure rights for Borrower breach;

(f)            appropriate force majeure provisions protecting the Borrower;

(g)           limited termination rights in favor of the Sponsor and/or Sponsor Affiliate;

(h)           collateral assignment to DOE and DOE step-in rights, consent rights and termination rights following the occurrence of an event of default;

(i)            pass-through to the Borrower of warranties;

(j)            indemnification by the Sponsor and/or Sponsor Affiliate of the Borrower and DOE;

(k)           provisions protecting the Borrower’s interests in any intellectual property necessary or desirable for the Project;

(l)            consents and subordinations to the terms of the Loan Documents, including, but not limited to, cash flow waterfall provisions which could result in the Sponsor or Sponsor Affiliate failing to be paid all or a portion of its compensation for services rendered;

(m)          for contracts that are effective during the development or construction period, payments shall be limited to actual costs incurred and no payment shall be made for fees, commissions, profit or mark-up until the Project Completion Date, except to the extent agreed upon by DOE;

(n)           for contracts that are effective during the operational period, no payment shall be made for fees, commissions, profit or mark-up, except from the release of funds from the Distribution Suspense Account; provided that certain profit and/or mark-up may be payable pursuant to the O&M Agreement and the Administrative Services Agreement in accordance with the application of funds on deposit in the Project Revenue Account, as set forth herein;

(o)           customary insurance naming the Borrower and DOE as loss payees or additional insureds;

(p)           waiver of set-off; and

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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(q)           such other provisions as DOE determines are reasonably necessary to protect the Borrower’s and DOE’s interests.

6.25.                     Event of Loss.

If any material Event of Loss shall occur with respect to the Project or any part thereof, the Borrower shall (i) diligently pursue all its rights to compensation involving an amount in excess of $100,000 per claim against all relevant insurers, reinsurers and Governmental Instrumentalities, as applicable, in respect of such event; (ii) not, without the written consent of the Loan Servicer compromise or settle any claim with respect to any Event of Loss involving an amount in excess of $250,000 per claim; and (iii) pay or apply all Loss Proceeds stemming from such event in accordance with Section 3.4.3(a)(ii) and Section 6.26.

6.26.                     Application of Loss Proceeds.

(a)           All Loss Proceeds shall be applied as provided in this Section 6.26.  All Loss Proceeds shall be paid by the relevant insurers, reinsurers and Governmental Authorities, as applicable, directly to the Administrative Agent in its capacity as the Collateral Agent as loss payee and, if paid to the Borrower, such Loss Proceeds shall be received in trust and for the benefit of the Administrative Agent in its capacity as the Collateral Agent segregated from other funds of the Borrower, and shall be forthwith paid over to the Administrative Agent in its capacity as the Collateral Agent in the same form as received (with any necessary endorsement).  The Administrative Agent in its capacity as the Collateral Agent as directed by the Loan Servicer shall apply all such Loss Proceeds in accordance with the provisions of this Section 6.26.

(b)           Upon the occurrence of a Event of Loss with respect to which Loss Proceeds are payable in respect of a single loss in an amount not in excess of $250,000, the Borrower shall apply such Loss Proceeds to the payment of the costs of repair or restoration of the portion of the Project lost or damaged, and disbursement of such funds by the Administrative Agent in its capacity as the Collateral Agent shall be made in accordance with this Section 6.26.

(c)           Upon the occurrence of any Event of Loss with respect to which Loss Proceeds are payable in respect of a single loss in an amount in excess of $250,000, disbursement of funds by the Administrative Agent in its capacity as the Collateral Agent to the Borrower shall be permitted if, and only if, the Loan Servicer after consultation with the Lender’s Engineer, if any, shall have determined that:

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

(ii)           the Borrower is in compliance with such other conditions and requirements as the Loan Servicer shall consider appropriate in the circumstances.

(d)           Upon the occurrence of an Event of Loss, if the Project is to be restored or repaired in accordance with subsection (b) or (c) hereof, the Borrower shall, on the first Business

Confidential materials omitted and filed separately with the Securities and Exchange Commission.  Asterisks denote such omission.

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Day of each month until such restoration and repair has been completed and the contractors performing such restoration or repair work have been paid in full, deliver to the Collateral Agent and the Loan Servicer the following:

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

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

(e)           Upon the completion of any such restoration and repair work, or if restoration and repair work is not undertaken pursuant to this Section 6.26, the Collateral Agent shall, upon receipt of written instructions from the Loan Servicer, apply any amounts constituting Loss Proceeds on deposit in the Loss Proceeds Account to the prepayment of the FFB Loans on the second Business Day following receipt of such instructions, in accordance with Section 3.4.3(a)(ii).

6.27.                     Acceptance and Startup Testing.