Master Purchase and Sale Agreement

MCE DRAFT

9/11/2017

MASTER PURCHASE AND SALE AGREEMENT

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32551202v3

THIS MASTER PURCHASE AND SALE AGREEMENT (“Master Agreement”) is made as of the following date: [DATE](the “Effective Date”) between [SELLER] (“Seller”), a [e.g., Delaware limited liability company]with its principal place of business at [ADDRESS] and Marin Clean Energy, a California joint powers authority (“Buyer”) with its principal place of business at 1125 Tamalpais Avenue, San Rafael, CA 94901 (each, a “Party” and collectively, the “Parties”). This Master Agreement, together with any exhibits, schedules, written supplements, and amendmentsthereto, and all Transactions shall be referred to as the “Agreement.”

Unless the context otherwise specifies or requires, capitalized terms in this Agreement have the meanings set forth in Article1.

RECITALS

WHEREAS, the Parties wish to buy and sell the Product (as defined herein) on the terms and conditions set forth in the Agreement;

NOW THEREFORE, in consideration of their mutual covenants herein, the Parties agree as follows:

ARTICLE 1DEFINITIONS

1.1.Contract Definitions.

The following terms, when used herein with initial capitalization, shall have the meanings set forth below:

“Act” means the Joint Exercise of Powers Act of the State of California (Government Code Section 6500, et seq.).

“Agreement” has the meaning set forth in the preamble.

“Applicable Laws” means all constitutions, treaties, laws, ordinances, rules, regulations, interpretations, permits, judgments, decrees, injunctions, writs and orders of any Governmental Authority that apply to either or both of the Parties, the Project or the terms of this Agreement.

“As-Available” means a Product for which, subject to the terms of this Agreement, (i) Seller is obligated to sell and deliver and (ii) Buyer is obligated to purchase and receive the Energy component of the Product from the Project whenever such Energy is capable of being generated from the Project.

“Business Day” means a day on which Federal Reserve member banks are open for business, beginning at 5:00a.m. and ending at 5:00p.m. Pacific Prevailing Time.

“CAISO” means the California Independent System Operator, or its successor.

“CEC” means the California Energy Commission.

“Compliance Instruments” means any benefits, attributes, instruments, tracking mechanisms, or rights associated with the generation of one (1) MWh of Energy from a source of renewable energy, as that is defined in the RPS, which may be transferred in the form of a certificate, credit, allowance or other indication of ownership in accordance with and for the purposes of recording compliance with an RPS obligation, including but not limited to, WREGIS Certificates.

“Confirmation Letter” means a Confirmation Letter in the form of Exhibit A, which is used by the Parties to document a Transaction and constitutes part of and is subject to the terms and provisions of this Agreement.

“Contract Price” means the amount payable by Buyer to Seller for the Product as agreed upon in the applicable Transaction.

“Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions, legal expenses and other similar third-party transaction costs and expenses reasonably incurred by that Party in liquidating or replacing a Terminated Transaction pursuant to Section9.2, entering into any new arrangement that replaces a Terminated Transaction, and, unless there has been a change in law and after Seller has used commercially reasonable efforts to comply therewith, any charges, penalties, fines or fees imposed or assessed against the Non-Defaulting Party under the California Renewables Portfolio Standard on account of Delivery not occurring during the Delivery Term, as determined by the Non-Defaulting Party in a commercially reasonable manner.

“CPUC” means the California Public Utilities Commission.

“Credit Rating” means, with respect to any entity, the rating then assigned to such entity’s unsecured, senior long-term debt obligations (not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then the rating then assigned to such entity as an issuer rating by S&P or Moody’s. If ratings by S&P and Moody’s are not equivalent, the lower rating shall apply.

“Deliver”,“Delivered” and “Delivery” have the meanings set forth in Section2.4.

“Delivery Period” means the period during which Delivery will occur, as specified in the applicable Confirmation Letter.

“Eligible Renewable Resources” means sources of renewable energy that meet all requirements of the California Renewables Portfolio Standard.

“Energy” means electrical energy, measured in MWh.

“Firm” means, with respect to a Transaction, that either Party shall be relieved of its obligations to sell and deliver or purchase and receive without liability only to the extent that, and for the period during which, such performance is prevented by Force Majeure. In the absence of Force Majeure, the Party to which performance is owed shall be entitled to receive from the Party which failed to deliver/receive an amount determined pursuant to the applicable Confirmation Letter for such Transaction.

“Force Majeure” means an event or circumstance that materially adversely affects the performance by a Party (“Claiming Party”) of its obligations under this Agreement, which event or circumstance was not reasonably anticipated as of the Trade Date and which is not within the reasonable control of, or the result of negligence of, the Claiming Party, and which the Claiming Party is unable to overcome or avoid or cause to be avoided by the exercise of due diligence, and includes such events as acts of God; fire; flood; earthquake; war; riots; or terrorism that affects one or both Parties. Force Majeure may not be based on (i) the loss or failure of Buyer’s markets; (ii) Buyer’s inability economically to use or resell the Product; (iii) Seller’s ability to sell the Product to another party on terms superior to Seller's terms herein; (iv) Buyer’s ability to purchase similar Product from another party on terms superior to the Buyer’s terms herein; or (v)Seller’s failure to obtain or maintain its permits, interconnection or transmission rights, and site control rights, each with respect to the Project unless any such failure is due to an act of God, fire, flood, earthquake, war, riots or terrorism. With respect to a Party’s obligation to make payments hereunder, Force Majeure will be only an event or act of a governmental authority that on any day disables the banking system through which a Party makes such payments. Force Majeure does not include any action taken by Buyer in its governmental capacity.

“Gains” means the present value of the economic benefit to a Party, if any (exclusive of Costs), resulting from the termination of a Terminated Transaction, determined in a commercially reasonable manner.

“Governmental Authority” means:

(a)Any federal, state, local, municipal or other government;

(b)Any governmental, regulatory or administrative agency, commission, or other authority lawfully exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power; or

(c)Any court or governmental tribunal.

“Interest Rate” is equal to the prime lending rate published under the heading “Money Rates” in the Wall Street Journal on the date of calculation.

“Joint Powers Agreement”means that certain agreement creating Buyer, with an effective date of December 19, 2008.

“Letter(s) of Credit” means one or more irrevocable, standby letters of credit issued by a U.S. commercial bank or a foreign bank with a U.S. branch with such bank having a Credit Rating of at least A- with an outlook designation of “stable” from S&P or A3 with an outlook designation of “stable” from Moody’s, in a form substantially similar to the letter of credit set forth in Exhibit B.

“Losses” means the present value of the economic loss to a Party, if any (exclusive of Costs), resulting from a Terminated Transaction, determined in a commercially reasonable manner.

“Moody’s” means Moody’s Investors Service, Inc., or its successor.

“MWh” means megawatt-hour.

“Non-Firm” means, with respect to a Transaction, that delivery or receipt of the Product may be interrupted for any reason or for no reason, without liability on the part of either Party.

“Performance Security” means (i) cash or (ii) a Letter of Credit, in the amount specified inaConfirmation Letter.

“Product” has the meaning set forth in the applicable Confirmation Letter.

“Project” means the resource(s) designated in the Confirmation Letter from which the Seller will Deliver the Product.

“Renewable Energy Credit” or “REC” has the meaning set forth in CPUC Decision D.08-08-028, as such definition may be modified by the CPUC or Applicable Law from time to time.

“RPS”or “California Renewables Portfolio Standard” means the renewable energy program and policies established by Senate Bills 1038 and 1078 and 2 (1X) codified in California Public Utilities Code Sections 399.11 et seq and California Public Resources Code Sections 25740 through 25751, as such provisions are amended or supplemented from time to time.

“Replacement Price” shall mean the price calculated by Buyer at which (a) Buyer, acting in a commercially reasonable manner, purchases a replacement for any Product specified in a Transaction but not Delivered by Seller, plus (i) costs reasonably incurred by Buyer in purchasing such substitute Product, (ii) penalties and fines, if any, and (iii) additional transmission charges, if any, reasonably incurred by Buyer to the Delivery Point, or at Buyer’s option, (b) the market price at the Delivery Point for such Product not Delivered as determined by Buyer in a commercially reasonable manner; provided in no event shall (a) or (b) exceed $100/MWh.

“Replacement Product” means Product meeting all requirements of the Transaction, including that the WREGIS Certificates associated with Replacement Product be of the same vintage, except for the requirements that such Product (i) be produced by the Facility and (ii) have been delivered during the originally required month of the Delivery Period.

“Reporting Period” means a year or other period of time specified by the California Renewables Portfolio Standard and the applicable Confirmation Letter toward which eligible RECs may be applied or claimed.

“Reporting Rights” means the right to report and register the exclusive ownership of the Renewable Energy Credits and any Compliance Instruments in compliance with federal, state, or local law, if applicable, and to a federal or state agency or any other party at the Buyer’s discretion, and include without limitation those Reporting Rights accruing under Section 1605(b) of the Energy Policy Act of 1992 and any present or future federal, state, or local law, regulation or bill, and international or foreign emissions trading program.

“S&P” means the Standard & Poor’s Financial Services, LLC (a subsidiary of The McGraw-Hill Companies, Inc.) or its successor.

“Settlement Amount” means the Losses or Gains, and Costs, which the Non-Defaulting Party incurs as a result of the liquidation of Terminated Transactions pursuant to Section9.2. If the Non-Defaulting Party’s Gains exceed its Costs and Losses, then the Settlement Amount will be zero dollars ($0.00). The Settlement amount does not include consequential, incidental, punitive, exemplary, indirect, or business interruption damages.

“Tariff” means the CAISO Fifth Replacement FERC Electric Tariff, as amended from time to time.

“Trade Date” means the “Trade Date” specified in the applicable Confirmation Letter.

“Transaction” means a particular transaction agreed to by the Parties in writing pursuant to a Confirmation Letter relating to the sale and purchase of Product under this Agreement.

“WECC” means the Western Electricity Coordinating Council, the regional reliability council for the Western United States, Northwestern Mexico and Southwestern Canada.

“WREGIS” means the Western Renewable Energy Generation Information System.

“WREGIS Certificate(s)” has the same meaning as “Certificate” as defined by WREGIS in the WREGIS Operating Rules.

“WREGIS Operating Rules” means the rules published by the Western Electricity Coordination Council for the rules and operations of WREGIS.

1.2Rules of Interpretation.

In this Agreement, except as expressly stated otherwise or unless the context otherwise requires:

(a)headings and the rendering of text in bold and italics are for convenience and reference purposes only and do not affect the meaning or interpretation of this Agreement;

(b)words importing the singular include the plural and vice versa and the masculine, feminine and neuter genders include all genders;

(c)the words “hereof”, “herein”, and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

(d)a reference to an Article, Section, paragraph, clause, Party, or Exhibit is a reference to that Section, paragraph, clause of, or that Party or Exhibit to, this Agreement unless otherwise specified, and in the event of a conflict, the provisions of the main body of this Agreement shall prevail over the provisions of any attachment or annex;

(e)a reference to a document or agreement, including this Agreement shall mean such document, agreement or this Agreement including any amendment or supplement to, or replacement, novation or modification of this Agreement, but disregarding any amendment, supplement, replacement, novation or modification made in breach of such document, agreement or this Agreement;

(f)a reference to a Person includes that Person’s successors and permitted assigns;

(g)the term “including” means “including without limitation” and any list of examples following such term shall in no way restrict or limit the generality of the work or provision in respect of which such examples are provided;

(h)references to any statute, code or statutory provision are to be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or reenacted, and include references to all bylaws, instruments, orders and regulations for the time being made thereunder or deriving validity therefrom unless the context otherwise requires;

(i)in the event of a conflict, a mathematical formula or other precise description of a concept or a term shall prevail over words providing a more general description of a concept or a term;

(j)references to any amount of money shall mean a reference to the amount in United States Dollars;

(k)the expression “and/or” when used as a conjunction shall connote “any or all of”;

(l)words, phrases or expressions not otherwise defined herein that (i) have a generally accepted meaning in Prudent Operating Practice shall have such meaning in this Agreement or (ii) do not have well known and generally accepted meaning in Prudent Operating Practice but that have well known and generally accepted technical or trade meanings, shall have such recognized meanings; and

(m)each Party acknowledges that it was represented by counsel in connection with this Agreement and that it or its counsel reviewed this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.

ARTICLE 2TERM AND TRANSACTION

2.1.Term.

The term (“Term”) of this Agreement commences on the Effective Date and continues until terminated by either Party upon thirty (30) days’ prior notice, except that any such termination is not effective until all payments, Deliveries and other obligations of the Parties under all Transactions under this Agreement have been completed.

2.2.Transaction.

Unless specifically excused by the terms of this Agreement during the Delivery Period of any Transaction, Seller shall sell and Deliver, or cause to be Delivered, and Buyer shall purchase and receive, or cause to be received, the Product, and Buyer shall pay Seller the Contract Price, all in accordance with the terms of this Agreement, including the Confirmation Letter associated with any Transaction. The Parties recognize that Seller is not a retail provider, the transaction is a sale for resale, and Buyer will resell the Product purchased from Seller to third parties.

2.3.Renewable Energy Credits.

Seller hereby provides and conveys to Buyer all Renewable Energy Credits associated with the Metered Quantity generated by the Project as part of the Product being delivered. Seller represents and warrants that Seller holds the rights to all Renewable Energy Credits associated with the Product, and Seller agrees to convey and hereby conveys all such Renewable Energy Credits to Buyer as included in the Delivery of the Product from the Project.

2.4.Delivery.

During any Delivery Period specified in a Confirmation Letter, Seller will deliver (i) the Project Energy to the Delivery Point and, (ii) if applicable to the Product, the Renewable Energy Credits to Buyer through WREGIS (collectively, “Deliver”,“Delivered” or “Delivery”). The Parties intend for the Product to be physically settled. Each Party will bear its own expenses associated with Delivery. Delivery will consist of Product in whole MWh. If, at any time during the Delivery Period, Compliance Instruments associated with the Product are created and issued to Seller, Seller will transfer those Compliance Instruments to Buyer within ten (10) Business Days of the date of issuance of such Compliance Instruments.

2.5.Title and Risk of Loss.

Title to and risk of loss related to the Product shall transfer from Seller to Buyer at the Delivery Point. Seller warrants that it will deliver to Buyer the Contract Quantity of the Product free and clear of all liens, security interests, claims and encumbrances or any interest therein or thereto by any person arising prior to the Delivery Point.

ARTICLE 3REPRESENTATIONS

3.1.Authority.

(a)As of the Effective Date, each Party represents and warrants to the other Party that (i)it is a legal entity, duly formed or incorporated and validly existing and in good standing under the laws of the state of its formation or incorporation, (ii)it has the full power and authority to execute, deliver, and perform this Agreement; (iii)its execution and delivery hereof and performance of the Agreement have been duly authorized by all requisite entity action, and this Agreement has been duly executed and delivered by it and constitutes its legal, valid, and binding obligations, enforceable against it in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors’ rights and by equitable principles; (iv)no authorization, consent, notice to or registration or filing with any governmental authority is required for the execution, delivery and performance by it hereof; (v)none of the execution, delivery and performance by it hereof conflicts with or will result in a breach or violation of any law, contract or instrument by which it is bound; (vi)there are no proceedings by or before any governmental authority, now pending or (to the knowledge of such Party) threatened, that if adversely determined could have a material adverse effect on such Party’s ability to perform the Party’s obligations under this Agreement; (vii) no Event of Default with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement; and (viii) it is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreement.