ENERGY PURCHASE AGREEMENT
ENERGY PURCHASE AGREEMENTby and betweenFuelCell Energy, Inc.("Seller")andCentral Connecticut State University("Purchaser")
TABLE OF CONTENTSPAGEARTICLE 1 DEFINITIONS . 2ARTICLE 2 SALE AND PURCHASE OF ENERGy . 72.1Summary Description . 72.2Delivery of Electricity. 72.3Delivery of Steam . 8ARTICLE 3 BILLING AND PAyMENT. 93.1Invoices . 93.2Payment. . 9ARTICLE 4 TITLE; RISK OF LOSS; FACILITY OWNERSHIP . 94.1Title . 94.2Risk of Loss and Exclusive ControL . 9ARTICLE 5 CURTAILMENT AND MODIFICATION . 105.1Curtailment . 105.2Modification of the Facility . 10ARTICLE 6 TERM AND TERMINATION .6.1Term .6.2Purchaser Options at Expiration or Termination Date .6.3Termination.10101010ARTICLE 7 COOPERATION AND APPROVALS .7.1Cooperation .7.2Approvals .7.3Compliance with Applicable Law .11111111ARTICLE 8 CONSTRUCTION, OPERATIONS AND MAINTENANCE .8.1Construction and Commercial Operation .8.2Environmental Responsibilities .8.3Operation and Maintenance .8,4Malfunctions and Emergencies .1111121213ARTICLE 9 SITE ACCESS AND UTILITIES . 139.1License Agreement . 139.2Access. 139.3Phone Lines . 139.4Fuel Supply . 139.5Water Supply . 149.6Feedwater Return . 14
9.7Discharge Water; Electricity . 14ARTICLE 10 TAXES . 15ARTICLE 11 JNCENTIVES AND REBATES . 15ARTICLE 12 REPRESENTATIONS AND WARRANTIES .12.1 By Purchaser .12.2 By Seller. .12.3 Limitation of Warranty .15151616ARTICLE 1313.113.213.317171818DEFAULT AND TERMJNATION .Events of Default .Remedies Following Default .No Waiver .ARTICLE 14 NO PARTNERSHIP; JNDEPENDENT SELLER . 1914.1 Independent Contractors . 1914.2 Not a Lease . 19ARTICLE 15 METER MAJNTENANCE AND RECORDS . 19ARTICLE 16 PROPRIETARY JNFORMATION . 2016.1 Definition of Proprietary Information . 2016.2 Use of Proprietary Information . 2016.3 Disclosure to Affiliates . 2116.4 Publicity . 2116.5 Exceptions . 2116.6 Term of Obligations . 2216.7 Stack Integrity . 2216.8 Software and Other Intellectual Property Integrity . 22ARTICLE 17 MATERIAL CHANGED CONDITIONS, ADVERSE REGULATION, AND . 22FORCE MAJEURE . 2217.1 Material Changed Conditions. . . 2317.2 Adverse Regulation . 2317.3 Force Majeure . 23ARTICLE 18 JNDEMNIFICATION BY SELLER . 24ARTICLE 19 JNSURANCE. 2519.1 Insurance . 2519.2 Property Damage Insurance .2519.3 Certificates of Insurance . 2519.4 Occurrence Policy . 26ARTICLE 20 lVIISCELLANEOUS . 2620.1 Applicable Law. . . . 2620.2 State Liability . , . 2620.3 Notice . 26n
0.1520.1620.1720.1820.1920.20Claims Against the State . 27Non-Discrimination .27Executive Orders .29Campaign Contribution Restrictions .30Whistleblowing . , .33Complete Agreement; Modification . 34Third Party Beneficiaries . 34Assignment, Successors and Assigns . 34Savings Clause . 35Removal of Liens . 35Sovereign Immunity .35Disputes .35Captions . " . 36Entire Agreement .36Conflict .36Modification of Agreement . , . 36Counterparts .36EXHIBITSExhibit AExhibit BExhibit CExhibit DExhibit EExhibit FExhibit GExhibitHLicense AgreementInterconnection PointsEnergy Capacity and PricingSteam Capacity and ValueSteam and Feedwater SpecificationsFuel Supply SpecificationsWater Supply SpecificationsEmergency Contactsiii
ENERGY PURCHASE AGREEMENTThis ENERGY PURCHASE AGREEMENT (this "Agreement:) is made as ofSeptember , 2011 (the "Effective Date"), by and between FuelCell Energy, Inc., aDelaware corporation licensed to do business in Connecticut with a principal place of business at3 Great Pasture Road, Danbury, Connecticut ("Seller"), and Central Connecticut State University,a public institution of higher education with a principal place of business at 1615 Stanley Street,New Britain, Connecticut ("Purchaser"). Seller and Purchaser are sometimes referred to hereinindividually as a "Party" and collectively as the "Parties."WITNESSETH:WHEREAS, Seller desires to construct, own and operate a fuel cell facility on a site atthe campus of Purchaser located in New Britain, Connecticut, which is more particularlydescribed in the License Agreement, a copy of which is appended hereto as Exhibit A(hereinafter the "Property"); andWHEREAS, Seller desires to sell and deliver to Purchaser, and Purchaser desires topurchase and receive from Seller, all electricity and steam generated by the Facility (as definedherein) during the term of this Agreement and otherwise on terms and subject to the conditionsprovided herein; andWHEREAS, Seller will design, develop and construct the Facility, and will own theFacility; andWHEREAS, Seller will operate and maintain the Facility during the term of and inaccordance with this Agreement.NOW THEREFORE, in consideration of the mutual obligations and undertakingsherein contained, and intending to be legally bound hereby, the Parties hereto agree as follows:ARTICLE 1DEFINITIONSUnless otherwise required by the context in which any term appears: (i) capitalized termsused in this Agreement shall have the meanings specified in this Article 1; (ii) the singular shallinclude the plural and vice versa; (iii) references to "articles," "Sections," "schedules,""annexes," "appendices" andlor "exhibits," if any, shall be to Articles, Sections, Schedules,Annexes, Appendices or Exhibits hereof; (iv) all references to a particular entity shall include areference to such entity's successors and permitted assigns; (v) the words "herein," "hereof' and"hereunder" shall refer to this Agreement as a whole and not to any particular Article orsubparagraph hereof; (vi) all accounting terms not specifically defined herein shall be construedin accordance with generally accepted accounting principles in the United States of America,consistently applied; (vii) references to this Agreement shall include a reference to allappendices, annexes, schedules and exhibits hereto, as the same may be amended, modified,2
supplemented or replaced from time to time; and (viii) the masculine shall include the feminineand neuter and vice versa.Certain terms in this Agreement shall be defined as follows:"Affiliate" shall mean, with respect to a person or entity, each person or entity thatdirectly or indirectly controls, is controlled by or is under common control with, such person orentity. For purposes of this definition, "control" (including, with its correlative meanings, theterms "controlled by" and "under common control with"), as used with respect to any suchperson or entity, means the possession, directly or indirectly, of the power to direct or cause thedirection of the management and policies of such person or entity, whether through theownership of voting securities or by contract or otherwise."Applicable Law" shall mean, with respect to any Person, all applicable laws, statutes,codes, acts, treaties, ordinances, orders, judgments, writs, decrees, injunctions, rules, regulations,governmental approvals, licenses and permits, directives and requirements of all regulatory andother governmental authorities."Average Electricity Capacity" shall mean, with respect to any Operation Year, theaverage hourly electric capacity (expressed in kW) of the Facility for such Operation Year."Business Day" shall mean each Monday through and including Friday during the Termother than nationally recognized holidays and holidays recognized by the State of Connecticutand observed by Purchaser."Capacity Adjustment Amount" shall mean in a particular Operation Year, thecalculation of (i) 1.00 less the quotient of (a) the Average Electricity Capacity as numerator and(b) the Minimum Electricity Guarantee as denominator, such quotient shall never exceed 1.00;multiplied by (ii) 12; multiplied further by (iii) the Monthly Payment in Exhibit C for theOperation Year which the calculation is being made. Example: Assume that in Operation YearI, the Average Electricity Capacity delivered is 1,290 kW. The Minimum Electricity Guaranteeper Exhibit C is 1,303 kW. The total of the monthly payments for Operation Year 1 is 948,000( 79,OOO/month x 12 months). The percentage reached by dividing the Average ElectricityCapacity (1,290 kW) by the Minimum Electricity Guarantee (1,303 kW) equals a factor of 0.99.1.00 minus 0.99 equals a 0.01 adjustment factor. The Capacity Adjustment Amount forOperation Year 1 would equal 948,000 multiplied by 0.01, which equals a credit of 9,480."Code" shall mean the Internal Revenue Code of 1986, as amended."Commercial Operation Date" shall mean the occurrence of Seller certifying to Purchaserthat: (i) the electric generating equipment and all auxiliary equipment and control systems of theFacility have been completely installed and commissioned, including, but not limited to, theprocess of starting up, testing and normalization of all operating systems; and (ii) the Facility hasdemonstrated that it has generated and delivered Electricity to the Electricity Delivery Point.3
"Electricity" shall mean electricity generated by the Facility."Electricity Delivery Point" shall mean the meter point at which Electricity from theFacility is delivered to Purchaser's electrical system "Energy" shall mean the Electricity and Steam generated by the Facility."Environmental Attributes" means any and all credits, benefits, emissions reductions,offsets, allowances, incentives, and rebates, howsoever entitled, attributable to an operation orprocess, including but not limited to renewable energy credits, as well as: (1) any avoidedemissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides(NOx), carbon monoxide (CO) and other pollutants; (2) any avoided emissions of carbondioxide (C02), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfurhexafluoride and other greenhouse gases (GHGs) that have been determined by the UnitedNations Intergovernmental Panel on Climate Change, or otherwise by law, to contribute to theactual or potential threat of altering the earth's climate by trapping heat in the atmosphere; and(3) the reporting rights to these avoided emissions, including the right of a party to report theownership of accumulated offsets, green tags, or renewable energy credit reporting rights underany present or future federal, state, or local law, regulation or bill, and international or foreignemissions trading program (which, as of the Effective Date include certificates issued by Green-ein accordance with the Green-e Renewable Electric Certification Program, National StandardVersion 1.3 administered by the Center of Resource Solutions)."Environmental Incentives" shall mean all rights, credits, benefits, reductions, offsets,allowances and entitlements of any kind, howsoever entitled or named, whether arising underfederal, state or local law, international treaty, trade association membership or the like, arisingfrom the Environmental Attributes of the Facility, the Electricity, the Steam or otherwise fromthe development or installation of the Facility or the production, sale, purchase, consumption oruse of the Electricity or the Steam. Without limiting the foregoing, "Environmental Incentives"includes green tags, renewable energy credits, tradable renewable certificates, carbon emissionsoffsets, carbon financial instruments, portfolio energy credits, and other such credits andallowances that are unknown at the time of this Agreement but that become available inconnection with the generation of electricity from the Facility under any governmental,regulatory or voluntary program, including without limitation the United Nations FrameworkConvention on Climate Change and related Kyoto Protocol. Environmental Incentives shall notinclude (i) any Tax Incentives or (ii) any Rebates."Expiration Date" shall have the meaning assigned to such term in Section 6.1."Event of Default" shall have the meaning assigned to such term in Section 13.1."Facility" means the Seller's Direct FuelCell (DFC ) 1500 power plant, including theDFC 1500 Fuel Cell Module, the Electrical Balance of Plant (EBOP), the Mechanical Balance ofPlant (MBOP) and the Steam Heat Recovery Unit (HRU)."Feed Water" shall have the meaning assigned to such term in Section 9.64
"Fuel Cell Module" means the Seller's DFC 1500 Fuel Cell Module."Force Majeure" shall have the meaning assigned to such term in Article 17."kWac" shall mean a kilowatt of power alternating current."kWh" shall mean a kilowatt hour of electricity."Lender(s)" shall mean any and all individuals or entities or successors in interest thereoflending money or extending credit to Seller, or investing equity in Seller in a manner that willprovide certain of the tax benefits from the Facility to such individual or entity or successor ininterest (i) for the construction, term or permanent financing of the Facility, (ii) for workingcapital or other ordinary business requirement of the Facility (including but not limited to themaintenance, repair, replacement or improvement of the Facility), (iii) for any developmentfinancing, bridge financing, credit enhancement or interest rate protection in connection with theFacility, (iv) for the ownership and operation of the Facility, or (v) for the purchase of theFacility and related rights and obligations of Seller."License Agreement" means the license agreement between Seller and Purchaser, a copyof which is appended hereto as Exhibit A."Lien" shall have the meaning assigned to such term in Section 20.12."Meter" shall mean an instrument or instruments meeting applicable industry standardsused to measure and record the volume and other required delivery characteristics of theElectricity or Steam, as applicable, delivered hereunder."Minimum Electricity Guarantee" shall mean, with respect to any Operation Year, theelectric generation capacity of the Facility, as set forth in Exhibit C, adjusted for ISO correctionsto standard conditions and scheduled maintenance of the Facility and natural gas interruptions,water supply interruptions, wastewater discharge interruptions, Campus and Grid electricalsystem interruptions and all other interruptions outside the control of the Supplier."Minimum Steam Guarantee" shall mean the Steam quantities set forth in Exhibit C;provided, however, that such guaranty shall only be applicable when the Seller is actuallyproducing electricity."Operation and Maintenance" shall have the meaning assigned to such termSection 8.3.In"Operation Year" means each successive one-year period following the CommercialOperation Date through the end of the Term."Outside Date" shall have the meaning assigned to such term in Section 8.1.5.
"Person" shall mean an individual, partnership, corporation, company, business trust,joint stock purchaser, trust, unincorporated association, joint venture, governmental authority,limited liability purchaser or any other entity of whatever nature."Property" shall have the meaning assigned to such term in the Recitals to thisAgreement."Proprietary Information" shall have the meaning assigned to such term in Section 16.1."Prudent Operating Practices" shall mean the practices, methods and standards ofprofessional care, skill and diligence engaged in or approved by a significant portion of theelectric generation industry for facilities of similar size, type, and design as the Facility, that inthe exercise of reasonable judgment, in light of the facts known at the time would have beenexpected to accomplish results consistent with law, regulation, reliability, safety, environmentalprotection, applicable codes, and standards of economy and expedition."Rebate" shall mean any and all local, state, federal or utility rebates or other fundingoffered for the development of fuel cell projects, including, but not limited to funding availableunder the Connecticut Clean Energy Fund and the American Recovery and Reinvestment ActFuel Cell Program Opportunity."Site" shall mean that part of the Property on which the Facility will be located, as morefully described in the License Agreement."Steam" shall mean steam generated by the Facility."Steam Adjustment Amount" shall mean in a particular Operation Year, the calculationof (i) 1.00 less the quotient of (a) the Steam actually generated by the Facility as numerator and(b) the Steam Capacity set forth in Exhibit D as denominator, such quotient shall never exceed1.00; multiplied by (ii) 12; multiplied further by (iii) the Monthly Value in Exhibit D for theOperation Year which the calculation is being made. Example: Assume that in Operation Year1, the Steam delivered is 1,584 pounds per hour. The Steam Capacity per Exhibit D is 1,600pounds per hour. The total of the monthly payments for Operation Year I is 227,820( 18,985/month x 12 months). The percentage reached by dividing the Steam delivered (1,584pounds per hour) by the Steam Capacity (1,600 pounds per hour) equals a factor of 0.99. 1.00minus 0.99 equals a .01 adjustment factor. The Steam Adjustment Amount for Operation Year 1would equal 227,820 multiplied by 0.01, which equals a credit of 2,278.20."Steam Delivery Point" shall mean the point at which Steam from the Facility isinterconnected with Purchaser's steam system, as more particularly described in Exhibit A,which is subject to revision by Seller during detailed engineering."Tax Incentives" shall mean any local, state or federal tax credits, depreciation (includingbonus depreciation), deductions or rebates related to the construction, ownership or operation ofthe Facility. Without limiting the foregoing, Tax Incentives shall include the right to claimfederal income tax credits under Section 45 (i.e., Production Tax Credit) and/or Section 48 (i.e.,6
Investment Tax Credit) of the Code. Tax Incentives also shall include any grants or paymentsmade in lieu of tax credits available under Section 45 or Section 48 of the Code."Term" shall have the meaning set forth in Article 6."Termination Date" shall have the meaning assigned to such term in Section 6.1."Transferor" shall have the meaning assigned to such term in Section 16.2."Transferee" shall have the meaning assigned to such term in Section 16.2."Transmission System" shall mean the Purchaser's electrical transmission system.ARTICLE 2SALE AND PURCHASE OF ENERGY2.1Summary Description. Seller will cause to be constructed, will own, and will beresponsible for the Operation and Maintenance of the Facility.2.2Delivery of Electricity. Commencing on the Commercial Operation Date andcontinuing throughout the remainder of the Term, Seller shall deliver to Purchaser at theElectricity Delivery Point as and when available, and Purchaser shall purchase and accept, allElectricity generated by the Facility. Electricity delivered hereunder shall comply with IEEE1547 standards. Seller shall provide to Purchaser Electricity at the quantities set forth in Exhibit(a)If Seller is unable to deliver the Minimum Electricity Guarantee (the values forwhich are set forth in the Minimum Electricity Capacity column in Exhibit C with respect to anyparticular Operation Year), unless such inability is due to an event of Force Majeure or AdverseRegulation as defined in Article 17 hereof (in which case the provisions of Article 17 shallcontrol), then Purchaser's payment to Seller will be adjusted in the subsequent Operation Year.At the end of each Operation Year, Seller shall calculate the Capacity Adjustment Amount, ifany, for such Operation Year and such amount shall be applied, as a credit, in three (3) equalinstallments against the first three (3) monthly invoices issued by Seller to Purchaser for Energyduring the following Operation Year. Should any such credit become due and payable after theexpiration or earlier termination of this Agreement, Seller shall issue a check to Purchaser for theamount due.Notwithstanding anything herein to the contrary, if Seller's inability to deliver theMinimum Electricity Guaranty is due to: (i) the failure of Purchaser to supply the Feedwater, theFuel Supply, the Water Supply and/or other utilities to be provided hereunder except if suchfailure is due to an event of Force Majeure or Adverse Regulation (in which case the provisionsof Article 17 hereof shall control); or (ii) the failure of Purchaser to provide access to the Site;Purchaser shall continue to pay Seller pursuant to the rates set forth in Exhibit C and Purchasershall be entitled to no credit. In addition, if Seller's inability to deliver the Minimum ElectricityGuaranty is due to the reasons set forth in this Section 2.2(b), Purchaser shall make good faithefforts to promptly remove any condition(s) causing such inability.(b)7
2.3Delivery of Steam. Commencing on the Commercial Operation Date andcontinuing throughout the remainder of the Term, Seller shall deliver to Purchaser at the SteamDelivery Point as and when available, and Purchaser shall accept, all Steam generated by theFacility. Seller shall provide to Purchaser Steam if and only if the Plant is producing electricityat the quantities set forth in Exhibit C. Steam delivered hereunder shall meet the specificationsset forth in Exhibit E.If Seller is unable to deliver the Minimum Steam Guarantee (the values for which(a)are set forth in the Steam Capacity column in Exhibit C with respect to any particular OperationYear), unless such inability is due to an event of Force Majeure or Adverse Regulation asdefined in Article 17 hereof (in which case the provisions of Article 17 shall control), thenPurchaser's payment to Seller will be adjusted in the subsequent Operation Year. At the end ofeach Operation Year, Seller shall calculate the Steam Adjustment Amount, if any, for suchOperation Year and such amount shall be applied, as a credit, in three (3) equal installmentsagainst the first three (3) monthly invoices issued by Seller to Purchaser for Energy during thefollowing Operation Year. Should any such credit become due and payable after the expirationor earlier termination of this Agreement, Seller shall issue a check to Purchaser for the amountdue.(b)Notwithstanding anything herein to the contrary, if Seller's inability to deliver theMinimum Steam Guaranty is due to: (i) the failure of Purchaser to supply the Feedwater, theFuel Supply, the Water Supply and/or other utilities to be provided hereunder except if suchfailure is due to an event of Force Majeure or Adverse Regulation (in which case the provisionsof Article 17 hereof shall control); or (ii) the failure of Purchaser to provide access to the Site,Purchaser shall be entitled to no reimbursement from Seller. In addition, if Seller's inability todeliver the
9.1 License Agreement . Exhibit F Fuel Supply Specifications Exhibit G Water Supply Specifications ExhibitH Emergency Contacts . iii . ENERGY PURCHASE AGREEMENT . This ENERGY PURCHASE AGREEMENT (this "Agreement:) is made as of September_, 2011 (the "Effective Date"), by and between FuelCel
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PURCHASE AGREEMENT 46. Page 2 Date 47. Property located at . 48. This Purchase Agreement IS IS NOT subject to an Addendum to Purchase Agreement: Sale of Buyer's Property -----k one.)-----(Chec49. Contingency for sale of Buyer's property.(If answer is IS, see attached Addendum.) 50. (If answ er is IS NOT, the closing of Buyer's property, if any, may still affect Buyer's ability to .
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