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BrightSource Energy Inc – IPO: ‘S-1/A’ on 3/9/12 – EX-10.30

On:  Friday, 3/9/12, at 7:06am ET   ·   Accession #:  1193125-12-105282   ·   File #:  333-173686

Previous ‘S-1’:  ‘S-1/A’ on 2/10/12   ·   Next:  ‘S-1/A’ on 3/21/12   ·   Latest:  ‘S-1/A’ on 3/30/12

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 3/09/12  BrightSource Energy Inc           S-1/A                 21:24M                                    RR Donnelley/FA

Document/Exhibit                   Description                      Pages   Size 

 1: S-1/A       Amendment No. 7 to Form S-1                         HTML   2.01M 
 2: EX-2.1      Ivanpah I Equity Participation Agreement            HTML   1.24M 
 3: EX-2.2      Ivanpah Ii Equity Participation Agreement           HTML   1.26M 
 4: EX-2.3      Ivanpah Iii Equity Participation Agreement          HTML   1.21M 
 7: EX-10.19    Amended and Restated Preferred Partnership          HTML    232K 
                          Agreement                                              
 8: EX-10.20    Amended and Restated Preferred Equipment Supplier   HTML    308K 
                          Agreement                                              
 9: EX-10.21    Master Services Agreement                           HTML   2.74M 
10: EX-10.22    Solar Field Agreement - Ivanpah I Solar Power       HTML    796K 
                          Project                                                
11: EX-10.23    Solar Field Agreement - Ivanpah Ii Solar Power      HTML    808K 
                          Project                                                
12: EX-10.24    Solar Field Agreement - Ivanpah Iii Solar Power     HTML    807K 
                          Project                                                
13: EX-10.25    Solar Field Supply Subcontract - Ivanpah 1 Solar    HTML    636K 
                          Power Project                                          
14: EX-10.26    Solar Field Supply Subcontract - Ivanpah 2 Solar    HTML    684K 
                          Power Project                                          
15: EX-10.27    Solar Field Supply Subcontract - Ivanpah 3 Solar    HTML    683K 
                          Power Project                                          
16: EX-10.28    Equity Funding Agreement                            HTML    276K 
17: EX-10.29    Equity Funding Agreement                            HTML    275K 
 5: EX-10.3     2011 Omnibus Equity Incentive Plan                  HTML     95K 
18: EX-10.30    Equity Funding Agreement                            HTML    276K 
19: EX-10.31    Loan Agreement                                      HTML    671K 
20: EX-10.39    First Amendment to Loan and Security Agreement      HTML     22K 
 6: EX-10.4     2011 Employee Stock Purchase Plan                   HTML     70K 
21: EX-23.1     Consent of Deloitte & Touche LLP                    HTML      9K 

Exhibit 10.30

* CERTAIN INFORMATION, MARKED BY BRACKETS AND AN ASTERISK, IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

EQUITY FUNDING AGREEMENT

among

BRIGHTSOURCE ENERGY, INC.

as Sponsor

BRIGHTSOURCE IVANPAH HOLDINGS, LLC

as Equity Contributor

NRG SOLAR IVANPAH LLC

as Equity Contributor

DANKE SCHOEN PROJECT LLC

as Equity Contributor

SOLAR PARTNERS VIII, LLC,

as Borrower

U.S. DEPARTMENT OF ENERGY,

as Credit Party, Guarantor and initial Loan Servicer

and

PNC BANK, NATIONAL ASSOCIATION,

doing business as Midland Loan Services,

a division of PNC Bank, National Association,

as Collateral Agent

Dated as of April 5, 2011

TABLE OF CONTENTS

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EQUITY FUNDING AGREEMENT

THIS EQUITY FUNDING AGREEMENT (this “Agreement”) is dated as of April 5, 2011, by and among:

WHEREAS, the Borrower intends to develop, construct, own and operate a nominal 133 MW solar thermal electric generating plant and certain common facilities serving such plant (the “Project”).

WHEREAS, in order to finance a portion of the cost of the Project, BrightSource Ivanpah, NRG Solar and Google Ivanpah (collectively, the “Equity Contributors”) will together provide 100% of the Equity Contributions required for the construction of the Project on the terms and conditions set forth herein.

WHEREAS, in order to finance the cost of the Project, the Borrower has entered into the Common Agreement of even date herewith, by and among DOE (on its own behalf and as Guarantor and initial Loan Servicer), the Borrower and the Collateral Agent, acting as the Administrative Agent thereunder (the “Common Agreement”), pursuant to which the Credit Parties have agreed to make available certain credit facilities to the Borrower on the terms and conditions set forth therein.

WHEREAS, it is a condition precedent to the making of the initial Advance under the Common Agreement and the other Loan Documents that the parties shall have entered into this Agreement.

NOW, THEREFORE, to induce DOE and the Collateral Agent to enter into the Common Agreement and the other Loan Documents and to induce the Credit Parties to make available the FFB Credit Facility, and for other good and valuable consideration, the receipt and adequacy of which are acknowledged, the parties agree as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

As used in this Agreement, the following terms have the following meanings:

“Accelerated Equity Contribution” means, at any time in the case of an Equity Acceleration Date specified in a notice issued by the Loan Servicer to the Equity Contributors (i) pursuant to Section 2.3.4, an amount equal to the lesser of (A) the balance of the undrawn Base Equity Commitment and (B) the outstanding amount of the Secured Obligations at such time, or (ii) pursuant to Section 7.3.3, an amount as specified therein.

“Aggregate Base Equity Amount” means (i) all Base Project Costs, less (ii) the sum of (A) the Guaranteed Loan Amount, and (B) the Supplemental Base Equity Amount, less (iii) the amount of the Approved Pre-Closing Equity Credit.

“Aggregate Base Equity Commitment Balance” means, at any point in time, an amount equal to the Aggregate Base Equity Amount less the aggregate amount of Base Equity Contributions made by the Equity Contributors as of such time.

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

“Available Owner’s Contingency” has the meaning set forth in Section 2.2.3(c).

“Base Equity” means the Base Equity Contributions made by or on behalf of the Equity Contributors to the Borrower from time to time in satisfaction of their aggregate Base Equity Commitments.

“Base Equity Commitment” means the obligation of each Equity Contributor to make Base Equity Contributions in accordance with this Agreement.

“Base Equity Commitment Balance Security” means any combination of (i) Cash Collateral, (ii) Reserve Letters of Credit, or (iii) an Equity Contribution Guaranty from a Creditworthy Party, in each case provided to support the Base Equity Commitment of an Equity Contributor.

“Base Equity Contributions” means capital contributions made by one or more Equity Contributors to the Borrower to fund Base Project Costs, which contributions shall be made in accordance with Section 2.3.1.

“Base Equity Contribution Date” has the meaning set forth in Section 2.3.1.

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“Base Equity Percentage” means, (i) with respect to BrightSource Ivanpah, zero percent (0%); (ii) with respect to NRG Solar, 64.10%; and (iii) with respect to Google Ivanpah, 35.90%, as may be adjusted from time to time in accordance with Section 2.8.

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

“BrightSource Ivanpah” has the meaning set forth in the preamble.

“BSE Common Equity 409A Valuation” shall be the value of the Sponsor’s common stock as determined by the Board of Directors of the Sponsor for purposes of Section 409A of the Internal Revenue Code.

“BSE Common Equity Contribution Value” has the meaning set forth in Section 7.3.2.

“Cash Collateral” means cash in a deposit account in which the Collateral Agent has a security interest.

“Collateral” has the meaning set forth in Section 2.5.

“Collateral Agent” has the meaning set forth in the preamble.

“Common Agreement” has the meaning set forth in the recitals.

“Creditworthy Party” means a person with a long term unsecured debt rating or long-term issuer rating from any of Moody’s, S&P or Fitch of not less than investment grade.

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

“Equity Acceleration Date” means the date specified as such in any notice issued by the Loan Servicer to the Equity Contributors pursuant to Section 2.3.4 or Section 7.3.3.

“Equity Commitment Security Release Date” has the meaning set forth in Section 2.2.4.

“Equity Contribution” means, individually, each Base Equity Contribution, Supplemental Base Equity Contribution, and Overrun Equity Contribution (including an Accelerated Equity Contribution).

“Equity Contribution Date” means each Base Equity Contribution Date, Supplemental Base Equity Contribution Date, Overrun Equity Contribution Date, or Equity Acceleration Date.

“Equity Contributor Guarantor” means a Person that either (i) has a long-term unsecured debt rating from any of Moody’s, S&P or Fitch of not less than investment grade, (ii) is the Equity Contributor Ultimate Parent of an Equity Contributor, or (iii) is any other Person approved by DOE as being sufficiently creditworthy for purposes of an Equity Contributor Guaranty.

“Equity Contribution Guaranty” means each payment guaranty, substantially in the form attached hereto as Exhibit B, provided by each Equity Contributor Guarantor in support of such Equity Contributor’s obligations (i) to provide Base Equity, if such Equity Contributor elects to provide Base Equity Commitment Balance Security in the form of a guaranty from a

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Creditworthy Party, (ii) to provide Funded Overrun Equity, if such Equity Contributor elects to provide Funded Overrun Equity Commitment Balance Security in the form of a guaranty from a Creditworthy Party, (iii) to make any Recapture Indemnification Contribution, (iv) to make any ITC Compensation Payment, and (v) with respect to BrightSource Ivanpah, to provide Supplemental Base Equity.

“Equity Contributors” has the meaning set forth in the recitals.

“Funded Overrun Equity” has the meaning set forth in Section 2.2.2.

“Funded Overrun Equity Amount” means Overrun Project Costs equal to 3.00% of Base Project Costs, or $22,563,972.

“Funded Overrun Equity Balance” means, at any time, an amount equal to the excess, if any, of (i) Funded Overrun Equity Amount, over (ii) the aggregate amount of Overrun Equity Contributions by the Equity Contributors in consideration of Funded Overrun Equity as of such time.

“Funded Overrun Equity Commitment” means the obligation of the Equity Contributors to make Overrun Equity Contributions in consideration of Funded Overrun Equity in the amounts and at the times specified in this Agreement.

“Funded Overrun Equity Commitment Balance Security” means any combination of (i) Cash Collateral, (ii) Reserve Letters of Credit, and (iii) an Equity Contribution Guaranty from a Creditworthy Party, in each case provided to support the Funded Overrun Equity Commitment of an Equity Contributor.

“Funded Overrun Equity Percentage” means, (i) with respect to BrightSource Ivanpah, 21.7744%; (ii) with respect to NRG Solar, 50.1446%; and (iii) with respect to Google Ivanpah, 28.0810%, as may be adjusted from time to time in accordance with Section 2.8.

“Google Ivanpah” has the meaning set forth in the preamble.

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

“Individual Base Equity Commitment Balance” has the meaning set forth in Section 2.1.1.

“Individual Funded Overrun Equity Commitment Balance” has the meaning set forth in Section 2.2.2.

“Loan Servicer” has the meaning set forth in the preamble.

“NRG Solar” has the meaning set forth in the preamble.

“Overrun Equity” means the Overrun Equity Contributions made by or on behalf of the Equity Contributors to the Borrower from time to time in satisfaction of their aggregate Overrun Equity Commitment.

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“Overrun Equity Commitment” The obligation of the Equity Contributors to fund all Overrun Project Costs and costs of design, engineering, startup, commissioning and shakedown, until the Operational Completion Date, in accordance with this Agreement.

“Overrun Equity Contributions” means capital contributions made by one or more Equity Contributors to the Borrower to fund Overrun Project Costs as set forth in Section 2.3.2.

“Overrun Equity Contribution Date” has the meaning set forth in Section 2.2.3(d).

“Project” has the meaning set forth in the recitals.

“Recapture Damages” Any loss or liability of the Borrower resulting from all or any portion of a Cash Grant being required to be repaid to the U.S. Department of the Treasury as a result of a breach of the obligations set forth in Section 6.1, including any interest and penalties related thereto as described in the Cash Grant Guidance.

“Recapture Indemnification Contribution” has the meaning set forth in Section 6.1(b).

“Reserved BSE Common Equity” has the meaning set forth in Section 7.1.3.

“Sponsor” has the meaning set forth in the recitals.

“Supplemental Base Equity” means the Supplemental Base Equity Contributions made by or on behalf of BrightSource Ivanpah to the Borrower from time to time in satisfaction of the Supplemental Base Equity Commitment.

“Supplemental Base Equity Amount” has the meaning set forth in Section 7.1.2.

“Supplemental Base Equity Collateral” has the meaning set forth in Section 7.4.

“Supplemental Base Equity Commitment” means the obligation of BrightSource Ivanpah to make Supplemental Base Equity Contributions in accordance with this Agreement.

“Supplemental Base Equity Commitment Balance” means, at any point in time, an amount equal to the Supplemental Base Equity Amount, less the aggregate, without duplication of amounts, of (i) Supplemental Base Equity Contributions made by BrightSource Ivanpah, including all amounts paid pursuant to Section 7.3.1, subject to the next sentence, and (ii) amounts deposited into the Debt Service Reserve Account in accordance with Section 3.4.4 of the Common Agreement from the proceeds of any Cash Grant received. For purposes of this definition, Supplemental Base Equity Contributions made pursuant to Section 7.3.1(d) shall be valued at the BSE Common Equity 409A Valuation of the shares of Reserved BSE Common Equity delivered to the Collateral Agent on the date of such delivery.

“Supplemental Base Equity Commitment Balance Security” means the following in the amounts specified in Section 7.1.2, in each case provided to support the Supplemental Base Equity Commitment of BrightSource Ivanpah: (i) Cash Collateral, (ii) Reserve Letters of Credit, or (iii) an Equity Contribution Guaranty from the Sponsor supported by Reserved BSE Common Equity.

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“Supplemental Base Equity Commitment Security Release Date” has the meaning set forth in Section 7.2.

“Supplemental Base Equity Contribution Date” means the date that is 180 days after the later of (i) one year after the Initial Energy Delivery Date (as defined in the Power Purchase Agreement), and (ii) the achievement of “Substantial Completion” under the Equipment and Construction Contract, but in no event later than the date that is 90 days before the First Principal Payment Date for the Long-Maturity Promissory Note.

“Supplemental Base Equity Contributions” means capital contributions made by BrightSource Ivanpah to the Borrower to fund the Debt Service Reserve Account, which contributions shall be made in accordance with Section 7.3.1.

When used in this Agreement including the recitals hereto, capitalized terms not otherwise defined herein which are defined in Exhibit A to the Common Agreement have the meanings given to them in the Common Agreement.

For all purposes of this Agreement and the Exhibits hereto, the principles of construction set forth in Exhibit B to the Common Agreement shall apply mutatis mutandis to this Agreement as if set forth in full in this Section 1.3.

ARTICLE II

CAPITAL CONTRIBUTIONS

Each Equity Contributor, severally in accordance with Section 2.7, undertakes to provide directly or indirectly to the Borrower the required amounts of Base Equity and Overrun Equity, on and subject to the terms and conditions of this Agreement.

Each Equity Contributor irrevocably commits to provide to the Borrower, directly or indirectly, in accordance with Section 2.3.1, its share of the Aggregate Base Equity Commitment Balance in an amount determined by the following formula:

(A * B) – C

where

A = such Equity Contributor’s Base Equity Percentage,

B = the Aggregate Base Equity Amount, and

C = the aggregate amount of such Equity Contributor’s prior Base Equity Contributions (excluding the amount of any Approved Pre-Closing Equity Credit).

No Equity Contributor’s commitment under this Section 2.1.1 (its “Individual Base Equity Commitment Balance”) can be less than zero.

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The Sponsor irrevocably commits to provide to the Borrower, in accordance with Section 2.3.2, Overrun Equity in the aggregate amount equal to 100% of all Overrun Project Costs incurred at any time prior to the Operational Completion Date; provided, however, that all Overrun Project Costs shall be funded to the extent available (i) first, from Available Owner’s Contingency (as defined in Section 2.2.3(c) below), (ii) second, from Funded Overrun Equity, and (iii) thereafter, by additional funds provided by the Sponsor.

Without limiting the Sponsor’s obligations under Section 2.2.1, each Equity Contributor irrevocably commits to provide to the Borrower, directly or indirectly, in accordance with Section 2.3.2, its share of the Funded Overrun Equity Balance in an amount determined by the following formula (“Funded Overrun Equity”):

(A * B) – C

where

A = such Equity Contributor’s Funded Overrun Equity Percentage,

B = the Funded Overrun Equity Amount,

C = the aggregate amount of such Equity Contributor’s prior Funded Overrun Equity Contributions.

No Equity Contributor’s commitment under this Section 2.2.2 (its “Individual Funded Overrun Equity Commitment Balance”) can be less than zero.

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On the date that (x) Operational Completion has occurred and (y) the Borrower has established and funded a reserve in an amount determined by the Borrower and approved by the Lender’s Engineer to be sufficient to pay all out-of-pocket costs (net of any warranty payments) that the

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Not later than the date on which the applicable Base Equity Contribution is required to be made pursuant to Section 2.4.2 of the Common Agreement (the “Base Equity Contribution Date”), each Equity Contributor shall cause its share of each Base Equity Contribution, in an amount equal to the product of (x) the Base Equity Percentage for such Equity Contributor, and (y) the aggregate Base Equity Contributions required on the applicable Base Equity Contribution Date, to be made to the Borrower, provided that no Equity Contributor shall be obligated to make Base Equity Contributions in excess of its Individual Base Equity Commitment Balance. Base Equity Contributions may be made by:

To the extent an Equity Contributor makes a Base Equity Contribution, such Equity Contributor’s Individual Base Equity Commitment Balance shall be reduced accordingly.

Each Equity Contributor’s obligations under this Section 2.3.1 shall expire, and no Equity Investor will have any further obligation to make any Base Equity Contributions, from and after the PPA Required Performance Date.

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As security for the payment and performance of its obligations under this Agreement and the other Secured Obligations, each Equity Contributor hereby grants to the Collateral Agent, for itself and on behalf of and for the ratable benefit of the other Secured Parties, a first priority perfected security interest in the Equity Funding Account and all proceeds thereof (the “Collateral”). Each Equity Contributor agrees that this Agreement shall create a continuing security interest in the Collateral which shall remain in effect until the termination of the FFB Credit Facility Commitment and payment and performance in full of all Secured Obligations (other than inchoate indemnity obligations).

Any Reserve Letter of Credit shall provide for drawing upon presentation of a certificate of the Collateral Agent to the effect that (i) an amount owing under Article II by the Equity Contributor providing such Reserve Letter of Credit (or owing under Article VII with respect to any Reserve Letter of Credit provided by BrightSource Ivanpah thereunder) has not been paid by such Equity Contributor on the date when due, (ii) the issuer thereof has ceased to have the credit quality described in the definition of Reserve Letter of Credit, or (iii) 45 days prior to the date of expiration thereof such Reserve Letter of Credit has not been renewed or replaced by (A) another Reserve Letter of Credit, (B) Cash Collateral, (C) an Equity Contribution Guaranty from a Creditworthy Party, or (D) a cash contribution to the Equity Funding Account.

The liability of each Equity Contributor under this Agreement is limited as set out in this Agreement and is several (and not joint). Without limiting the Sponsor’s obligations under Section 2.2.1, the obligations of each Equity Contributor under this Agreement shall be in proportion to such Equity Contributor’s Base Equity Percentage (for matters concerning Base Equity) or Funded Overrun Equity Percentage (for matters concerning Funded Overrun Equity). No Equity Contributor is liable for the obligations of any other Equity Contributor under this Agreement. Failure of an Equity Contributor to carry out its obligations under this Agreement shall not relieve any other Equity Contributor of its obligations under this Agreement. The Parties acknowledge that Equity Contributions may be funded through equity funding to intermediate holding companies between the Borrower and the Equity Contributors and any funding through such an intermediary shall constitute Equity Contributions of the applicable Equity Contributor, so long as the funds representing such Equity Contributions are deposited into the applicable Project Account. Payments made by any other Person of an Equity Contribution an Equity Contributor has failed to make shall be deemed for all purposes of this Agreement to have been made by such Equity Contributor and to have cured any failure by such Equity Contributor to make such Equity Contribution.

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The Base Equity Percentage or Funded Overrun Equity Percentage of any Equity Contributor may, by giving written notice to the Collateral Agent and Loan Servicer, be revised from time to time, to the extent permitted by the Operating Agreement for the Master Holding Company.

The parties acknowledge that the initial Advance is expected to occur three Business Days after the Financial Closing Date, and that the obligations of the parties under this Agreement are contingent on the making of that initial Advance. Accordingly, if for any reason the initial Advance does not occur on or before May 1, 2011, upon receipt by DOE of written notice from any other party hereto of the termination of this Agreement:

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The parties shall cooperate with one another in connection with the implementation of this Section 2.9, and promptly upon request each party shall execute, acknowledge and deliver all further instruments and documents, and take all such further acts as any other party may reasonably request from time to time, in order to carry out the purposes of this Section 2.9.

ARTICLE III

ADDITIONAL AGREEMENTS; INDEMNITIES

Each Equity Contributor agrees that it shall defend, indemnify and hold harmless on demand each Agent and each other Credit Party and their respective directors, officers, employees, agents and representatives from and against and reimburse such indemnitees on demand for any and all costs, expenses, liabilities, losses, damages, injunctions, suits, actions, fines, penalties, claims and demands of every kind or nature, including reasonable attorney’s fees and court costs, which are occasioned by or result from any failure by such Equity Contributor to perform any of the terms of this Agreement or any other Equity Document.

The obligations of each Equity Contributor under this Article III shall survive termination of this Agreement.

No Equity Contributor shall (a) as applicable, agree to any amendment, modification or variation to, or waive or grant any indulgence with respect to, any right under this Agreement or any Equity Document of the Borrower, the Project Holding Company or the Master Holding Company, or (b) make or agree to any suspension, termination or cancellation of, this Agreement or any other Equity Document of the Borrower, the Project Holding Company or the Master Holding Company, or (c) assert or agree to any claim that this Agreement or any other Equity Document of the Borrower, the Project Holding Company or the Master Holding Company has been frustrated, except, in each case, to the extent the Borrower and the Equity Contributors are not prohibited from doing so under the Loan Documents, including in accordance with the procedures set forth in Section 7.16(a)(iv) of the Common Agreement.

Without waiving any notice rights expressly provided for under this Agreement or the Common Agreement, each Equity Contributor hereby irrevocably waives diligence, presentment, protest, demand for payment and Event of Default Notice or notice of non-payment to or upon the Borrower or any other Person with respect to any amounts due under the Common Agreement, any Equity Document or any other Loan Document. Each Equity Contributor acknowledges the substantial direct and indirect benefits from the financing arrangements are contemplated by the Loan Documents and the waivers set forth herein are knowingly made in contemplation of such benefits.

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ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Each Equity Contributor 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 Periodic Approval Date, and (iii) each Advance Date, except as such representations and warranties relate to an earlier date, and all of these representations and warranties shall survive the Financial Closing Date.

This Agreement and each other Equity Document to which it is a party, constitutes the legal, valid and binding obligation of it, enforceable against it in accordance with its respective terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

It is not in default under (i) any term of this Agreement or (ii) any other agreement to which it is a party which could reasonably be expected to have a material adverse effect on its ability to perform its obligations hereunder or under any other Equity Document to which it is a party.

There is no pending or, to its knowledge, threatened (in writing) action or proceeding at law or in equity affecting it before any Governmental Authority or arbitrator, (i) that relates to this Agreement or, any other Transaction Document to which it is a party that could reasonably be expected to have a Material Adverse Effect or (ii) which could reasonably be expected to have a material adverse effect on its ability to perform its obligations under this Agreement or under any other Equity Document to which it is a party.

Other than amounts that have been paid in full or will have been paid in full by the initial Requested Advance Date, no fees or taxes, including stamp, transaction, registration or similar taxes, are required to be paid by it or by any of the Credit Parties for the legality, validity, or enforceability of this Agreement.

ARTICLE V

COVENANTS OF EQUITY CONTRIBUTORS

Each Equity Contributor covenants and agrees that, until the date described in Section 2.2.4:

It shall maintain in full force and effect all Government Approvals that are required to be obtained by it with respect to this Agreement and shall obtain any such Government Approvals that may become necessary in the future.

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It shall comply with all requirements under any law, rule, regulation, order, judgment or decree to which it may be subject if failure so to comply could reasonably be expected to have a material adverse effect on its ability to perform its obligations under this Agreement.

Promptly, and in any event within five Business Days after an Authorized Official obtains knowledge thereof, it shall give to the Loan Servicer notice of the occurrence of any event or of any litigation or governmental proceeding pending against it which could reasonably be expected to have a material adverse effect on its ability to perform its obligations hereunder.

ARTICLE VI

INDEMNITY FOR CASH GRANT RECAPTURE, ITC

provided, however, that this Section 6.1(a) shall not (A) apply to any sale, assignment or transfer of any direct or indirect ownership interest or other interest in the Borrower or in any Project assets that would cause the Borrower to be a Disqualified Person if such sale, assignment or transfer results from the acts or omission of, at the direction of, or with the permission of, any Credit Party or (B) cause, in any way, any Equity Contributor to be responsible for the actions or inactions of any Equity Contributor Affiliated Party of any other Equity Contributor.

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Notwithstanding anything to the contrary in the Loan Documents, the Credit Parties will, in exercising remedies under the Loan Documents, use commercially reasonable efforts to avoid taking, directing or acquiescing to any action that is reasonably likely to result in the imposition of Cash Grant Recapture Liabilities.

ARTICLE VII

SUPPLEMENTAL BASE EQUITY

BrightSource Ivanpah undertakes to provide directly or indirectly to the Borrower the required amounts of Supplemental Base Equity, on and subject to the terms and conditions of this Agreement.

BrightSource Ivanpah irrevocably commits (i) to provide to the Borrower, directly or indirectly, 100% of the Supplemental Base Equity Amount, and (ii) to pay amounts up to the Supplemental Base Equity Commitment Balance from time to time on any Supplemental Base Equity Contribution Date.

BrightSource Ivanpah shall secure the Supplemental Base Equity Commitment from the Initial Advance Date through the Supplemental Base Equity Commitment Security Release Date by providing Supplemental Base Equity Commitment Balance Security in an aggregate amount not less than $21,305,358 (the “Supplemental Base Equity Amount”). On the Initial Advance Date, the required Supplemental Base Equity Commitment Balance Security shall be provided as

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follows: (i) BrightSource Ivanpah shall provide Supplemental Base Equity Commitment Balance Security to the Collateral Agent in the form of any combination of Cash Collateral and Reserve Letters of Credit in an aggregate amount of not less than $9,229,732, and (ii) the Sponsor shall reserve (but shall not issue) as set forth in Section 7.1.3 shares of Reserved BSE Common Equity having an initial value of $12,075,626, calculated as set forth in Section 7.1.3.

The Sponsor has authorized and reserved 1,778,443 shares of its common stock for the satisfaction of its obligations with respect to Supplemental Base Equity (the “Reserved BSE Common Equity”), which number of shares shall be the maximum number of shares the Sponsor will be required or entitled to issue pursuant to this Agreement. This number of shares of common stock constituting the Reserved BSE Common Equity was determined based on common stock valued at $6.79 per share based on the Sponsor’s most recent most recent BSE Common Equity 409A Valuation prior to the date of this Agreement.

On the date that the Borrower has funded the Debt Service Reserve Account in an amount equal to or exceeding the amount shown in the Base Case Projections as of the Financial Closing Date as being the highest projected semi-annual payment of Debt Service during the term of the Guaranteed Loan (the “Supplemental Base Equity Commitment Security Release Date”), the Supplemental Base Equity Commitment shall terminate and (i) DOE shall promptly take all action required to release all Supplemental Base Equity Commitment Balance Security, and (ii) DOE shall instruct the Collateral Agent in accordance with the Common Agreement to pay to BrightSource Ivanpah any remaining balance in the Supplemental Base Equity Funding Account.

If on the Supplemental Base Equity Contribution Date the Borrower has not received a Cash Grant in an amount sufficient to fund the Debt Service Reserve Account up to an amount equal to or exceeding the amount shown in the Base Case Projections as of the Financial Closing Date as being the highest projected semi-annual payment of Debt Service during the term of the Guaranteed Loan, upon demand by the Loan Servicer BrightSource Ivanpah shall cause a Supplemental Base Equity Contribution to be made to the Borrower. If BrightSource Ivanpah shall not have made such Supplemental Base Equity Contribution in full within five (5) Business Days of such demand, the Loan Servicer may take the following actions:

20

The number of shares of Reserved BSE Common Equity that the Sponsor is required to issue and deliver to the Collateral Agent pursuant to Section 7.3.1(d) shall be determined using (x) a value of $6.79 per share, (y) or, if the Sponsor has undergone an initial public offering, the average closing price of the Sponsor’s common stock over the immediately preceding seven (7) trading days (such value, the “BSE Common Equity Contribution Value”).

Promptly upon delivery by the Loan Servicer to BrightSource Ivanpah at any time prior to the Supplemental Base Equity Commitment Security Release Date of a notice in the form of Exhibit A hereto demanding an Accelerated Equity Contribution pursuant to Section 8.2(f) of the Common Agreement, without further notice of default, presentment or demand for payment, protest or notice of non-payment or dishonor, or other notices or demands of any kind, all such notices and demands being waived, and without limiting the Sponsor’s obligations under Section 2.2.1, the Loan Servicer may immediately demand payment of the full amount of the Supplemental Base Equity Commitment Balance to the Collateral Agent, and may instruct the Collateral Agent to take any one or more of the actions specified in Section 7.3.1, in any specified order, and without regard to any time periods with respect to demands, in order to collect the full amount of the Supplemental Base Equity Commitment Balance, and the Loan Servicer shall instruct the Collateral Agent as to the Project Account into which any proceeds thereof shall be paid.

21

As security for the payment and performance of its obligations under this Agreement and the other Secured Obligations, BrightSource Ivanpah hereby grants to the Collateral Agent, for itself and on behalf of and for the ratable benefit of the other Secured Parties, a first priority perfected security interest in the Supplemental Base Equity Funding Account and all proceeds thereof (the “Supplemental Base Equity Collateral”). BrightSource Ivanpah agrees that this Agreement shall create a continuing security interest in the Supplemental Base Equity Collateral which shall remain in effect until the termination of the FFB Credit Facility Commitment and payment and performance in full of all Secured Obligations (other than inchoate indemnity obligations).

ARTICLE VIII

MISCELLANEOUS

Any communications to any party to this Agreement or notices provided pursuant to this Agreement may be given to the address set forth for such party as provided in Schedule 6.1 hereto. Each communication to be made under this Agreement shall be made in writing and, unless otherwise stated, shall be given and deemed effective as provided in Section 14.1 of the Common Agreement.

No delay or omission in exercising, and no course of dealing with respect to, any right, power, privilege or remedy under this Agreement or any other Loan Document, including any rights and remedies in connection with the occurrence of an Event of Default or Potential Default shall impair any such right, power, privilege or remedy of the Credit Parties, nor shall it be construed to be a waiver of any right, power, privilege or remedy or of any breach or default, or an acquiescence therein, or in any similar breach or default thereafter occurring, nor shall any waiver of any single right, power, privilege or remedy, or of any breach or default be deemed a waiver of any other right, power, privilege or remedy or of any other breach or default therefore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any of the Credit Parties of any right, power, privilege or remedy including any rights and remedies in connection with the occurrence of an Event of Default or Potential Default or of any other breach or default under this Agreement or any other Loan Document, or any waiver on the part of any of the Credit Parties of any provision or condition of this Agreement or any other Transaction Document, must be in writing and shall be effective only to the extent in such writing specifically set forth.

22

This Agreement, including any agreement, document or instrument attached hereto or referred to herein, integrates all the terms and conditions mentioned herein or incidental hereto and supersedes all oral negotiations and prior agreements and understandings of the parties hereto in respect to the subject matter hereof.

This Agreement and the rights and obligations of the parties hereunder shall be governed by, and construed and interpreted in accordance with, the federal law of the United States. To the extent that federal law does not specify a rule of decision for a particular matter at issue, it is the intention and agreement of the parties hereto that the substantive law of the State of New York shall be adopted as the governing federal rule of decision.

EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR DOE AND THE COLLATERAL AGENT TO ENTER INTO THIS AGREEMENT.

By execution and delivery of this Agreement, each Equity Contributor irrevocably and unconditionally:

23

In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect in any jurisdiction, the parties hereto agree to the fullest extent they may effectively do so that the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the parties hereto shall enter into good faith negotiations to replace the invalid, illegal or unenforceable provision.

No claim shall be made by any party to this Agreement against any other party to this Agreement or any of their respective Affiliates, directors, employees, attorneys or agents for any special, indirect, consequential or punitive damages (whether or not the claim for such damages is based on contract, tort or duty imposed by law), in connection with, arising out of or in any way related to the transactions contemplated by this Agreement or the other Transaction Documents or any act or omission or event occurring in connection with such documents; provided, however, that this Section 8.9 shall not limit any Equity Contributor’s obligation to make any Equity Contribution required by this Agreement. Each party to this Agreement waives, releases and agrees not to sue upon any such claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

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25

This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of any obligations of any Equity Contributor under this Agreement, or any part of this Agreement, is, pursuant to the Governmental Rules, rescinded or reduced in amount, or must otherwise be restored or returned by any Credit Party. In the event that the whole or any part of any payment is so rescinded, reduced, restored or returned, such obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

Each of the Equity Contributors shall not, and shall cause each of its Affiliates not to, issue any press release concerning the terms of the Loan Documents without DOE’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.

The obligations of each Equity Contributor under this Agreement and each other Equity Document shall not be affected by (i) any default by the Borrower or any other Major Project Participant in the performance or observance of any of its agreements or covenants in this Agreement or any other Transaction Document, or (ii) the insolvency of the Borrower or any other Major Project Participant. No obligations of any Equity Contributor under this Agreement or any other Equity Document shall be released, discharged or in any way affected by any reorganization, arrangement, compromise, composition or plan affecting the Borrower or any of its Affiliates or by any lack of validity or enforceability of this Agreement or any other Transaction Document, whether or not such Equity Contributor or the Borrower or such Affiliate shall have notice or knowledge of any of the foregoing.

Except as otherwise expressly provided herein, the obligations of each Equity Contributor under this Agreement shall remain in full force and effect until the date described in Section 2.2.4.

Subject to Section 6.4, until the Secured Obligations (other than inchoate indemnity obligations) shall have been indefeasibly paid in full and all commitments to extend credit under the FFB Credit Facility shall have expired or terminated, no Equity Contributor shall enforce or accept any payment by the Borrower under any right of subrogation which may have arisen or may hereafter arise in connection with this Agreement provided, however, that the provisions of this paragraph are subject to Section 6.4.

26

This Agreement may be executed in one or more duplicate counterparts and when signed by all of the parties shall constitute a single binding agreement.

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IN WITNESS WHEREOF, the parties to this Agreement, acting through their Authorized Officials, have caused this Agreement to be signed in their respective names as of the date first above written.

[Signature Page to Equity Funding Agreement]

[Signature Page to Equity Funding Agreement]

Schedule 6.1

to Equity Funding Agreement

Notice Addresses

If to the Sponsor:

BrightSource Energy, Inc.

1999 Harrison Street, Suite 2150

Oakland, CA 94612

with a copy (which copy shall not be required to effect notice) to:

If to BrightSource Ivanpah:

BrightSource Ivanpah Holdings, LLC

c/o BrightSource Energy, Inc.

1999 Harrison Street, Suite 2150

Oakland, CA 94612

with a copy (which copy shall not be required to effect notice) to:

BrightSource Energy, Inc.

1999 Harrison Street, Suite 2150

Oakland, CA 94612

If to NRG Solar:

NRG Solar Ivanpah LLC

5790 Fleet Street, Suite 200

Carlsbad, CA 92008

with a copy (which copy shall not be required to effect notice) to:

NRG Energy Services LLC

c/o NRG Energy, Inc.

211 Carnegie Center

Princeton, NJ 08540

If to Google Ivanpah:

Danke Schoen Project LLC

c/o Google Inc.

1600 Amphitheatre Parkway

Mountain View, CA 94043

with a copy (which copy shall not be required to effect notice) to:

Cleary Gottlieb Steen & Hamilton LLP

One Liberty Plaza

New York, New York 10006

* Confidential Treatment Requested

If to the Borrower:

Solar Partners VIII, LLC

c/o NRG Solar Asset Management LLC

5790 Fleet Street, Suite 200

Carlsbad, CA 92008

with a copy (which copy shall not be required to effect notice) to:

BrightSource Energy, Inc.

1999 Harrison Street, Suite 2150

Oakland, CA 94612

If to DOE:

U.S. Department of Energy

Loan Programs Office, Loan Guarantee Program

1000 Independence Avenue, S.W.

Washington, D.C. 20585

with a copy to the same address (which copy shall not constitute notice):

* Confidential Treatment Requested

and a copy (which copy shall not constitute notice) to:

Morrison & Foerster LLP

2000 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

If to the initial Loan Servicer:

U.S. Department of Energy

Loan Programs Office, Loan Guarantee Program

1000 Independence Avenue, S.W.

Washington, D.C. 20585

with a copy to the same address (which copy shall not constitute notice):

* Confidential Treatment Requested

and a copy (which copy shall not constitute notice) to:

Morrison & Foerster LLP

2000 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

If to the Collateral Agent:

Midland Loan Services, a division of PNC Bank, National Association

10851 Mastin, Suite 700

Overland Park, KS 66210

with a copy (which copy shall not be required to effect notice) to:

Midland Loan Services, a division of PNC Bank, National Association

10851 Mastin, Suite 700

Overland Park, KS 66210

* Confidential Treatment Requested

Exhibit A

to Equity Funding Agreement

[Form of Notice of Accelerated Equity Contribution Demand by Loan Servicer]

[Date]

[Name of Equity Contributor] (the “Equity Contributor”)

Ladies and Gentlemen:

All capitalized terms used herein and not otherwise defined shall have their respective meanings set forth in the Equity Funding Agreement.

Pursuant to Section 8.2(f) of the Common Agreement and Section [2.3.4][7.3.3] of the Equity Funding Agreement, we hereby demand the Equity Contributor make an Accelerated Equity Contribution (the “Demand”) in the amount of [            ] Dollars ($            ). The amount of such Accelerated Equity Contribution due from, or on behalf of, the Equity Contributor is $            .

All such amounts shall be paid to the Equity Funding Account, Account No. [*] at the Collateral Agent, Midland Loan Services, a division of PNC Bank, National Association, 10851 Mastin, Suite 700, Overland Park, KS 66210 on the date of this Demand in Dollars and immediately available funds.

We hereby expressly reserve all rights and remedies to which any Credit Party may be entitled under any Loan Document or the Governmental Rules.

* Confidential Treatment Requested

Exhibit B

to Equity Funding Agreement

EQUITY CONTRIBUTION GUARANTY

THIS EQUITY CONTRIBUTION GUARANTY AGREEMENT (this “Guaranty”) is dated as of April 5, 2011, by and among:

WHEREAS, the Borrower intends to develop, construct, own and operate a nominal 133 MW solar thermal electric generating plant and certain common facilities serving such plant (the “Project”).

WHEREAS, in order to finance the cost of the Project, the Borrower has entered into the Common Agreement of even date herewith, by and among the U.S. Department of Energy, acting by and through the Secretary of Energy, for itself as a Credit Party (in such capacity, “DOE”), as guarantor of the DOE-Guaranteed Loan (in such capacity, the “Guarantor”) and as the initial loan servicer under the Common Agreement (in such capacity, the “Loan Servicer”), the Borrower and the Collateral Agent, acting as the Administrative Agent thereunder (the “Common Agreement”), pursuant to which the Credit Parties have agreed to make available certain credit facilities to the Borrower on the terms and conditions set forth therein.

WHEREAS, in order to finance a portion of the cost of the Project, the Borrower has entered into the Equity Funding Agreement of even date herewith, by and among the Borrower, the Sponsor (as defined in the Equity Funding Agreement), the Equity Contributors (as defined in the Equity Funding Agreement), DOE (on its own behalf, as the Guarantor and as the Loan Servicer) and the Collateral Agent, pursuant to which, among other things, the Equity Contributors have agreed to together provide 100% of the Equity Contributions required for the construction of the Project on the terms and conditions set forth therein.

WHEREAS, it is a condition precedent to the making of the initial Advance under the Common Agreement and the other Loan Documents that the parties shall have entered into this Guaranty.

NOW THEREFORE, in consideration of the above premises and for other good and valuable consideration, the adequacy, receipt and sufficiency thereof are hereby acknowledged, the parties hereto covenant and agree as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

As used in this Guaranty, the following terms have the following meanings:

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

“Collateral Agent” has the meaning set forth in the preamble.

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

“Equity Contributors” has the meaning set forth in the Equity Funding Agreement.

“Guaranteed Equity Contributor” [BrightSource Ivanpah Holdings, LLC] [NRG Solar Ivanpah LLC] [Danke Schoen Project LLC]

“Guaranteed Obligations” has the meaning set forth in Section 2.1.

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

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

“Loan Servicer” has the meaning set forth in the preamble.

“Project” has the meaning set forth in the recitals.

“Sponsor” has the meaning set forth in the Equity Funding Agreement.

When used in this Guaranty, including the recitals hereto, capitalized terms not otherwise defined herein which are defined in Exhibit A to the Common Agreement have the meanings given to them in the Common Agreement, or if not defined therein, in the Equity Funding Agreement.

For all purposes of this Guaranty, the principles of construction set forth in Exhibit B to the Common Agreement shall apply mutatis mutandis to this Guaranty as if set forth in full in this Section 1.3.

2

ARTICLE II

GUARANTY

The Equity Contributor Guarantor hereby absolutely, irrevocably and unconditionally guarantees (as primary obligor and not merely as surety) to the Borrower and the Collateral Agent for the benefit of the Credit Parties the full and punctual payment by the Guaranteed Equity Contributor of its obligations [to provide Base Equity in an amount up to its Individual Base Equity Commitment Balance, and Funded Overrun Equity in an amount up to its Individual Funded Overrun Equity Commitment Balance, [and to provide Supplemental Base Equity in an amount up to the Supplemental Base Equity Commitment Balance]¹ in each case]² [to make any Recapture Indemnification Contribution]³ [to make any ITC Compensation Payment]⁴ whether such obligation is direct or indirect, absolute or contingent, due or to become due or now existing or hereafter incurred or arising (collectively, the “Guaranteed Obligations”), in all respects strictly in accordance with the terms of the Equity Funding Agreement and the other terms and provisions of this Guaranty.

If at any time the Guaranteed Equity Contributor fails to timely pay any Guaranteed Obligation, any time after proper demand by the Collateral Agent in accordance with the terms of the Equity Funding Agreement and expiration of any applicable cure period under the Equity Funding Agreement the Borrower or the Collateral Agent may give written notice of such default to the Equity Contributor Guarantor and demand payment of such Guaranteed Obligation under this Guaranty. Not later than five (5) Business Days following the Equity Contributor Guarantor’s receipt of such written notice, the Equity Contributor Guarantor shall promptly pay or cause to be paid such Guaranteed Obligation in full. Other than as set forth in this paragraph, this Guaranty is not conditioned upon any requirement that the Borrower, the Collateral Agent or any Credit Party first attempt to enforce any of the Guaranteed Obligations against any Equity Contributor or any other guarantor of the Guaranteed Obligations or any other Person, seek to apply any Collateral, or resort to any other means of obtaining payment of any of the Guaranteed Obligations.

3

The Equity Contributor Guarantor further agrees to pay all reasonable out of pocket expenses (including all reasonable fees and out-of-pocket expenses for legal services) actually paid or incurred by the Borrower, the Collateral Agent or any other Credit Party in enforcing this Guaranty, such payment to be made within five (5) Business Days following the Equity Contributor Guarantor’s receipt of written demand for payment (which demand shall itemize in reasonable detail the expenses for which demand is made) from the entity that has paid or incurred such expenses.

The Equity Contributor Guarantor agrees that, as among the Equity Contributor Guarantor, the Borrower and the Credit Parties, the Guaranteed Equity Contributor’s obligations under Sections 2.1.1, 2.2.2 and 2.3.4 of the Equity Funding Agreement and Section 8.2(f) of the Common Agreement may be declared to be (or may automatically become) forthwith due and payable as provided in the Equity Funding Agreement for purposes of this Article 2, notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Guaranteed Equity Contributor or any other Person.⁵]

ARTICLE III

OBLIGATIONS UNCONDITIONAL

4

5

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

The Equity Contributor Guarantor hereby represents and warrants to the Borrower and the Collateral Agent for the benefit of the Credit Parties:

6

All representations and warranties made in this Guaranty and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive execution and delivery of this Guaranty.

ARTICLE V

COVENANTS

The Equity Contributor Guarantor covenants and agrees with the Borrower and the Collateral Agent for the benefit of the Credit Parties that, until payment in full of the Guaranteed Obligations, except as otherwise provided in Section 6.6 hereof:

7

ARTICLE VI

MISCELLANEOUS

Notwithstanding any payment or payments made by the Equity Contributor Guarantor hereunder, or receipt of any amounts by the Collateral Agent or any Credit Party with respect to any of the Guaranteed Obligations, until the termination of the FFB Credit Facility Commitment and indefeasible payment and performance in full of all Secured Obligations (other than inchoate indemnity obligations), the Equity Contributor Guarantor shall not exercise any right or remedy arising by reason of any payment by it of, or amounts received by any Credit Party in connection with, the Guaranteed Obligations in accordance with Section 2 hereof, including the enforcement or acceptance of any payment by the Borrower, whether by subrogation or otherwise, against the Borrower, the Guaranteed Equity Contributor or any Credit Party.

No claim shall be made by any party to this Guaranty against any other party to this Guaranty or any of their respective Affiliates, directors, employees, attorneys or agents for any special, indirect, consequential or punitive damages (whether or not the claim for such damages is based on contract, tort or duty imposed by law), in connection with, arising out of or in any way related to the transactions contemplated by this Guaranty or the other Transaction Documents or any act or omission or event occurring in connection with such documents. Each party to this Guaranty waives, releases and agrees not to sue upon any such claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

8

The obligations of the Equity Contributor Guarantor hereunder shall be automatically reinstated if and to the extent that for any reason any payment or performance by or on behalf of the Guaranteed Equity Contributor in respect of the Guaranteed Obligations is rescinded or must be otherwise repaid, returned or restored to the Guaranteed Equity Contributor by any holder of any of the Guaranteed Obligations, whether as a result of insolvency, dissolution, liquidation, any proceedings in bankruptcy or reorganization or otherwise, all as though such payment had not been made. In the event that the whole or any part of any payment is so rescinded, reduced, restored or returned, amounts received that must be repaid shall be deemed not paid and such obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

Except as otherwise expressly provided herein, the obligations of the Equity Contributor Guarantor under this Guaranty shall remain in full force and effect until [the Equity Commitment Security Release Date]⁶ [the Supplemental Base Equity Commitment Security Release Date]⁷[the third (3rd) anniversary of the date that the Borrower’s tax returns for the year in which the Project is “placed in service” (for the purposes of Section 48 of the U.S. Internal

9

Revenue Code) are (absent extension) due to be filed⁸][the second (2nd) anniversary of the expiration of the Recapture Period⁹] regardless of (i) any intermediate payment or settlement of account, (ii) any issue as to the legality, validity or enforceability of the Guaranteed Obligations, (iii) any liquidation, dissolution, administration or other incapacity of any party to any Equity Document, or (iv) any change in the composition, structure, status, control or ownership of any such party.

In case any one or more of the provisions contained in this Guaranty should be invalid, illegal or unenforceable in any respect in any jurisdiction, the parties hereto agree to the fullest extent they may effectively do so that the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the parties hereto shall enter into good faith negotiations to replace the invalid, illegal or unenforceable provision.

10

No delay or omission in exercising, and no course of dealing with respect to, any right, power, privilege or remedy under this Guaranty or any other Loan Document, including any rights and remedies in connection with the occurrence of an Event of Default or Potential Default shall impair any such right, power, privilege or remedy of the Credit Parties, nor shall it be construed to be a waiver of any right, power, privilege or remedy or of any breach or default, or an acquiescence therein, or in any similar breach or default thereafter occurring, nor shall any waiver of any single right, power, privilege or remedy, or of any breach or default be deemed a waiver of any other right, power, privilege or remedy or of any other breach or default therefore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any of the Credit Parties of any right, power, privilege or remedy including any rights and remedies in connection with the occurrence of an Event of Default or Potential Default or of any other breach or default under this Guaranty or any other Loan Document, or any waiver on the part of any of the Credit Parties of any provision or condition of this Guaranty, must be in writing and shall be effective only to the extent in such writing specifically set forth.

Any communications to any party to this Guaranty or notices provided pursuant to this Guaranty may be given to the address set forth for such party as provided in Schedule 6.1 to the Equity Funding Agreement. Each communication to be made under this Guaranty shall be made in writing and, unless otherwise stated, shall be given and deemed effective as provided in Section 14.1 of the Common Agreement.

This Guaranty and the rights and obligations of the parties hereunder shall be governed by, enforced under and construed and interpreted in accordance with, the laws of the State of New York without regard to the conflicts of laws rules thereof (other than Section 5-1401 of the New York General Obligations Law (or any successor provisions thereto)).

11

EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE COLLATERAL AGENT TO ENTER INTO THE LOAN DOCUMENTS.

By execution and delivery of this Guaranty, the Equity Contributor Guarantor irrevocably and unconditionally:

12

The Equity Contributor Guarantor shall not, and shall cause each of its Affiliates not to, issue any press release concerning the terms of the Loan Documents without DOE’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.

The obligations of the Equity Contributor Guarantor under this Guaranty shall not be affected by (i) any default by the Borrower in the performance or observance of any of its agreements or covenants in this Guaranty or any other Transaction Document, or (ii) the insolvency of the Borrower. No obligations of the Equity Contributor Guarantor under this Guaranty shall be released, discharged or in any way affected by any reorganization, arrangement, compromise, composition or plan affecting the Borrower or any of its Affiliates or by any lack of validity or enforceability of this Guaranty or any other Transaction Document, whether or not the Equity Contributor Guarantor or the Borrower or such Affiliate shall have notice or knowledge of any of the foregoing.

This Guaranty, including any agreement, document or instrument attached hereto or referred to herein, integrates all the terms and conditions mentioned herein or incidental hereto and supersedes all oral negotiations and prior agreements and understandings of the parties hereto in respect to the subject matter hereof.

The headings in this Guaranty are for purposes of reference only, and shall not affect the meaning of this Guaranty.

This Guaranty may be executed in one or more duplicate counterparts and when signed by all of the parties shall constitute a single binding agreement.

[Signatures Appear on Next Page]

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IN WITNESS WHEREOF, the parties to this Guaranty, acting through their Authorized Officials, have caused this Guaranty to be signed in their respective names as of the date first above written.

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Dates Referenced Herein

This ‘S-1/A’ Filing		Date		Other Filings
Filed on:		3/9/12		None on these Dates
		5/1/11
		4/5/11
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