2019-01 - Purchase Agreement with Enerlogics Solar LLC

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PERFORMANCE GUARANTY. IF THE ISSUER OF THE PERFORMANCE GUARANTY (OR ANY SUBSEQUENT ASSIGNEE) AND THE SELLER ARE NOT THE SAME PERSON, NO RIGHTS PROVIDED TO PURCHASER BY THE PERFORMANCE GUARANTY MAY BE ASSERTED UNDER THIS AGREEMENT, AND NO CLAIM UNDER THE PERFORMANCE GUARANTY WILL AFFECT PURCHASER'S OBLIGATIONS UNDER THIS AGREEMENT. 13. Insurance. a. Insurance Coverage. At all times during the Term, the Parties shall maintain the following insurance, as applicable: i. Seller's Insurance. Seller shall maintain or ensure the following is maintained (a) property insurance on the System for the replacement cost thereof, (b) commercial general liability insurance with coverage of at least $1,000,000 per occurrence and $2,000,000 annual aggregate, (c) employer's liability insurance with coverage of at least $1,000,000 and (iv) workers' compensation insurance as required by law. Seller's coverage may be provided as part of an enterprise insurance program. ii. Purchaser's Insurance. Purchaser shall maintain commercial general liability insurance with coverage of at least $1,000,000 per occurrence and $2,000,000 annual aggregate. b. Policy Provisions. Each Party's insurance policies shall (i) contain a provision whereby the insured agrees to give the other Party at least thirty (3 0) days (ten (10) days for non-payment of premiums) written notice before the insurance is cancelled, or terminated, (ii) be written on a claims -made basis basis, and (iii) be maintained with companies either rated no less than A -VII as to Policy Holder's Rating in the current edition of A.M. Best's Insurance Guide or otherwise reasonably acceptable to the other Party. c. Certificates. Upon the other Party's request, each Party shall deliver to the other Party certificates of insurance evidencing the above required coverage. A Party's receipt, review or acceptance of such certificate shall in no way limit or relieve the other Party of the duties and responsibilities to maintain insurance as set forth in this Agreement. d. Deductibles. Each Party shall pay its own insurance deductibles, except in the case of claims (i) resulting from a breach of this Agreement, in which case the breaching Party is responsible for payment of the non -breaching Party's deductible for any responding insurance, and (ii) covered by an indemnity set forth in this Agreement. 14. Ownership; Option to Purchase. a. Ownership of System. Ownership; Personal Property. Throughout the Term, Seller shall be the legal and beneficial owner of the System, and all RECs and Incentives, and the System will remain the personal property of Seller and will not attach to or be deemed a part of, or fixture to, the Premises or any Improvement on which the System is installed. Each of the Seller and Purchaser agree that the Seller is the tax owner of the System and all tax filings and reports shall be filed in a manner consistent with this Agreement. The System will at all times retain the legal status of personal property as defined under Article 9 of the Uniform Commercial Code. ii. Notice to Purchaser Lienholders. Purchaser shall use commercially reasonable efforts to place all parties having a Lien on the Premises or any Improvement on which the System is installed on notice of the ownership of the System and the legal status or classification of the System as personal property. If any mortgage or fixture filing against the Premises could reasonably be construed as prospectively attaching to the System as a fixture of the Premises, Purchaser shall provide a disclaimer or release from such lienholder. iii. Fixture Disclaimer. If Purchaser is the fee owner of the Premises, Purchaser consents to the filing of a disclaimer of the System as a fixture of the Premises in the office where real estate records are customarily filed in the jurisdiction where the Premises are located. If Purchaser is not the fee owner, Purchaser shall obtain such consent from such owner. For the avoidance of doubt, in either circumstance Seller has the right to file such disclaimer. iv. SNDA. Upon request, Purchaser shall deliver to Seller a subordination and non -disturbance agreement in a form mutually acceptable to Seller and the provider of the subordination and non -disturbance agreement from the (7794548:) SEIA C&I PPA, version 2.0 Exh. 3, p. 9