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the Customer demanding that such failure be cured or, if cure cannot be
effected in thirty (30) days, the Customer fails to begin to cure and proceedto
completion thereof as quickly as is reasonably possible.

ESCO Contract — Nashua Schools & EEI, Inc.

8. Insurance and Bond Requirements

8.1 Worker's Compensation Insurance
ESCO shall provide during the life of this Contract Worker's Compensation Insurance as
follows:
1) Workers Compensation Coverage A = Statutory Minimum
Employer's Liability Coverage B $500,000 each accident
2) $500,000 disease peremployee
3) $500,000 disease policy

8.2 Comprehensive General Liability

ESCO shall provide Comprehensive General Liability with the following minimum coverage
with respect to the Work and other operations performed by ESCO and its employees,
subcontractors, supplier's agents and invitees:

1) Bodily Injury and Property Damage $1,000,000 each occurrence, $1,000,000 aggregate
2) Products and Completed Operations $1,000,000 each occurrence, $1,000,000 aggregate
3) Contractual Liability and Property Damage $1,000,000 each occurrence,

$1,000,000 aggregate

8.3 Vehicle Liability

ESCO shall provide the following minimum coverage with respect to the operations of the
any employee, including coverage for owned, non-owned, andhired vehicles:

Bodily Injury $1,000,000 each occurrence

Property Damage $1,000,000 each occurrence

Combined Single Limit $1,000,000

8.4 Property Coverage
ESCO shall provide the following coverage against loss or damage by fire and against loss
or damage covered by the special perils insurance endorsement on all Work:

All Risk 80% of Contract Price minimum

Upon completion of Work at Customer buildings, ESCO shall provide an installation floater,
in the full amount of the Contract Price, for the requirements set forth above. The policy or
policies shall specifically state that they are for the benefit and payable to the Customer,
ESCO, and all persons furnishing labor or labor and materials for the Work, shall be listed
as loss payee as their interests may appear.

8.5 Professional Liability Insurance

ESCO shall maintain in full force and effect, at ESCO’s expense, an Errors and Omissions
or Professional Liability Insurance Policy in the amount of $1,000,000 minimum coverage.
The policy shall remain in effect for the duration of the applicable statute of limitations for
claims against construction professionals.

ESCO shall be responsible for all claims, damages, losses or expenses, including attomeys
fees, arising out of or resulting from the performance of professional services contemplated
by this Contract, provided that any such claim is attributable to bodily injury or death, or

25 ESCO Contract — Nashua Schools & EEI, Inc.

injury to or destruction of tangible personal property, or to failures of the Work, including the
loss of use resulting therefrom, and is caused, in whole or in part, by any negligent act, error
or omission of ESCO, any consultant or associate thereof, anyone directly or indirectly
employed by ESCO. ESCO shall submit a Certificate of Insurance and policy endorsement
verifying said coverage upon execution of this Agreement and also any notices of renewals
of such policy as they occur.

8.6 Environmental Impairment Liability Insurance

ESCO shall maintain in full force and effect, at ESCO’s expense, a Sudden & Accidental
Environmental Impairment Liability Insurance Policy in the amount of $1,000,000 minimum
coverage unless comparable coverage is provided pursuant to the policy requiredin Section
8.05. The policy shall remain in effect for the duration of the applicable statute of limitations
for claims against construction professionals.

ESCO shall be responsible for all claims, damages, losses or expenses, including attomeys
fees, arising out of or resulting from the cleanup, removal, and handling of hazardous
materials contemplated by this Contract and is caused, in whole or in part, by any negligent
act, error or omission of ESCO, any consultant or associate thereof, anyone directly or
indirectly employed by ESCO. ESCO shall submit a Certificate of Insurance and policy
endorsement verifying said coverage upon execution of this Agreement and also any
notices of renewals of such policy as they occur.

8.7 Customer as Additional Insured
The Customer shall be named as additional insured on ESCO’s Liability Policies.
8.8 Certificates of Insurance, Policies

Certificates of insurance and policy endorsements, acceptable to the Customer, shall be
submitted to the Customer upon the execution of this Contract and shall be renewed upon
expiration of the policies. Certificates shall indicate that the coverage required bysection
8.01 through 8.06 is in effect. If the Customer is damaged by ESCO’s failure to maintain
such insurance, then ESCO shall be responsible for all reasonable costs or damages
attributable thereto. Certificates shall note the thirty (30) day cancellation notice requirement
of Section 8.09. All policies shall be issued by companies authorized to write that type of
insurance under the laws of the State of New Hampshire. Any and all deductibles and self-
insured retention contained in any insurance policy shall be assumed by and at the risk of
ESCO.

8.9 Cancellation
Customer shall be provided notice of cancellation at least thirty (30) days prior to the
effective date thereof for any insurance policy required of ESCO by this Contract.

8.10 Bonds

ESCO shall provide the Customer with payment and performance bonds and unless waived
by Customer pursuant to Section 6.05, so called, to cover the full term and value of the
Contract and issued by a regulated financial institution wth a Best Rating of not less than A,
or a comparable rating from a recognized financial rating firm, as follows:

26 ESCO Contract — Nashua Schools & EEI, Inc.

1) Performance and payment bonds shall secure 100% of the Contract Price (these
bonds apply only to the Work to be performed, and do not cover any
guaranteed savings)

Any performance and payment bonds shall be maintained in full force and effect by ESCO
until Project Acceptance. Customer agrees that upon Project Acceptance any performance
and payment bonds shall be released and any obligations arising thereunder shall be
terminated. AIA bond forms may be employed.

This Agreement shall be governed and construed in accordance with the law of the State of New Hampshire and
any action in law or in equity concerning any dispute arising out of this Agreement, the obligations performed or to
be performed thereunder, or in any way referable thereto shall be brought in the New Hampshire Superior Court

for the Southern Judicial District of Hillsborough County or in the New Hampshire 9th Circuit Court situated in
Nashua, New Hampshire and not elsewhere.”

27 ESCO Contract — Nashua Schools & EEI, Inc.

9. General Provisions
9.1 Dispute Resolution

Disputes regarding changes in and interpretations of the terms or scope of the Contract and
denials of or failures to act upon claims for payment for extra work or materials shall be
resolved according to the following procedures:

1) All claims by ESCO shall be made in witing and submitted to the Customer fora
written decision.

2) ESCO shall not delay, suspend, or curtail performance under the Contractas
a result of any dispute subject to this section.

3) Within sixty (60) days of submission of the dispute to the Customer, the Customer
shall issue a written decision stating the reasons therefor, and shall notify the
parties of their right of appeal under this section. If the official of the Customer
is unable to issue a decision within sixty (60) days, he shall notify ESCO in
writing of the reasons and of the date by which the decision shallissue.

4) Failure to issue a decision within one hundred and twenty (120) day period or
within the additional period specified in such written notice shall give the
petitioner the right to pursue any legal remedies available to him without
further delay.

5) ESCO and Customer agree that all disputes relating to this Contract and
performance thereunder shall be resolved through courts in the State of
New Hampshire and any appellate court from which an appeal may be
taken therefrom. To the fullest extent permitted by law, the parties
irrevocably and unconditionally submit to the exclusive jurisdiction of said
court.

9.2 Conditions Beyond Control of the Parties

Except as otherwise provided herein, if either party shall be unable to carry out any material
obligation under this Contract due to events beyondits control, such as acts of God,
governmental or judicial action, insurrections, riots, extended labor disputes, fires,
explosions or floods, this Contract shall remain in effect but the affected party’s obligations
shall be suspended until the uncontrollable event terminates or is resolved, unless the
Contract is terminated by either party following a ninety (90) day delay, in which event,
Customer shall pay ESCO for all parts of the Work furnished to the date of termination or as
otherwise agreed.

9.3 Labor Laws

ESCO shall obey and abide by all laws and regulations of the State of New Hampshire
relating to the employment of labor and public work, including, without limitation, the
State’s drug-free workplace policy (ESCO shall deliver to Customer a certificate of
compliance with such policy).

ESCO shall comply with all federal and state laws, rules and regulations promoting fair

28 ESCO Contract — Nashua Schools & EEI, Inc.

employment practices or prohibiting employment discrimination and unfair labor practices.
ESCO shall not discriminate in the delivery of services against any person who otherwise
meets the eligibility criteria for services, or in the hiring of any applicant for employment nor
shall any qualified employee be demoted, discharged or otherwise subject to discrimination
in the tenure, position, promotional opportunities, wages, benefits or terms and conditions of
their employment because of race, color, national origin, ancestry, age, sex, religion,
disability, status as a Vietnam Era Veteran, sexual orientation or for exercising any rights or
benefits afforded by lawincluding the requirements of Federal Executive Orders 11246,
11625, 11375 and 11830 and Title 28 Chapter 5.1.

9.4 Prevailing Wage Rate
NWA

9.5 Appropriations

The Customer reasonably believes that funds can be obtained sufficient to make all
payments due to ESCO under this Contract. The Customer hereby covenants that it will
make reasonable and diligent efforts to obtain and maintain funds from which such
payments may be made, including making provisions for such payments to the extent
necessary in each annual or supplementary budget submitted for the purpose of obtaining
funds, and using reasonable efforts to have such portion of the budget approved. Nothing
herein shall obligate the Customer to institute legal action before any court, to commence
proceedings before any forum, or to institute proceedings in the nature of mandamus
against any public official in attempting to obtain said funds.

96 Laws, Regulations, Ordinances and Standard Practices

ESCO shall perform its obligations hereunder in compliance with any and all applicable
federal, state, and local laws, regulations, ordinances and by-laws, including applicable
licensing and permitting requirements, in accordance with sound engineering and safety
practices, and in compliance with any and all reasonable rules or policies of the Customer
relative to the properties. ESCO shall be responsible for obtaining all governmental pemmits,
licenses, consents, and authorizations as may be required to perform its obligations
hereunder (see also Section 5.10 regarding permits and fees pertaining to the Work).

9.7 Access and Inspection

Customer shall have access to inspect, upon reasonable notice, the Work and the books,
records, and other compilations of data which pertain to this Contract. Records shall be kept
on a generally recognized accounting basis and calculations kept on file in legible form.
Records shall be saved or archived by ESCO for a period of three (3) years after the
termination of this Contract and shall be kept or made available within NewHampshire.

ESCO shall have access, upon reasonable notice to the Customer, to inspect the property
to assess the condition and operation of material and equipment installed.

9.8 Ownership Rights

All drawings, reports and other materials prepared by ESCO specifically in performance of
29 ESCO Contract — Nashua Schools & EEI, Inc.

this Contract shall become the property of the Customer as needed or upon the termination
of the Contract. Customer shall be entitled to any currently or future available credits other
than those agreed to by the Parties to be assigned to the ESCO, i.e. utility rebates, or rights
of use associated with the reduction of energy use, particular technologies employed in or
any attributes associated with the Work.

9.9 Certificates
ESCO certifies as follows:

1) Certificate of Authorization: If ESCO is a corporation, each person executing this
Contract on behalf of ESCO hereby covenants, represents and warrants that
ESCO is a duly incorporated or duly qualified (if foreign) corporation and is
authorized to do business in the State of New Hampshire (a copy of evidence
thereof to be supplied to the Customer upon request); and that each person
executing this Contract on behalf of ESCO is an officer of ESCO and that he
or she is duly authorized to execute, acknowledge and deliver this Contract
to the Customer, a copy of a corporate resolution to this effect is attached
hereto as Attachment 9 - Corporate Resolution.

2) Tax Compliance Certification: Each person signing this Contract on behalf of
ESCO hereby certifies, under the penalties of perjury, thatto the best of
his/ner knowedge and belief, ESCO has complied with any and all
applicable state taxlaws.

3) Certificate of Non-collusion: The undersigned certifies under penalties of penury
that this Contract has been made in good faith and without collusion or
fraud with any other person. As used in this certification, the word “person”
shall mean any natural person, business, partnership, corporation, union,
committee, club, or other organization, entity of group of individuals.

4) Foreign Corporation: ESCO, if a foreign corporation, hereby certifies that it is in
compliance with Title 7 Chapter 1.1 of the General Laws of New
Hampshire and that the name and address of the resident agent is
included with Attachment 9 - Corporate Resolution.

9.10 Assignment

ESCO shall not assign, transfer, convey, or otherwise dispose of this Contract, or any part
hereof, or its right, title or interest in the same or any part thereof, without the prior written
consent of the Customer provided, however, that Customer may not unreasonably withhold
or delay its consent to an assignment of its interest in this Contract to a corporate affiliate
and provided further that ESCO may without the consent of Customer assign its rights for
payments under this Contract to any financial institution, lender or investor in connection
with a leasing or financing arrangement for the ECMs/OCMs. ESCO shall not otherwise
assign by power-of-attomey, or otherwise, any of the moneys due or to become due and
payable under this Contract, without the prior written consent of the Customer.

9.11 Applicable Law and Severability

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This Contract is made and shall be interpreted and enforced in accordance with the laws of
the State of New Hampshire without regard to its conflict of laws provision. If any provision
of this Contract shall be determined to be invalid or unenforceable under applicable law,
such provision shall, insofar as possible, be construed or applied in such manner as will
permit enforcement; otherwise this Contract shall be construed as ifs such provision had
never been made part thereof.

9.12 Independent Contractor

The Contractor shall perform its duties hereunder as an independent contractor and not as
an employee. Neither the Contractor nor any agent or employee of the Contractor shall be
deemed to be an agent or employee of the State of New Hampshire or any agency of
subdivision thereof. Contractor shall be responsible for all payroll taxes and benefits for its
employees and the acts and omissions of its employees, agents, contractors, and
subcontractors.

9.13 Complete Contract

This Contract, together with any documents incorporated herein by attachment as an exhibit
or by reference, shall constitute the entire and exclusive Contract between both parties,
except as may be provided by relevantlaw or regulation, and supersedes and terminates all
prior or contemporaneous arrangements, understandings and agreements, whether oral or
written, and this Contract may not be amended or modified except in writing and executed
by the Customer and ESCO. The RFP and ESCO’s response thereto are incorporated by
reference to the extent not superseded by the Scope of Work or this Contract.

The failure of either ESCO or the Customer to insist upon the strict performance of any term
or condition hereof shall not constitute or be construed as a waiver or relinquishment of
either party’s right to thereafter enforce the same in accordance with this Contract.

9.14 Further Documents

The parties shall timely execute and deliver all documents and perform all further acts that
may be reasonably necessary to effectuate the provisions of this Contract.

9.15 Counterparts

This Contract may be executed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument, and in making proof of this Contract it shall not be necessary to produce or
account for more than one such counterpart.

9.16 Enforceability

ESCO acknowedges that Customer is a government entity that enjoys limited immunity and
other protections under state law from tort claims. As a result, any language in the Contract
that provides for indemnification by Customer, including but not limited to Section 5.17, shall
be enforceable only to the extent permitted by law and shall be limited to the extent of
available proceeds under the insurance policies actually maintained by Customer. Further,
no indemnification by Customer under the Contract shall be deemed or construed to operate

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in practical effect to waive any statutory immunity or statutory limitation of liability of
Customer from claims of any third party, or to impose any further or additional liability to
ESCO, that Customer is or would be subject to in a direct claim by such third party.

This Agreement shall be governed and construed in accordance with the law of the State
of New Hampshire and any action in law or in equity concerning any dispute arising out of
this Agreement, the obligations performed or to be performed thereunder, or in any way
referable thereto shall be brought in the New Hampshire Superior Court for the Southern
Judicial District of Hillsborough County or in the New Hampshire 9th Circuit Court situated
in Nashua, New Hampshire and not elsewnere.”

32 ESCO Contract — Nashua Schools & EEI, Inc.

10. Contract Signatures

IN WITNESS THEREOF, the parties have each caused this Contract to be executed in
counterparts on the dates set forth below (the last of which shall be considered the date of
execution hereof) by their duly authorized representatives.

Energy Efficient
Company: NashuaSchool District Company: _Investmentsinc,
Name: Name: PaulMurphy
By: By:
Title: Title: Director
Date: Date:

33 ESCO Contract — Nashua Schools & EEI, Inc.