Exhibit 10.3
Execution
Version
Certain portions
of this Exhibit have been redacted pursuant to Item 601(b)(10) of Regulation S-K and, where applicable, have been marked
with “[***]” to indicate where redactions have been made. The marked information has been redacted because it is both
(i) not material and (ii) would likely cause competitive harm to the Company if publicly disclosed.
MEMBERSHIP INTEREST PURCHASE AGREEMENT
with respect to
Mesquite Sky Holding LLC
by and between
Clearway Renew LLC, as Seller
and
Lighthouse
Renewable Class A LLC, as Purchaser
dated as of December 21, 2020
| TABLE OF CONTENTS |
|
| |
Page |
| |
|
| Article 1 DEFINITIONS AND PRINCIPLES OF INTERPRETATION |
1 |
| 1.01.
Definitions |
1 |
| 1.02.
Rules of Interpretation |
12 |
| Article 2 SALE OF MEMBERSHIP INTERESTS AND CLOSING |
12 |
| 2.01.
Purchase and Sale. |
12 |
| 2.02.
Payment of Purchase Price |
12 |
| 2.03.
Closing |
12 |
| 2.04.
Adjusted Purchase Price Amount |
13 |
| 2.05.
Post-Closing Additional Turbine Adjustments |
13 |
| 2.06.
Certain Proceeds |
14 |
| Article 3 REPRESENTATIONS AND WARRANTIES |
14 |
| 3.01.
Representations and Warranties with respect to Seller, the Company and the Mesquite Sky Entities |
14 |
| 3.02.
Representations and Warranties with Respect to Purchaser |
24 |
| Article 4 CONDITIONS PRECEDENT |
25 |
| 4.01.
Closing Date Conditions Precedent |
25 |
| Article 5 Certain Covenants |
27 |
| 5.01.
Regulatory and Other Permits |
27 |
| 5.02.
Access to Information |
27 |
| 5.03.
Notification of Certain Matters |
28 |
| 5.04.
Conduct of Business |
28 |
| 5.05.
Fulfillment of Conditions |
31 |
| 5.06.
Further Assurances |
31 |
| 5.07.
Purchaser’s Substitute Support Obligations |
31 |
| 5.08.
Tax Matters |
32 |
| 5.09.
No Solicitation |
33 |
| 5.10.
[***] |
33 |
| 5.11.
Purchaser Parent Guaranty |
33 |
| 5.12.
Post-Execution Date Documents |
33 |
| Article 6 Indemnification |
34 |
| 6.01.
Indemnification by Seller |
34 |
| 6.02.
Indemnification by Purchaser |
34 |
| 6.03.
Survival of Representations, Warranties, Covenants and Agreements |
34 |
| 6.04.
Limitations on Claims |
35 |
TABLE OF CONTENTS
(continued)
| |
Page |
| |
|
| 6.05.
Procedure for Indemnification of Third Party Claims |
35 |
| 6.06.
Rights of the Indemnifying Party in the Defense of Third Party Claims |
36 |
| 6.07.
Direct Claims |
37 |
| 6.08.
Exclusive Remedy |
37 |
| 6.09.
Mitigations |
37 |
| 6.10.
Indemnity Treatment |
37 |
| Article 7 Termination |
37 |
| 7.01.
Termination |
37 |
| 7.02.
Effect of Termination |
38 |
| Article 8 GENERAL PROVISIONS |
38 |
| 8.01.
Notices |
38 |
| 8.02.
Entire Agreement |
39 |
| 8.03.
Specific Performance |
39 |
| 8.04.
Time of the Essence |
39 |
| 8.05.
Expenses |
39 |
| 8.06.
Confidentiality; Disclosures |
40 |
| 8.07.
Waiver |
40 |
| 8.08.
Amendment |
40 |
| 8.09.
No Third Party Beneficiary |
40 |
| 8.10.
Assignment |
40 |
| 8.11.
Severability |
40 |
| 8.12.
Governing Law |
40 |
| 8.13.
Consent to Jurisdiction |
41 |
| 8.14.
Waiver of Jury Trial |
41 |
| 8.15.
Limitation on Certain Damages |
41 |
| 8.16.
Disclosures |
41 |
| 8.17.
PDF Signature; Counterparts |
42 |
TABLE
OF CONTENTS
(continued)
Exhibits:
| Exhibit A |
Base Case Model |
| Exhibit B |
Officer’s Certificate of Seller |
| Exhibit C |
Secretary’s Certificate of Seller |
| Exhibit D |
Officer’s Certificate of Purchaser |
| Exhibit E |
Secretary’s Certificate of Purchaser |
| Exhibit F |
Assignment of Membership Interests |
| Exhibit G |
Form of Purchaser Parent Guaranty |
| Exhibit H |
Form of Build-Out Agreement |
| Exhibit I |
Form of Drop Down Assignment and Assumption Agreement |
| Exhibit J |
Certain Seller Proceeds Agreement |
| |
|
| Schedules: |
|
| |
|
| Schedule 1.03 |
Ancillary Documents |
| Schedule 4.01(m) |
Agreement to be Amended |
| Schedule 5.04(b)(xxiii) |
Certain Covenants |
| Schedule 6.01(b) |
Certain Indemnification Matters |
| |
|
| Disclosure Schedules: |
|
| |
|
| Schedule 1.01 |
Permitted Liens |
| Schedule 3.01(c) |
Seller Consents |
| Schedule 3.01(e) |
Seller Approvals |
| Schedule 3.01(f) |
Legal Proceedings |
| Schedule 3.01(g) |
Brokers |
| Schedule 3.01(i) |
Permitted Business Jurisdictions |
| Schedule 3.01(i)(ii) |
Permitted Equity Encumbrances |
| Schedule 3.01(i)(iii) |
Directors and Officers |
| Schedule 3.01(i)(v) |
Permitted Options |
| Schedule 3.01(i)(vi) |
Permitted Additional Investments |
| Schedule 3.01(i)(vii) |
Permitted Additional Business Operations |
| Schedule 3.01(i)(ix) |
Liens on Acquired Interests |
| Schedule 3.01(j) |
Liabilities |
| Schedule 3.01(k) |
Taxes |
| Schedule 3.01(m)(i) |
Company Contracts |
| Schedule 3.01(m)(iii) |
Company Contracts Defaults |
| Schedule 3.01(n)(i) |
Land |
| Schedule 3.01(n)(ii) |
Permitted Real Property Agreements |
| Schedule 3.01(n)(iii) |
Real Property Rights |
| Schedule 3.01(p)(i) |
Environmental Law Non-Compliance |
| Schedule 3.01(p)(iii) |
Environmental Permits |
| Schedule 3.01(p)(iv) |
Release of Hazardous Substances |
| Schedule 3.01(q)(i) |
Permits |
| Schedule 3.01(q)(ii) |
Regulatory Noncompliance |
| Schedule 3.01(r) |
Affiliate Transactions |
| Schedule 3.01(s)(i) |
Intellectual Property |
TABLE
OF CONTENTS
(continued)
| Schedule 3.01(t) |
Insurance |
| Schedule 3.01(v) |
Absence of changes |
| Schedule 3.01(w) |
Bank Accounts |
| Schedule 3.01(y) |
Support Obligations |
| Schedule 3.02(c) |
Purchaser Consents |
| Schedule 3.02(e) |
Permits |
| Schedule 3.02(h) |
Brokers |
| Schedule 3.02(i) |
Purchaser Approvals |
| Schedule 5.04(b) |
Conduct of Business |
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS MEMBERSHIP INTEREST
PURCHASE AGREEMENT (this “Agreement”), dated as of December 21, 2020 (the “Execution Date”),
is entered into by and between Clearway Renew LLC, a Delaware limited liability company (“Seller”), and Lighthouse
Renewable Class A LLC, a Delaware limited liability company (“Purchaser”). Purchaser and Seller are referred
to, collectively, as the “Parties” and each, individually, as a “Party.” Capitalized terms
not otherwise defined herein shall have the meaning given them in Section 1.01 of this Agreement.
RECITALS:
1. Seller
owns one hundred percent (100%) of the Class B membership interests (the “Class B Units”) of Mesquite
Sky Holding LLC, a Delaware limited liability company (the “Company”), and Apex Clean Energy Holdings, LLC (the
“Class A Member”) owns one hundred percent (100%) of the Class A membership interests of the Company.
2. The
Company is the sole member and one hundred percent (100%) owner of Mesquite Sky Class B Holdco LLC, a Delaware limited liability
company (“Class B Holdco”), and Class B Holdco is the sole member and one hundred percent (100%) owner
of Mesquite Sky TE Holdco LLC, a Delaware limited liability company (“TE Holdco”).
3. TE
Holdco is the sole member and one hundred percent (100%) owner of BMP Wind LLC, a Delaware limited liability company (“Project
Company” and, together with Class B Holdco and TE Holdco, the “Mesquite Sky Entities” and each
a “Mesquite Sky Entity”).
4. The
Project Company is developing an approximately 345 MW wind power project and associated infrastructure located in Callahan County,
Texas (the “Project”) and sells electric power therefrom.
5. On
the Closing Date, subject to the satisfaction or waiver of the applicable conditions precedent set forth herein, fifty and one
one-hundredth percent (50.01%) of the Class B Units (the “Acquired Interests”) will be sold to Purchaser
for the Purchase Price as provided herein.
6. Purchaser
and HASI have agreed that, as sole shareholders of Lighthouse Renewable HoldCo LLC (the “Master JV HoldCo”),
they shall, immediately upon the Closing, contribute their respective Class B Units to the Master JV HoldCo and cause Master
JV HoldCo to be admitted as the Class B Member of the Company (the “Drop Down”).
AGREEMENT
NOW, THEREFORE, in
consideration of the mutual agreements, covenants, representations and warranties set forth herein, and intending to be legally
bound hereby, the Parties agree as follows:
Article 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
1.01. Definitions.
As used in this Agreement,
the following defined terms have the meanings indicated below:
“Acquired Interests”
has the meaning set forth in the recitals to this Agreement.
“Acquisition
Proposal” has the meaning set forth in Section 5.09.
“Action or Proceeding”
means any action, suit, proceeding, arbitration or investigation by or before any Governmental Authority.
“Additional
Turbine” has the meaning set forth in the Tax Equity Agreement.
“Additional
Turbine Amount” means, with respect to each Additional Turbine, an amount of money that is equal to the Additional Turbine
Holdback Amount divided by the number of Additional Turbines.
“Additional
Turbine Deadline” means the earlier of (a) the date on which the final Additional Turbine is Placed in Service
and (b) the Outside Date.
“Additional
Turbine Holdback Amount” means an amount of money that is equal to (a) the Base Purchase Price (as adjusted
pursuant to Section 2.04) multiplied by (b) the fraction that is the result of (i) the
total number of Additional Turbines, divided by (ii) 69.
“Adjusted Purchase
Price Amount” has the meaning set forth in Section 2.04(c).
“Adjusted Purchase
Price Model” means the Base Case Model, with the following updated by Seller prior to the Closing Date, in each case
on the basis of the Pricing Adjustments:
(a) Tab
D - TE, Input Reference J75;
(b) Tab
Inputs, Input Reference C24:25;
(c) Tab
Scenario, Input Reference I8;
(d) Tab
TE Depr, Input Reference G106-AT106
(e) Tab
Inputs, Input Reference C186, C189, C200, C203, C214, C217, C242 and C245;
(f) Tab
Inputs, Input Reference P45:WQ45, P47:AZ47, C11 and C43:C54;
(g) Tab
Inputs, Input Reference G144:G182 and H144:H182;
(h) Tab
Inputs, Input Reference E457:E492;
(i) Tab
Inputs, Input Reference G457:G492 and P505:AX505; and
(j) Tab
Inputs, Input Reference C390:C391.
provided, that such calculations
shall assume that any expected Additional Turbines will be Placed in Service on the Outside Date.
“Affiliate”
of a specified Person means any other Person that directly or indirectly through one or more intermediaries Controls, is Controlled
by or is under common Control with the Person specified. For the purposes of this Agreement, Clearway Energy Group LLC and its
direct or indirect subsidiaries, including Seller, the Company and the Mesquite Sky Entities shall not be considered “Affiliates”
of Clearway Energy, Inc. and its direct or indirect subsidiaries, including Purchaser.
“Ancillary Document”
means (a) each of the documents set forth on Schedule 1.03 and (b) any Financing Document, in each case, other
than the Financing Agreement and the Tax Equity Agreement.
“Apportioned
Obligations” has the meaning set forth in Section 5.08(b).
“Assignment
of Membership Interests” means the Assignment and Assumption Agreement, in substantially the form of Exhibit F
attached hereto.
“Balance Sheet”
has the meaning set forth in Section 3.01(u).
“Balance Sheet
Date” has the meaning set forth in Section 3.01(u).
“Base Case Model”
means the financial projections with respect to the Project in file Mesquite Sky Financial Model – CE Vehicle –
External CWEN 12142020.xlsb, and attached as Exhibit A.
“Base Purchase
Price” has the meaning set forth in Section 2.02.
“Build-Out Agreement”
means that certain Build-Out Agreement, to be dated as of the Closing Date, by and among the Project Company, TE HoldCo, Clearway
Energy Operating LLC, and each subsequent party that may become a party thereto substantially in the form and to the effect of
Exhibit H.
“Business Day”
means a day other than Saturday, Sunday or any day on which banks located in the State of New York or the State of New Jersey are
authorized or obligated to close.
“Cap”
has the meaning set forth in Section 6.04(b).
“Certain Seller
Proceeds Agreement” means that certain Seller Proceeds Agreement, to be entered into by and between Seller and the Master
JV HoldCo, substantially in the form of Exhibit J attached hereto.
“Class A
Member” has the meaning set forth in the recitals to this Agreement.
“Class B
Holdco” has the meaning set forth in the recitals to this Agreement.
“Class B
Units” has the meaning set forth in the recitals to this Agreement.
“Closing”
has the meaning set forth in Section 2.03(a).
“Closing Date”
has the meaning set forth in Section 2.03(a).
“Closing Date
Schedule Supplement” has the meaning set forth in Section 5.03.
“Code”
means the Internal Revenue Code of 1986 and the rules and regulations promulgated thereunder.
“Company”
has the meaning set forth in the recitals to this Agreement.
“Company Contracts”
means all material Contracts and amendments, modifications and supplements thereto, to which the Company or the Mesquite Sky Entities
is a party or by which the Company, the Mesquite Sky Entities or any of their assets or properties are bound.
“Consequential
Damages” has the meaning set forth in Section 8.15.
“Constitutive
Documents” means the certificate of formation and the limited liability company agreement or partnership agreement of
a Person.
“Contract”
means any agreement, purchase order, commitment, evidence of Indebtedness, mortgage, indenture, security agreement or other contract,
entered into by a Person or by which a Person or any of its assets are bound.
“Control”
of a Person means the power, directly or indirectly, to direct or cause the direction of the management or policies of such Person
(whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
“Deductible”
has the meaning set forth in Section 6.04(a).
“Disclosure
Schedules” means the schedules to Seller’s and Purchaser’s representations and warranties of even date herewith
delivered in connection with the execution and delivery of this Agreement.
“Drop Down”
has the meaning set forth in the recitals to this Agreement.
“Drop Down Assignment &
Assumption Agreement” means the assignment of the Acquired Interests to be executed by Purchaser and the Master JV HoldCo
immediately upon the Closing in the form attached hereto as Exhibit I.
“Employee Plan”
means any “employee benefit plan,” as such term is defined in Section 3(3) of ERISA, that is (or when in
effect was) subject to any provision of ERISA, including Title IV of ERISA, and is or was sponsored, maintained or contributed
to by Seller, the Company or the Mesquite Sky Entities or any ERISA Affiliate.
“Environmental
Attributes” means all environmental air quality credits, green credits, carbon credits, emissions reduction credits,
certificates, tags, offsets, allowances, or similar products or rights, howsoever entitled, (a) resulting from the avoidance
of the emission of any gas, chemical or other substance, including mercury, nitrogen oxide, sulfur dioxide, carbon dioxide, carbon
monoxide, particulate matter or similar pollutants or contaminants of air, water, or soil, gas, chemical, or other substance, and
(b) attributable to the generation, purchase, sale or use of renewable energy generated or use of renewable generation technologies
by the Project, or otherwise attributable to the Project, including any renewable energy credits (“RECs”).
“Environmental
Laws” means all applicable Laws relating to the environment, or the handling, storage, transportation, emissions, discharges,
Releases or threatened emissions, discharges or Releases of Hazardous Substances into the environment, including ambient air, surface
water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment or disposal of
any Hazardous Substances, including the Clean Air Act, the Federal Water Pollution Control Act (including the Clean Water Act and
the Oil Pollution Act), the Safe Drinking Water Act, the Federal Solid Waste Disposal Act (including the Resource Conservation
and Recovery Act of 1976), the Comprehensive Environmental Response, Compensation, and Liability Act, the Toxic Substances
Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, the Emergency Planning and Community Right-to-Know Act, the
Occupational Safety and Health Act (to the extent relating to human exposure to Hazardous Substances), and any other federal, state
or local Laws now or hereafter existing relating to any of the foregoing.
“ERCOT” means
the Electric Reliability Council of Texas, Inc.
“ERISA” means
the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate”
means any entity, trade or business that is a member of a group described in Section 414(b), (c), (m) or (o) of
the Code or Section 4001(b)(1) of ERISA that includes Seller, the Company or the Mesquite Sky Entities or that is a member
of the same “controlled group” as Seller pursuant to Section 4001(a)(14) of ERISA; provided, however,
that the Company and the Mesquite Sky Entities shall not be considered to be ERISA Affiliates from and after the Closing Date.
“Execution Date”
has the meaning set forth in the preamble to this Agreement.
“Exempt Wholesale
Generator” or “EWG” has the meaning given to such term in PUHCA.
“FERC”
means the Federal Energy Regulatory Commission.
“Final Completion”
has the meaning set forth in the Tax Equity Agreement.
“Final Completion
Date” means the date on which Final Completion occurs.
“Financing Agreement”
means that certain Financing Agreement to be entered into by and among Class B Holdco, as borrower, [***], and the other lenders
party thereto, in the form delivered by Seller to Purchaser prior to the Execution Date or as modified from such form pursuant
to the terms and subject to the conditions of Section 5.12(a).
“Financing Documents”
means, collectively, (a) the Financing Documents (as defined in the Financing Agreement) and (b) the Tax
Equity Agreement.
“FPA”
means the Federal Power Act and all rules and regulations adopted thereunder.
“Fraudulent
Action” means, with respect to the applicable Party, any fraud, intentional breach, intentional misrepresentation (excluding
negligent misrepresentation) or intentional omission by such Party or any Representative of such Party in connection with this
Agreement.
“GAAP”
means generally accepted accounting principles in the United States, consistently applied throughout the relevant periods.
“Governmental
Approval” means any consent or approval required by any Governmental Authority.
“Governmental
Authority” means any federal, state, local or municipal governmental body, any governmental, quasi-governmental, regulatory
or administrative agency, commission, body or other authority exercising or entitled to exercise any administrative, executive,
judicial, legislative, policy, regulatory or taxing authority or power, including NERC, FERC, ERCOT, and each Regional Entity,
or any court or governmental tribunal.
“HASI”
means HA Lighthouse LLC, a Delaware limited liability company.
“HASI Purchase
Agreement” means the membership interest purchase and sale agreement pursuant to which HASI will acquire the remaining
49.99% of the Class B Units from the Seller simultaneously with the Closing.
“Hazardous Substances”
means any substance, element, compound or mixture, whether solid, liquid or gaseous: (a) which is defined as “hazardous
waste” or “hazardous substance” or “pollutant” or “contaminant” under any Environmental
Law; (b) which is otherwise hazardous and is subject to regulation by any Governmental Authority; (c) petroleum
hydrocarbons (other than naturally occurring petroleum hydrocarbons); (d) polychlorinated biphenyls (PCBs); (e) asbestos-containing
materials (other than naturally occurring asbestos); or (f) radioactive materials (other than naturally occurring radioactive
materials).
“Indebtedness”
means all obligations of a Person (a) for borrowed money, (b) evidenced by notes, bonds, debentures or
similar instruments, (c) for the deferred purchase price of goods or services (other than trade payables or accruals
incurred in the ordinary course of business and not past due), (d) under capital leases, (e) secured by
a Lien on the assets of such Person, whether or not such obligation has been assumed by such Person, (f) with respect
to reimbursement obligations for letters of credit and other similar instruments (whether or not drawn), (g) in the
nature of guaranties of the obligations described in clauses (a) through (f) above of any other Person or as to which
such Person has an obligation substantially the economic equivalent of a guaranty, (h) for unpaid interest, prepayment
penalties, premiums, costs and fees that would arise or become due as a result of the prepayment of any of the obligations referred
to in the foregoing clauses (a) through (g), or (i) in respect of any other amount properly characterized as indebtedness
in accordance with GAAP.
“Indemnified
Party” means any Person claiming indemnification under any provision of Article 6.
“Indemnifying
Party” means any Person against whom a claim for indemnification is being asserted under any provision of Article 6.
“Interconnection
Agreement” has the meaning set forth on Schedule 3.01(m)(i) of the Disclosure Schedules.
“Interim Period”
has the meaning set forth in Section 5.02.
“Knowledge”
means the actual knowledge of [***], after reasonable inquiry of their direct reports.
“Land”
has the meaning set forth in Section 3.01(n)(i).
“Law”
means all laws, statutes, treaties, rules, injunctions, judgments, decrees, writs, orders, codes, ordinances, standards, regulations,
restrictions, executive orders, official guidelines, policies, directives, interpretations, permits or other pronouncements, in
each case, having the effect of law of any Governmental Authority.
“Liabilities”
means any liability, Indebtedness, obligation, commitment, or expense, in each case, requiring either (a) the
payment of a monetary amount, or (b) any type or fulfillment of an obligation, and in each case whether accrued, absolute,
contingent, asserted, matured, unmatured, secured or unsecured.
“Lien”
means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including, without limitation, any conditional
sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest).
“Losses”
means any and all claims, damages, losses, Liabilities, costs, fines, penalties assessed by any Governmental Authority and expenses
(including settlement costs and any reasonable legal, accounting or other expenses for investigating or defending any actions or
threatened actions), and excluding any consequential, incidental, indirect, special, exemplary or punitive damages.
“Major Project
Change” means a (a) delay in the construction of the Project that is reasonably likely to result in a material
delay in achieving commercial operations, (b) material increase in the costs of, or liability to, the Project that
will not be borne by Seller or otherwise paid, extinguished or fully satisfied as of the Closing Date or (c) to the
extent not taken into account in the Base Case Model, fact, event, circumstance, condition or change that has a material adverse
effect on the expected generation or operating cost of the Project.
“Master JV HoldCo”
has the meaning set forth in the recitals to this Agreement.
“Material Adverse
Effect” means any fact, event, circumstance, condition, change or effect that has, or would reasonably be expected to
have, individually or in the aggregate, a materially adverse effect on the assets, properties, liabilities, financial condition
or results of operations of the Project, the Company or the Mesquite Sky Entities, individually or taken as a whole; provided,
however, that none of the following shall be or will be at the Closing Date deemed to constitute and shall not be taken
into account in determining the occurrence of a Material Adverse Effect: any fact, event, circumstance, condition, change or effect
resulting from (a) any economic change generally affecting the international, national or regional (i) electric
generating industry or (ii) wholesale markets for electric power; (b) any economic change in markets for
commodities or supplies, including electric power, as applicable, used in connection with the Company or the Mesquite Sky Entities;
(c) any change in general regulatory or political conditions, including any engagements of hostilities, acts of war
or terrorist activities, natural disasters or weather-related events or changes imposed by a Governmental Authority associated
with additional security; (d) any change in any Laws (including Environmental Laws), industry standards generally affecting
the industry or markets in which the Company or the Mesquite Sky Entities operate or GAAP; (e) any change in the financial
condition of the Company or the Mesquite Sky Entities caused by the transactions contemplated by this Agreement; (f) any
change in the financial, banking, or securities markets (including any suspension of trading in, or limitation on prices for, securities
on the New York Stock Exchange, American Stock Exchange or Nasdaq Stock Market) or any change in the general national or regional
economic or financial conditions; (g) any actions to be taken pursuant to or in accordance with this Agreement; or
(h) the announcement or pendency of the transactions contemplated hereby, including any labor union activities or disputes;
provided, however, that any fact, event, circumstance, condition, change or effect resulting from clauses (a) through
(f) shall nonetheless be taken into consideration in determining whether a Material Adverse Effect has occurred to the extent
such changes, events, effects or occurrences have a materially disproportionate impact on the Company or the Mesquite Sky Entities,
taken as whole, as compared to similarly situated businesses in the same industry and in the same geographical area, which shall
be deemed to include the State of Texas.
“Mesquite Sky
Entity” or “Mesquite Sky Entities” has the meaning set forth in the recitals to this Agreement.
“MW”
means megawatt (alternating current).
“NERC”
means the North American Electric Reliability Corporation.
“Option”
with respect to any Person means any security, right, subscription, warrant, option, “phantom” stock right or other
Contract that gives the right to (i) purchase or otherwise receive or be issued any shares of capital stock or other security
or equity interest of such Person or any security or right of any kind convertible into or exchangeable or exercisable for any
shares of capital stock or other security or equity interest of such Person, or (ii) receive or exercise any benefits or rights
similar to any rights enjoyed by or accruing to the holder of shares of capital stock (or any other equity interest or security)
of such Person, including any rights to participate in the equity or income of such Person or to participate in or direct the election
of any directors or officers (or similar positions) of such Person or the manner in which any shares of capital stock (or any other
security or equity interest) of such Person are voted.
“Order”
means any writ, judgment, injunction, ruling, decision, order or similar direction of any Governmental Authority, whether preliminary
or final.
“Outside Date”
has the meaning set forth on Section 7.01(b).
“Party”
or “Parties” has the meaning set forth in the preamble to this Agreement.
“Permit”
means all licenses, permits, consents, authorizations, approvals, ratifications, certifications, exemptions, variances, exceptions
and similar consents granted or issued by or from, and filings and registrations with or delivered to, any Governmental Authority.
“Permitted Exceptions”
means, with respect to the Real Property Rights, the following:
(a) all
Liens for Taxes, which are not due and payable as of the Closing Date or, if due, are (i) not delinquent or (ii) being
contested in good faith through appropriate proceedings and set forth on Schedule 1.01 of the Disclosure Schedules and as
to which adequate reserves in accordance with GAAP have been taken on the books of the Company or the Mesquite Sky Entities;
(b) all
building codes and zoning ordinances and other Laws of any Governmental Authority heretofore, now or hereafter enacted, made or
issued by any such Governmental Authority affecting the Real Property Rights;
(c) all
easements, rights-of-way, covenants, conditions, restrictions, reservations, licenses, agreements, and other similar matters which
would not reasonably be expected to, in the aggregate, have a Material Adverse Effect on the use and enjoyment of the Real Property
Rights;
(d) all
encroachments, overlaps, boundary line disputes, shortages in area, drainage and other easements, cemeteries and burial grounds
and other similar matters which would not reasonably be expected to, in the aggregate, have a Material Adverse Effect on the use
and enjoyment of the Real Property Rights;
(e) all
electric, telephone, gas, sanitary sewer, storm sewer, water and other utility lines, pipelines, service lines and facilities of
any nature now located on, over or under the Real Property Rights, and all licenses, easements, rights-of-way and other similar
agreements relating thereto which would not reasonably be expected to, in the aggregate, have a Material Adverse Effect on the
use and enjoyment of the Real Property Rights;
(f) all
existing public and private roads and streets (whether dedicated or undedicated), and all railroad lines and rights-of-way affecting
the Real Property Rights which would not reasonably be expected to, in the aggregate, have a Material Adverse Effect on the use
and enjoyment of the Real Property Rights;
(g) all
rights with respect to the ownership, mining, extraction and removal of minerals of whatever kind and character (including, without
limitation, all coal, iron ore, oil, gas, sulfur, methane gas in coal seams, limestone and other minerals, metals and ores) that
have been granted, leased, excepted or reserved prior to the date hereof which would not, in the aggregate, reasonably be expected
to have a Material Adverse Effect on the use and enjoyment of the Real Property Rights; and
(h) inchoate
mechanic’s and materialmen’s liens for construction in progress and workmen’s, repairmen’s, warehousemen’s
and carrier’s liens arising in the ordinary course of business of the Company or the Mesquite Sky Entities (i) as
to which there is no existing default on the part of the Company or the Mesquite Sky Entities or (ii) that are being
contested in good faith through appropriate proceedings and as set forth on Schedule 1.01 of the Disclosure Schedules and
as to which adequate reserves in accordance with GAAP have been taken on the books of the Company or the Mesquite Sky Entities.
“Permitted Lien”
means any (a) mechanic’s, laborer’s, workmen’s, repairmen’s and carrier’s Liens, including
all statutory Liens (i) relating to obligations as to which there is no existing default on the part of the Company
or the Mesquite Sky Entities or (ii) that Seller is contesting in good faith through appropriate proceedings and set
forth on Schedule 1.01 of the Disclosure Schedules and as to which adequate reserves in accordance with GAAP have been taken
on the books of the Company or the Mesquite Sky Entities, as applicable; (b) Liens for Taxes, assessments and other
governmental charges not yet due and payable or, if due, (i) not delinquent or (ii) being contested in
good faith through appropriate proceedings and set forth on Schedule 1.01 of the Disclosure Schedules and as to which adequate
reserves in accordance with GAAP have been taken on the books of the Company or the Mesquite Sky Entities; (c) good
faith deposits in connection with bids, tenders, leases, contracts or other agreements, including rent security deposits; (d) pledges
or deposits to secure public or statutory obligations or appeal bonds; (e) in the case of personal property owned or
held by the Company or the Mesquite Sky Entities, covenants and other restrictions in the Company Contracts; (f) any
Liens relating to or arising from the Financing Documents; and (g) any other Liens set forth on Schedule 1.01
of the Disclosure Schedules.
“Person”
means any natural person, corporation, limited liability company, general partnership, limited partnership, proprietorship, other
business, entity, organization, trust, union, association or Governmental Authority.
“Placed in Service”
has the meaning set forth in the Tax Equity Agreement.
“Pricing Adjustments”
means:
[***]
“Project”
has the meaning set forth in the recitals to this Agreement.
“Project Company”
has the meaning set forth in the recitals to this Agreement.
“Projections”
has the meaning set forth in Section 3.01(aa).
“Prudent Industry
Practices” means those practices, methods, standards and procedures as are commonly used by a significant portion of
those providing operating services on wind facilities of a type and size similar to the Project, which in the exercise of reasonable
judgment and in the light of the facts known at the time the decision was made, are considered good, safe and prudent practice
in connection with the design, manufacture and construction and use of electrical and other equipment, facilities, equipment and
improvements, with commensurate standards of safety, performance, dependability, efficiency and economy.
“PUCT”
means the Public Utility Commission of Texas.
“PUHCA”
means the Public Utility Holding Company Act of 2005 and the implementing regulations of the FERC thereunder.
“PURA”
means the Texas Public Utility Regulatory Act and the implementing regulations of the PUCT thereunder.
“Purchase Price”
has the meaning set forth in Section 2.02.
“Purchaser”
has the meaning set forth in the preamble to this Agreement.
“Purchaser Indemnified
Parties” means Purchaser, its successors and permitted assigns, and each of their Representatives.
“Purchaser Parent
Guaranty” means the Purchaser Parent Guaranty in the form of Exhibit G.
“Real Property
Rights” means all real property rights and interests of the Company or the Mesquite Sky Entities, including all options,
leases, easements, land use rights, access easements, transmission line easements, rights to ingress and egress, any and all bids,
grants, awards, applications, rights to negotiate, and all other rights relating to the Land.
“Regional Entity”
means Texas Reliability Entity, Inc.
“Release”
means any release, spill, emission, leaking, pumping, pouring, injection, deposit, disposal, emptying, escaping, discharge, dispersal,
dumping, leaching or migration of Hazardous Substances into or upon any land, water, or air, including the movement of Hazardous
Substances through or in any land, water, or air, including the Land.
“Reports”
means (a) the Independent Engineer’s Report, (b) the Environmental Report (as defined in the Tax
Equity Agreement), (c) the Wind Resource Report (as defined in the Tax Equity Agreement), (d) the Insurance
Consultant’s Report (as defined in the Tax Equity Agreement), (e) the Transmission Consultant’s Report
and (f) the Cost Seg Report, including any bring downs of such reports delivered pursuant to the Tax Equity Agreement
as of the Closing Date.
“Representatives”
means with respect to any Person, the officers, directors, employees, counsel, accountants, financing advisors, consultants and
agents of such Person.
“Retained Support
Obligation” has the meaning set forth in Section 5.07(b).
“Seller”
has the meaning set forth in the preamble to this Agreement.
“Seller Approvals”
has the meaning set forth in Section 3.01(e).
“Seller Consents”
has the meaning set forth in Section 3.01(c).
“Seller Fundamental
Representations” has the meaning set forth in Section 6.03.
“Seller Indemnified
Parties” means Seller, its successors and permitted assigns, and each of their Representatives.
“Substitute
Support Obligations” has the meaning set forth in Section 5.07(a).
“Support Obligations”
has the meaning set forth in Section 5.07(a).
“Tax”
or “Taxes” means any income, profits, gross or net receipts, property, sales, use, capital gain, transfer, excise,
license, production, franchise, employment, social security, occupation, payroll, registration, capital, governmental pension or
insurance, withholding, royalty, severance, stamp or documentary, value added, goods and services, business or occupation or other
tax, charge, assessment, duty, levy, unclaimed property or escheat obligation, compulsory loan or fee of any kind (including any
interest, additions to tax, or civil or criminal penalties thereon) of the United States or any state or local jurisdiction therein,
or of any other nation or any jurisdiction therein, together with any obligations for the Taxes of any other Person whether as
successor, a member of a group, indemnitor, or otherwise.
“Tax Equity
Agreement” means that certain Equity Capital Contribution Agreement to be entered into by and between TE Holdco and Tax
Equity Investor, that, with respect to the form of such agreement delivered by Seller to Purchaser prior to the Execution Date,
is (a) the same in all respects as to those certain conditions to the obligations of the Tax Equity Investor set forth
in Section 5.2 of such form of Tax Equity Agreement, and (b) otherwise in all other respect the same or, to the
extent modified, so modified pursuant to the terms and subject to the conditions of Section 5.12(a).
“Tax Equity
Funding Date” means the Funding Date (as defined in the Tax Equity Agreement).
“Tax Equity
Investor” means [***].
“Tax Return”
means any report, form, return, statement or other information (including any amendments) supplied to or filed with, or required
to be supplied to or filed with a Governmental Authority by a Person with respect to Taxes, including information returns, any
amendments thereof or schedule or attachment thereto and any documents with respect to or accompanying requests for the extension
of time in which to file any such report, form, return, statement or other information.
“TE Holdco”
has the meaning set forth in the recitals to this Agreement.
“Title Company”
means Stewart Title Guaranty Company.
“Title Policy”
means the owner’s policy of title insurance, issued by the Title Company in favor of the Project Company, in the form of
the Texas Form T-1 Owner’s Policy of Title Insurance or such replacement form contained in the Basic Manual of Rules,
Rates and Forms for the Writing of Title Insurance in the State of Texas, subject only to the exceptions set forth in the Title
Proforma or otherwise in a form reasonably acceptable to Purchaser.
“Title Proforma”
means the Title Policy Pro Forma (as defined in the Tax Equity Agreement).
“Transfer Taxes”
has the meaning set forth in Section 5.08(a).
“Treasury Regulations”
means the final and temporary regulations promulgated by the U.S. Department of Treasury under the Code.
“Wind Turbine”
has the meaning set forth in the Tax Equity Agreement.
[***]
1.02. Rules of
Interpretation.
(a) Construction.
As used herein, the singular shall include the plural, the masculine gender shall include the feminine and neuter and the neuter
gender shall include the masculine and feminine unless the context otherwise indicates.
(b) References.
References to Articles and Sections are intended to refer to Articles and Sections of this Agreement, and all references to Annexes,
Exhibits and Schedules are intended to refer to Annexes, Exhibits and Schedules attached to this Agreement, each of which is made
a part of this Agreement for all purposes. The terms “include,” “includes” and “including”
mean “including, without limitation” and “including but not limited to”. Any date specified for action
that is not a Business Day shall mean the first Business Day after such date. Any reference to a Person shall be deemed to include
such Person’s successors and permitted assigns. Any reference to any document or documents shall be deemed to refer to such
document or documents as amended, modified, supplemented or replaced from time to time in accordance with the terms of this Agreement.
References to laws refer to such laws as they may be amended from time to time, and references to particular provisions of a Law
include any corresponding provisions of any succeeding Law. The words “herein,” “hereof” and “hereunder”
and words of similar import shall refer to this Agreement as a whole and not to any particular section or subsection of this Agreement.
References to money refer to legal currency of the United States of America.
(c) Accounting
Terms. As used in this Agreement and in any certificate or other documents made or delivered pursuant hereto, accounting terms
not defined in this Agreement or in any such certificate or other document, and accounting terms partly defined in this Agreement
or in any such certificate or other document to the extent not defined, will have the respective meanings given to them under GAAP.
To the extent that the definitions of accounting terms in this Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under GAAP, the definitions contained in this Agreement or in any such certificate or other document
will control.
Article 2
SALE OF MEMBERSHIP INTERESTS AND CLOSING
2.01. Purchase
and Sale. Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, all of the right, title
and interest of Seller in and to the Acquired Interests at the Closing on the terms and subject to the conditions set forth
in this Agreement.
2.02. Payment
of Purchase Price. Upon the terms and subject to the conditions hereinafter set forth, in consideration of the delivery
by Seller of the Acquired Interests, Purchaser, by wire transfer of immediately available United States funds, shall pay to Seller
at the Closing an amount equal to Seventy-Seven Million Three Hundred Thirty-One Thousand Eight Hundred Three Dollars ($77,331,803)
(the “Base Purchase Price” and, as adjusted pursuant to Section 2.04 and Section 2.05,
the “Purchase Price”).
2.03. Closing.
(a) Subject
to the terms and conditions of this Agreement, the closing of the transactions described in Section 2.01 (the “Closing”)
will take place remotely via the electronic exchange of documents and signatures no later than (a) two (2) Business
Days following the fulfillment or waiver of the conditions set forth in Article 4 (other than those conditions that
by their nature are to be satisfied on the Closing Date) or (b) such other time as may be determined by mutual agreement
of Seller and Purchaser (the day on which the Closing takes place being the “Closing Date”).
(b) At
the Closing, the following shall occur:
(i) Purchaser
shall pay the Purchase Price by wire transfer of immediately available funds to Seller’s account, which account shall be
communicated by Seller to Purchaser in writing no later than two (2) Business Days prior to the Closing;
(ii) The
Parties shall deliver, or cause to be delivered, to the other Party the certificates and other deliverables pursuant to Article 4;
(iii) The
execution by both Parties of the Assignment of Membership Interests and all other agreements, documents, instruments or certificates
required to be delivered at or prior to the Closing pursuant to Article 4; and
(iv) Seller
shall deliver to Purchaser a certificate or certificates representing the Acquired Interests, duly endorsed for transfer to Purchaser
or accompanied by one or more membership interests powers duly endorsed for transfer to Purchaser.
2.04. Adjusted
Purchase Price Amount.
(a) No
less than five (5) Business Days prior to the Closing Date, Seller shall provide to Purchaser an Adjusted Purchase Price Model
for purposes of calculating the Adjusted Purchase Price Amount.
(b) If
the Adjusted Purchase Price Amount is positive, then the Base Purchase Price shall be increased by the Adjusted Purchase Price
Amount. If the Adjusted Purchase Price Amount is negative, then the Base Purchase Price shall be decreased by the absolute value
of the Adjusted Purchase Price Amount. Any adjustment made under this Section 2.04 will be treated as an adjustment
to the Base Purchase Price for Tax purposes.
(c) “Adjusted
Purchase Price Amount” shall equal the number set forth in cell PP Adj Table Cell T9 of the Adjusted Purchase Price Model.
2.05. Post-Closing
Additional Turbine Adjustments.
(a) If
at the Closing Date there are no Additional Turbines, then the Base Purchase Price shall not be adjusted by this Section 2.05.
(b) If
at the Closing Date there are any Additional Turbines, then:
(i) The
Base Purchase Price shall be decreased by an amount equal to the Additional Turbine Holdback Amount; and
(ii) If
(A) there has been an adjustment to the Base Purchase Price pursuant to Section 2.05(b)(i) above and
(B) there are any Additional Turbines that have been Placed in Service during the period between the Closing Date and
the Additional Turbine Deadline, Purchaser shall calculate the Additional Turbine Funding Amount and, within five (5) Business
Days after the Additional Turbine Deadline, Purchaser shall pay to Seller the Additional Turbine Funding Amount.
(c) The
“Additional Turbine Funding Amount” shall be an amount of money that is equal to the product of the Additional
Turbine Amount multiplied by the number of Additional Turbines Placed in Service by the Additional Turbine Deadline.
2.06. Certain
Proceeds. Notwithstanding anything herein to the contrary, in the event that anytime following the Final Completion Date,
Purchaser (if Purchaser receives any such payment separately and not from the Company or a Mesquite Sky Entity) or the Company
or any Mesquite Sky Entity receives any payment with respect to any amounts released from any completion escrow account or any
amounts released from adequate reserves established at or prior to the Closing Date in accordance with GAAP by the Company or
any Mesquite Sky Entity, Purchaser and Seller agree that such amount shall be retained by, or immediately refunded to, Seller.
Article 3
REPRESENTATIONS AND WARRANTIES
3.01. Representations
and Warranties with respect to Seller, the Company and the Mesquite Sky Entities. Seller hereby represents and warrants
to Purchaser, as of the Execution Date and the Closing Date, as follows; provided that any representation and warranty
set forth in this Section 3.01 and expressly stated to be made only as of a specified date shall be made solely as
of such date:
(a) Existence.
Seller is a limited liability company duly formed, validly existing and in good standing under the Laws of the State of
Delaware. Seller has full power and authority to execute and deliver this Agreement and any other agreements to be executed
and delivered by Seller hereunder, and to perform its obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby.
(b) Authority.
All actions or proceedings necessary to authorize the execution and delivery by Seller of this Agreement and the performance
by Seller of its obligations hereunder have been duly and validly taken. This Agreement has been duly and validly executed
and delivered by Seller and constitutes the legal, valid and binding obligations of Seller enforceable against Seller in
accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, arrangement, moratorium or other similar Laws relating to or affecting the rights of creditors generally, or by
general equitable principles.
(c) No
Consent. Except as set forth on Schedule 3.01(c) of the Disclosure Schedules (the “Seller Consents”),
and except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or would not
reasonably be expected to adversely affect the ability of Seller to consummate the transactions contemplated by this Agreement
or to perform its obligations hereunder, the execution, delivery and performance by Seller of this Agreement does not require Seller
to obtain any consent, approval or action of or give any notice to any Person as a result or under any terms, conditions or provisions
of any Contract or Permit by which it is bound.
(d) No
Conflicts. The execution, delivery and performance of this Agreement by Seller does not and will not (i) conflict
with, result in a breach of, or constitute a default under, the Constitutive Documents of Seller or the Company or any material
Contract to which Seller, or Company Contract to which the Company or the Mesquite Sky Entities, is a party; (ii) result
in the creation of any Lien upon any of the Acquired Interests or assets or properties of the Company or the Mesquite Sky Entities;
(iii) accelerate or modify, or give any party the right to accelerate or modify, the time within which, or the terms
under which, any duties or obligations are to be performed by Seller, the Company or the Mesquite Sky Entities or any rights or
benefits are to be received by any Person, under any Contract to which Seller, the Company or the Mesquite Sky Entities is a party;
or (iv) violate in any material respect any applicable Law.
(e) Regulatory
Matters. Except as set forth on Schedule 3.01(e) of the Disclosure Schedules (“Seller Approvals”),
no Governmental Approval is required on the part of Seller, the Company or the Mesquite Sky Entities in connection with the execution,
delivery and performance of this Agreement or the consummation of the transactions contemplated by this Agreement.
(f) Legal
Proceedings. Except as set forth in Schedule 3.01(f) of the Disclosure Schedules, and except for Actions or Proceedings
in respect of Environmental Laws that are governed exclusively by Section 3.01(p)(ii), there are no Actions or Proceedings
pending or, to the Knowledge of Seller, threatened, as of the date of this Agreement against Seller, the Company or the Mesquite
Sky Entities that (i) affect Seller, the Company or the Mesquite Sky Entities or any of their assets or properties
(including the Project), except, solely in respect of Seller, which would not reasonably be expected to have a material adverse
effect on Seller’s ability to perform under this Agreement or (ii) would reasonably be expected to result in
the issuance of an Order restraining, enjoining or otherwise prohibiting or making illegal the consummation of any of the transactions
contemplated by this Agreement. None of Seller, the Company or the Mesquite Sky Entities is subject to any Order which materially
restricts the operation of its business or which would reasonably be expected to have a Material Adverse Effect.
(g) Brokers.
Except as set forth on Schedule 3.01(g) of the Disclosure Schedules, no Person has any claim against the Seller,
the Company or the Mesquite Sky Entities for a finder’s fee, brokerage commission or similar payment directly or indirectly
in connection with the transactions contemplated by this Agreement.
(h) Compliance
with Laws. Neither Seller, the Company nor the Mesquite Sky Entities is or, to the Knowledge of Seller, has been in the past
six (6) years in material violation of any material Law or Order applicable to the Company, the Mesquite Sky Entities or the
Project or by which any of the Acquired Interests are bound or subject. Notwithstanding the foregoing, compliance with Environmental
Laws is exclusively and solely governed by Section 3.01(p) hereof. None of Seller, the Company nor the Mesquite
Sky Entities has received notice from any Governmental Authority of any material violation of any such Law.
(i) Company
and the Mesquite Sky Entities.
(i) The
Company and the Mesquite Sky Entities are limited liability companies validly existing and in good standing under the Laws of Delaware,
and each has full power and authority to conduct its business as and to the extent now conducted and to own, use and lease its
assets. The Company and the Mesquite Sky Entities are duly qualified, licensed or admitted to do business and are in good standing
in those jurisdictions specified in Schedule 3.01(i) of the Disclosure Schedules, which are the only jurisdictions
in which the ownership, use or leasing of the Company’s assets and the Mesquite Sky Entities’ assets, or the conduct
or nature of their business, makes such qualification, licensing or admission necessary, except in those jurisdictions where the
failure to be so qualified, licensed or admitted to do business would not reasonably be expected to result in a Material Adverse
Effect.
(ii) All
of the issued and outstanding Acquired Interests are owned directly, beneficially and of record by Seller free and clear of all
Liens, except as set forth on Schedule 3.01(i)(ii) of the Disclosure Schedules. Except as set forth on Schedule 3.01(i)(ii) of
the Disclosure Schedules and for the ownership by the Tax Equity Investor following the consummation of the transactions contemplated
by the Tax Equity Agreement, all of the issued and outstanding equity interests of the Mesquite Sky Entities are owned directly
or indirectly, beneficially and of record by the Company, free and clear of all Liens except as set forth in Schedule 3.01(i)(ii) of
the Disclosure Schedules. All of the equity interests of the Company and the Mesquite Sky Entities have been duly authorized, validly
issued and are fully paid and non-assessable and have been issued in compliance with federal and state securities laws.
(iii) The
name of each director and officer (or similar positions) of the Company and the Mesquite Sky Entities, and the position with the
Company or the Mesquite Sky Entities held by each, are listed in Schedule 3.01(i)(iii) of the Disclosure Schedules.
(iv) Seller
has, prior to the execution of this Agreement, delivered to Purchaser true and complete copies of the Constitutive Documents of
the Company and the Mesquite Sky Entities as in effect on the date hereof.
(v) Except
as set forth in Part I of Schedule 3.01(i)(v) of the Disclosure Schedules, there are no outstanding Options
issued or granted by, or binding upon, the Company or the Mesquite Sky Entities for any Person to purchase or sell or otherwise
acquire or dispose of any equity interest or other security or interest in the Company or the Mesquite Sky Entities other than
as set forth under this Agreement. Except as set forth in Part II of Schedule 3.01(i)(v) of the Disclosure Schedules,
none of the Acquired Interests or the membership interests of the Mesquite Sky Entities are subject to any voting trust or voting
trust agreement, voting agreement, pledge agreement, buy-sell agreement, right of first refusal, preemptive right or proxy.
(vi) Except
as set forth in Section 3.01(i)(ii) and as set forth on Schedule 3.01(i)(vi) of the Disclosure
Schedules, neither the Company nor the Mesquite Sky Entities have any subsidiaries, equity interests, interests in joint ventures
or general or limited partnerships or other investment or portfolio assets of a similar nature.
(vii) Except
as set forth on Schedule 3.01(i)(vii) of the Disclosure Schedules, neither the Company nor the Mesquite Sky Entities
conduct (i) any business other than the development, ownership, operation and management of the Project or (ii) any
operations other than those incidental to the ownership, operation, and management of the Project.
(viii) The
books and records of the Company and the Mesquite Sky Entities are (i) in all material respects, accurate and complete
and have been maintained in accordance with good business practices and (ii) state in reasonable detail and accurately
and fairly reflect the activities and transactions of the Company and the Mesquite Sky Entities.
(ix) The
(A) execution and delivery by Seller of the Assignment of Membership Interests and (B) if applicable, the
delivery of certificates representing the Acquired Interests, duly endorsed for transfer to Purchaser or accompanied by one or
more membership interest powers duly endorsed for transfer to Purchaser, will transfer to Purchaser good, valid and marketable
title to the Acquired Interests, free and clear of all Liens, except as set forth in Schedule 3.01(i)(ix) of the Disclosure
Schedules.
(j) No
Undisclosed Liabilities. Neither the Company nor the Mesquite Sky Entities has any liability or obligation that would be required
to be disclosed on a balance sheet prepared in accordance with GAAP, except for the liabilities and obligations of the Company
or the Mesquite Sky Entities (i) incurred in the ordinary course of business consistent with past practice, (ii) that
do not and are not individually or in the aggregate reasonably expected to have a Material Adverse Effect, (iii) that
constitute amounts payable under the Company Contracts expressly provided for under existing Company Contracts that have not
arisen from a breach thereof or thereunder or (iv) as set forth in Schedule 3.01(j) of the Disclosure
Schedules.
(k) Taxes.
Except as disclosed on Schedule 3.01(k) of the Disclosure Schedules, since the date of formation of the Company and
each of the Mesquite Sky Entities, as applicable:
(i) All
federal and all other material Tax Returns required to be filed by or with respect to the Company or the Mesquite Sky Entities
(or income attributable thereto) have been timely filed with the appropriate Governmental Authorities in all jurisdictions in which
such Tax Returns are required to be filed. Such Tax Returns are true, correct and complete in all material respects, to the extent
such Tax Returns relate to the Company or the Mesquite Sky Entities (or income attributable thereto), and Seller, Affiliates of
Seller, the Company and the Mesquite Sky Entities have paid, or made adequate provisions for the payment of, all Taxes, assessments
and other charges due or claimed to be due (regardless of whether shown on any Tax Return) from the Company or the Mesquite Sky
Entities or for which the Company, Mesquite Sky Entities or the Purchaser could be held liable.
(ii) There
are no (i) Actions or Proceedings currently pending or threatened in writing against the Company or the Mesquite Sky Entities
or related to their business operations, by any Governmental Authority for the assessment or collection of Taxes, (ii) audits
or other examinations of any Tax Return of the Company or the Mesquite Sky Entities (or income attributable thereto) in progress
nor has Seller, any Affiliate of Seller, the Company or the Mesquite Sky Entities been notified in writing of any request for examination
with respect to the Company or the Mesquite Sky Entities, (iii) claims for assessment or collection of Taxes that have been
asserted in writing against Seller or any Affiliate of Seller with respect to the Company or the Mesquite Sky Entities, the Company
or the Mesquite Sky Entities (or the income attributable thereto) or (iv) matters under discussion with any Governmental Authority
regarding claims for assessment or collection of Taxes against the Company or the Mesquite Sky Entities (or income attributable
thereto). There are no outstanding agreements, waivers or consents extending the statutory period of limitations applicable to
any Tax of the Company or the Mesquite Sky Entities, and, except as set forth on Schedule 3.01(k) of the Disclosure
Schedules, neither the Company nor the Mesquite Sky Entities has requested any extensions of time within which to file any Tax
Return. There are no Liens for unpaid or delinquent Taxes, assessments or other charges or deposits with respect to the Acquired
Interests, other than Liens for Taxes not yet due or delinquent or being contested in good faith by appropriate proceedings and
for which adequate reserves on financial statements have been established.
(iii) The
Company and the Mesquite Sky Entities have been properly classified for federal and state income Tax purposes as disregarded entities
or partnerships under Treasury Regulations Section 301.7701-2 and -3 and neither Seller nor any Affiliate of Seller has made
or caused to be made any election for any Tax purposes to classify the Company or the Mesquite Sky Entities as other than a disregarded
entity or partnership.
(iv) Neither
the Company nor the Mesquite Sky Entities is a party to any Tax allocation, Tax sharing or other similar agreement, other than
customary Tax indemnification or other provisions contained in any credit or other ordinary course commercial agreements the primary
purpose of which does not relate to Taxes.
(v) The
Company has never entered into or been a party to any “listed transaction,” as defined in Section 1.6011-4(b)(2) of
the Treasury Regulations.
(vi) None
of the property owned by either the Company or the Mesquite Sky Entities is “tax exempt use property” within the meaning
of Section 168(h) of the Code or “tax exempt bond financed property” within the meaning of Code Section 168(g)(5).
(l) Employees.
Neither the Company nor the Mesquite Sky Entities has, nor has ever had, any employees or any liability, actual or contingent,
with respect to any Employee Plan.
(m) Company
Contracts.
(i) Schedule 3.01(m)(i) of
the Disclosure Schedules contains a true, correct and complete list of all Company Contracts as of the Execution Date, which includes
as of such Execution Date:
(A) all
Contracts for the purchase, exchange or sale of electric power, capacity, ancillary services or Environmental Attributes;
(B) all
Contracts for the transmission of electric power;
(C) all
interconnection Contracts for electricity;
(D) all
Contracts with Seller, HASI or any of their respective Affiliates; and
(E) all
Contracts relating to the Acquired Interests or membership interests of the Company or the Mesquite Sky Entities.
(ii) Seller
has provided Purchaser with, or access to, true, correct and complete copies of all the Company Contracts required to be disclosed
on Schedule 3.01(m)(i) of the Disclosure Schedules and the agreements described on Schedule 3.01(y) of
the Disclosure Schedules, and all amendments, modifications and supplements thereto. Each Company Contract constitutes the legal,
valid, binding and enforceable obligation of the Company or the Mesquite Sky Entities party thereto and to the Knowledge of Seller,
the other parties thereto, except as may be limited by (i) bankruptcy, insolvency, reorganization, moratorium and other
similar laws of general application affecting the rights and remedies of creditors, and (ii) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). Each Company Contract is in
full force and effect.
(iii) Except
as disclosed on Schedule 3.01(m)(iii) of the Disclosure Schedules, neither the Company nor the Mesquite Sky Entities
or, to the Knowledge of Seller, the other parties thereto, is in material violation or material breach of or material default under
any Company Contract to which it is a party.
(iv) None
of Seller, the Company or any of the Mesquite Sky Entities has given or received notice or other written communication regarding
any actual, alleged, possible or potential material violation or material breach with respect to any material provision of, or
any material default under, or intent to cancel or terminate, any Company Contract, which violation, breach or default has not
been remedied, cured or waived or for which any such intent to cancel or terminate has been withdrawn.
(n) Real
Property.
(i) Schedule
3.01(n)(i) of the Disclosure Schedules lists all Real Property Rights of the Company and the Mesquite Sky Entities, the
real property in which the Company and the Mesquite Sky Entities have Real Property Rights, and appurtenances thereto (collectively,
the “Land”). The Land is free and clear of all Liens except (A) for Permitted Exceptions and (B) as
disclosed in the Title Proforma.
(ii) Except
as set forth on Schedule 3.01(n)(ii) of the Disclosure Schedules, neither the Company nor the Mesquite Sky Entities
has entered into any assignment, lease, license, sublease, easement or other agreement granting to any Person any right to the
possession, use, occupancy or enjoyment of the Land.
(iii) Neither
the Company nor the Mesquite Sky Entities has caused or suffered to exist any easement, right-of-way, covenant, condition, restriction,
reservation, license, agreement or other similar matter that would materially interfere with the operation of the Project or the
business of the Company or the Mesquite Sky Entities in respect of the Real Property Rights, except as set forth on Part I
of Schedule 3.01(n)(iii) of the Disclosure Schedules or in the Title Proforma.
(iv) Except
as set forth on Part II of Schedule 3.01(n)(iii) of the Disclosure Schedules, the Real Property Rights are all
the real property rights necessary for the Company and the Mesquite Sky Entities to develop, construct, own and operate the Project.
(v) None
of Seller, the Company or the Mesquite Sky Entities has received any written notice of (A) condemnation, eminent domain
or similar governmental proceeding materially affecting, individually or in the aggregate, the Project or (B) zoning,
ordinance, building, fire, health, or safety code violations materially affecting the Project.
(o) Title
Policy. As of the Closing Date, Seller has provided to Purchaser a true and correct copy of the Title Policy covering the Real
Property Rights. The Real Property Rights are subject only to (i) Permitted Exceptions, (ii) matters disclosed
in the Title Policy and (iii) matters consented to in writing by Purchaser.
(p) Environmental.
(i) Except
as set forth on Schedule 3.01(p)(i) of the Disclosure Schedules, the Company and the Mesquite Sky Entities are
in compliance with all Environmental Laws, except to the extent that any such material non-compliance would not reasonably be expected
to have a Material Adverse Effect. There is no material violation of any Environmental Law or other material liability arising
under any Environmental Law with respect to the Project or the Land.
(ii) There
are no Actions or Proceedings pending or, to the Knowledge of Seller, threatened, as of the date of this Agreement against Seller
(solely in respect of the Project, the Company or the Mesquite Sky Entities), the Company or the Mesquite Sky Entities relating
to any material violation of Environmental Law. None of Seller, the Company or the Mesquite Sky Entities has received written notice
from any Governmental Authority of any material violation of any Environmental Law in respect of the Project, the Company or the
Mesquite Sky Entities (other than those violations that have been resolved or remedied).
(iii) Schedule 3.01(p)(iii) of
the Disclosure Schedules sets forth all material Permits required pursuant to any Environmental Law to be acquired or held by or
for the benefit of Seller, the Company or the Mesquite Sky Entities for the development, construction, ownership, use or operation
of the Land or the business of the Company and the Mesquite Sky Entities as currently conducted. Except as set forth in Schedule 3.01(p)(iii) of
the Disclosure Schedules, such Permits have been obtained in a timely manner and are presently maintained in full force and effect
in the name of the Company or the Mesquite Sky Entities.
(iv) Except
as set forth on Schedule 3.01(p)(iv) of the Disclosure Schedules, to the Knowledge of Seller, there has been no Release
of Hazardous Substances at or from the Project in violation of Environmental Laws or Permits required by or issued pursuant to
any Environmental Law for the development, construction, ownership, use or operation of the Land or the business of the Company
and the Mesquite Sky Entities as currently conducted that would be reasonably expected to trigger any obligation of Seller, the
Company or the Mesquite Sky Entities under Environmental Laws to report, investigate, remove or remediate such Release.
(v) Seller
has made available to Purchaser all material environmental reports, assessments and documents that are in the possession of Seller,
the Company or the Mesquite Sky Entities and that relate to actual or potential material liabilities or obligations under Environmental
Laws with respect to the Project or the Land.
(q) Permits.
(i) Schedule 3.01(q)(i) of
the Disclosure Schedules sets forth all material Permits required pursuant to any Law to be acquired or held by or for the benefit
of Seller, the Company or the Mesquite Sky Entities in connection with the development, construction, ownership, maintenance, or
operation of the Project, except for those required by the Environmental Laws, which are exclusively and solely governed by Section 3.01(p) hereof,
or those of a type that are routinely granted on application and for which none of Seller, the Company or the Mesquite Sky Entities
has reason to believe will not be obtained in due course. Except as set forth in Schedule 3.01(q)(i) of the Disclosure
Schedules, such Permits have been obtained in a timely manner and are presently maintained in full force and effect in the name
of the Company or the Mesquite Sky Entities.
(ii) Except
as set forth on Schedule 3.01(q)(ii) of the Disclosure Schedules, and except as relates to compliance with Environmental
Laws which is exclusively and solely governed by Section 3.01(p) hereof, Seller, the Company and the Mesquite
Sky Entities are in material compliance with each such Permit, and in compliance with the FPA and PUHCA, except where the failure
to so comply would not reasonably be expected to have a Material Adverse Effect, and have received no written notice of violation
or noncompliance from any Governmental Authority which violation or noncompliance has not been remedied or any written notice or
claim asserting or alleging that any such Permit (i) is not in full force and effect, or (ii) is subject
to any Action or Proceeding or unsatisfied condition, in each case of clause (i) and (ii) which has not been remedied
or resolved.
(iii) There
are no proceedings pending or, to the Knowledge of Seller, threatened which would reasonably be expected to result in the modification,
revocation or termination of any material Permit set forth in Schedule 3.01(q)(i) of the Disclosure Schedules.
(r) Affiliate
Transactions. Except (i) for transactions (A) disclosed on Schedule 3.01(r) of the
Disclosure Schedules, (B) under Company Contracts disclosed on Schedule 3.01(m)(i) of the Disclosure
Schedules, or (C) under Company Contracts entered into pursuant to the terms and subject to the conditions of Section 5.12(a),
and (ii) for this Agreement, there are no existing or pending transactions, Contracts or Liabilities between or among
the Company or the Mesquite Sky Entity on the one hand, and Seller or any of Seller’s Affiliates on the other hand.
(s) Intellectual
Property.
(i) To
the Knowledge of Seller, except as set forth in Schedule 3.01(s)(i) of the Disclosure Schedules, there is not
now and has not been during the past three (3) years any infringement or misappropriation by Seller of any valid patent,
trademark, trade name, servicemark, copyright, trade secret or similar intellectual property which relates to the Acquired Interests
or the assets of the Company or the Mesquite Sky Entities and which is owned by any third party, and there is not now any existing
or, to the Knowledge of Seller, threatened claim against Seller of infringement or misappropriation of any patent, trademark, trade
name, servicemark, copyright trade secret or similar intellectual property which directly relates to the Acquired Interests or
the assets of the Company or the Mesquite Sky Entities and which is owned by any third party and which, in each case, would reasonably
be expected to have a Material Adverse Effect.
(ii) The
Company and each of the Mesquite Sky Entities owns or has the valid right to use pursuant to license, sublicense, agreement or
permission, in each case free and clear of all Liens other than Permitted Liens, any intellectual property necessary for it to
conduct its business as currently conducted, other than such intellectual property the absence of which ownership or the right
to use would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(iii) There
is no pending or, to the Knowledge of Seller, threatened claim by Seller against others for infringement or misappropriation of
any trademark, trade name, servicemark, copyright, trade secret or similar intellectual property owned by Seller and which is utilized
in the conduct of the business of the Company or the Mesquite Sky Entities that would reasonably be expected to have a Material
Adverse Effect.
(t) Insurance.
Schedule 3.01(t) of the Disclosure Schedules contains a true, correct and complete list of all insurance policies
as of the date of this Agreement that insure the assets and properties and business of the Company or the Mesquite Sky Entities
or affect or relate to the ownership of any of the assets and properties the Company or the Mesquite Sky Entities. Seller has delivered
to Purchaser detailed summaries of all the insurance policies set forth on Schedule 3.01(t) of the Disclosure Schedules,
all of which are in full force and effect. None of Seller, the Company or the Mesquite Sky Entities has received any notice with
respect to the assets and properties and business of the Company or the Mesquite Sky Entities from any insurer under any insurance
policy applicable to the assets and properties and business of the Company or the Mesquite Sky Entities disclaiming coverage, reserving
rights with respect to a particular claim or such policy in general or canceling any such policy. All premiums due and payable
under all such policies have been paid and the terms of such policies have been complied with by Seller, the Company and the Mesquite
Sky Entities, as applicable, in all material respects. The insurance maintained by or on behalf of the Company or the Mesquite
Sky Entities is adequate to comply with all Laws and Company Contracts. Except as set forth on Schedule 3.01(t) of
the Disclosure Schedules, there are no pending insurance claims. Seller expects insurance coverage for property damage and business
interruption for the Project as described in the property and casualty policies set forth on Schedule 3.01(t) of the
Disclosure Schedules to continue in all material respects after the Closing Date. Furthermore, at the expiration of such policies,
Seller expects the aforementioned policies to be renewed with terms substantially identical to those described in the policies
above.
(u) Balance
Sheet. Seller has previously delivered to Purchaser true, correct and complete copies of the most recent unaudited balance
sheet (the “Balance Sheet”) of the Company and the Mesquite Sky Entities on a consolidated basis for the quarter
ended November 30, 2020 (the “Balance Sheet Date”). The Balance Sheet (i) fairly presents,
in all material respects, the consolidated financial position and consolidated results of operations of the Company and the Mesquite
Sky Entities, as of the Balance Sheet Date, (ii) has been prepared in accordance with GAAP consistently applied during
the period(s) involved except as otherwise noted therein, subject to normal and recurring year-end adjustments that have not
been and are not expected to be material in amount, and (iii) has been prepared from the books and records of the Company
and the Mesquite Sky Entities.
(v) Absence
of Changes. Except as set forth on Schedule 3.01(v) of the Disclosure Schedules, since the Balance Sheet Date (except
as otherwise indicated in subparagraph (vii) below) until the date of this Agreement, there has not been:
(i) any
repurchase, redemption or other acquisition of any equity interests of the Company or the Mesquite Sky Entities or any interests
convertible into equity interests of the Company or the Mesquite Sky Entities or any other change in the capitalization or ownership
of the Company or the Mesquite Sky Entities, other than as permitted pursuant to the terms and subject to the conditions of Section 5.12(a);
(ii) any
merger of the Company or the Mesquite Sky Entities into or with any other Person, consolidation of the Company or the Mesquite
Sky Entities with any other Person or acquisition by the Company or the Mesquite Sky Entities of all or substantially all of the
business or assets of any Person;
(iii) any
action by the Company or the Mesquite Sky Entities or any commitment entered into by any member of the Company or the Mesquite
Sky Entities with respect to or in contemplation of any liquidation, dissolution, recapitalization, reorganization or other winding
up of its business or operations;
(iv) any
material change in accounting policies or practices (including any change in depreciation or amortization policies) of the Company
or the Mesquite Sky Entities, except as required under GAAP;
(v) any
sale, lease (as lessor), transfer or other disposal of (including any transfers to any of its Affiliates), or mortgage or pledge,
or imposition of any Lien on, any of its assets or properties, or interests therein, other than (x) inventory and personal
property sold or otherwise disposed of in the ordinary course of business, and (y) Permitted Liens;
(vi) any
creation, incurrence, assumption or guarantee, or agreement to create, incur, assume or guarantee any Indebtedness for borrowed
money or entry into any “keep well” or other agreement to maintain the financial condition of another Person into any
arrangement having the economic effect of any of the foregoing (including entering into, as lessee, any capitalized lease obligations
as defined in Statement of Financial Accounting Standards No. 13), other than as permitted pursuant to the terms and subject
to the conditions of Section 5.12(a); or
(vii) any
event, circumstance, condition or change relating or with respect to the Company or the Mesquite Sky Entities that would reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect.
(w) Bank
Accounts. Schedule 3.01(w) of the Disclosure Schedules sets forth the names and locations of banks, trust companies
and other financial institutions at which the Company or the Mesquite Sky Entities maintain bank accounts or safe deposit boxes,
in each case listing the type of account, the account number, and the names of all Persons authorized to draw thereupon or who
have access thereto.
(x) Regulatory
Status.
(i) The
Project Company is an “exempt wholesale generator,” as such term is defined in PUHCA. As an “exempt wholesale
generator,” the Project Company is exempt from PUHCA to the extent provided for in 18 C.F.R. § 366.7(e).
(ii) Company
and each of the Mesquite Sky Entities other than the Project Company will become a “holding company,” as defined in
PUHCA, solely with respect to its direct or indirect, as applicable, ownership of the Project Company and, therefore, Company and
each of the Mesquite Sky Entities other than the Project Company is entitled to the exemptions and waivers set forth in at 18 C.F.R.
§ 366.3(a). The Project Company is not a “holding company.”
(iii) As
of the Closing Date, Purchaser, solely by virtue of its indirect ownership of the Project Company, will not be subject to, or will
not lose the exemption from, (A) FERC regulation as an “electric utility company,” a “public-utility company,”
or a “holding company,” or an “affiliate” or “subsidiary company” as defined under PUHCA, (B) as
“public utility” under the FPA, and (C) PUCT regulation as an “electric utility,” “public utility,”
“utility,” “transmission and distribution utility,” or “retail electric provider” under PURA.
(iv) Neither
the Company nor any of the Mesquite Sky Entities is subject to regulation as a “public utility” as that term is defined
under FPA Section 201(e).
(y) Support
Obligations. Schedule 3.01(y) of the Disclosure Schedules sets forth a true and complete list of all the Support
Obligations.
(z) Disclosures.
To the Knowledge of Seller, no representation or warranty by Seller contained in this Agreement, and no statement contained in
the Disclosure Schedules or any other document, certificate or other instrument delivered to or to be delivered by or on behalf
of Seller, the Company or the Mesquite Sky Entities contains, or will contain any untrue statement of a material fact or omits
or will omit to state any material fact necessary, in light of the circumstances under which it was or will be made, in order to
make the statements herein or therein not misleading when taken as a whole.
(aa) Reports.
Seller has made available to Purchaser true, complete and correct copies of all Reports delivered pursuant to the Tax Equity Agreement
as of the Execution Date. As of the Closing Date, Seller has made available to Purchaser true, correct and complete copies of all
Reports that were not made available to Purchaser on the Execution Date.
(bb) Projections.
Seller has prepared the financial projections for the Company and the Mesquite Sky Entities, which are reflected in the Base Case
Model (the “Projections”), in good faith. To the Knowledge of Seller, the Projections (i) are based
on reasonable assumptions, (ii) are consistent in all material respects with Prudent Industry Practices, and (iii) reflect
all material payments to be made by the Company or the Mesquite Sky Entities to Sellers or its Affiliates.
(cc) No
Other Warranties. Except for the warranties set forth herein, the Acquired Interests
are being sold hereunder on an “as is,” “where is” basis. The warranties set forth herein are exclusive
and are in lieu of all other warranties, whether statutory, written or oral, express or implied; Seller provides no other warranties
with respect to the Acquired Interests, the Company, the Project, the Mesquite Sky Entities, the assets of the Company, or the
assets of the Mesquite Sky Entities, including implied warranties of merchantability and fitness for a particular purpose, and
warranties arising from course of dealing or usage of trade, all of which are expressly disclaimed. Except as expressly set forth
in Section 3.01, Seller makes no representation or warranty to Purchaser with respect to any financial projections,
forecasts or forward looking statements of any kind or nature whatsoever relating to the Company, the Project, the Mesquite Sky
Entities, the assets of the Company, the assets of the Mesquite Sky Entities or the Acquired Interests.
3.02. Representations
and Warranties with Respect to Purchaser
. Purchaser hereby represents to Seller
as of the Execution Date and the Closing Date, as follows; provided that any representation and warranty set forth in this
Section 3.02 and expressly stated to be made only as of a specified date shall be made solely as of such date:
(a) Existence.
Purchaser is a limited liability company duly formed, validly existing and in good standing under the Laws of the State of
Delaware. Purchaser has full power and authority to execute and deliver this Agreement and each other agreement required to be
executed by it pursuant to the terms hereof, to perform its obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby and to own or lease its assets and properties and to carry on its business as currently conducted.
(b) Authority.
All actions or proceedings necessary to authorize the execution and delivery by Purchaser of this Agreement, and the performance
by Purchaser of its obligations hereunder, have been duly and validly taken. This Agreement has been duly and validly executed
and delivered by Purchaser and constitutes legal, valid and binding obligation of Purchaser enforceable against Purchaser in accordance
with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, arrangement,
moratorium or other similar Laws relating to or affecting the rights of creditors generally, or by general equitable principles.
(c) No
Consent. Except as disclosed on Schedule 3.02(c) of the Disclosure Schedules, and except as would not,
individually or in the aggregate, reasonably be expected to adversely affect the ability of Purchaser to consummate the transactions
contemplated by this Agreement or to perform its obligations hereunder, the execution, delivery and performance by Purchaser of
this Agreement does not require Purchaser to obtain any consent, approval or action of or give any notice to any Person as a result
or under any terms, conditions or provisions of any Contract by which it is bound.
(d) No
Conflicts. The execution, delivery and performance of this Agreement by Purchaser does not and will not (i) conflict
with, result in a breach of, or constitute a default under, Purchaser’s Constitutive Documents, or any material Contract
to which Purchaser is a party, (ii) result in the creation of any Lien upon any of the assets or properties of Purchaser
or (iii) accelerate or modify, or give any party the right to accelerate or modify, the time within which, or the terms
under which, any duties or obligations are to be performed by Purchaser, or any rights or benefits are to be received by any Person,
under any material Contract to which Purchaser is a party.
(e) Permits
and Filings. Except as disclosed on Schedule 3.02(e) of the Disclosure Schedules, no Permit is required on
the part of Purchaser in connection with the execution, delivery and performance of this Agreement, the consummation of the transactions
contemplated hereby or thereby or any borrowing or other action by Purchaser or any of its Affiliates in connection with obtaining
or maintaining sufficient financing to provide the payment of the Purchase Price.
(f) Legal
Proceedings. There are no Actions or Proceedings pending or, to the knowledge of Purchaser, threatened as of the date of this
Agreement against Purchaser that affects Purchaser or any of its assets or properties which would reasonably be expected to result
in the issuance of an Order restraining, enjoining or otherwise prohibiting or making illegal the consummation of any of the transactions
contemplated by this Agreement.
(g) Purchase
for Investment. Purchaser (i) is acquiring the Acquired Interests for its own account and not with a view to distribution,
(ii) is an “accredited investor” as such term is defined in Rule 501(a) under the Securities
Act of 1933, (iii) has sufficient knowledge and experience in financial and business matters so as to be able to evaluate
the merits and risk of an investment in the Acquired Interests and is able financially to bear the risks thereof, and (iv) understands
that the Acquired Interests will, upon purchase, be characterized as “restricted securities” under state and federal
securities laws and that under such laws and applicable regulations the Acquired Interests may be resold without registration under
such laws only in certain limited circumstances. Purchaser agrees that it will not sell, convey, transfer or dispose of the Acquired
Interests, unless such transaction is made pursuant to an effective registration statement under applicable federal and state securities
laws or an exemption from registration requirements of such securities laws.
(h) Brokers.
Except as set forth on Schedule 3.02(h) of the Disclosure Schedules, no Person has any claim against Purchaser for
a finder’s fee, brokerage commission or similar payment directly or indirectly in connection with the transactions contemplated
by this Agreement.
(i) Governmental
Approvals. Except as set forth on Schedule 3.02(i) of the Disclosure Schedules or which have already been
obtained, no Governmental Approval is required on the part of Purchaser in connection with the execution, delivery and performance
of this Agreement or the consummation of the transactions contemplated hereby.
(j) Compliance
with Laws. Purchaser is not in material violation of any Law except where any such material violation would not in the aggregate
reasonably be expected to have a material adverse effect on Purchaser’s ability to satisfy its obligations under this Agreement.
(k) Due
Diligence. Purchaser, or its Representatives, have had the opportunity to conduct all such due diligence investigations of
the Acquired Interests, the Company, the Mesquite Sky Entities and the Project as they deemed necessary or advisable in connection
with entering into this Agreement and the related documents and the transactions contemplated hereby and thereby. Purchaser
has relied solely on its independent investigation and the representations and warranties made by Seller in Section 3.01
in making its decision to acquire the Acquired Interests and has not relied on any other statements or advice from Seller or its
Representatives.
Article 4
CONDITIONS PRECEDENT
4.01. Closing
Date Conditions Precedent. The obligations of the Parties to sell and purchase, respectively, the Acquired Interests are
subject to the fulfillment (or waiver by the applicable Party), at or before the Closing, by the applicable Party of each of the
following conditions:
(a) Tax
Equity Funding. The Tax Equity Funding Date shall have occurred.
(b) Approvals/Consents.
All consents of Purchaser specified on Schedule 3.02(c) of the Disclosure Schedules and all approvals of Purchaser
specified in Schedule 3.02(i) of the Disclosure Schedules shall have been obtained by the Purchaser; and all Seller
Approvals and Seller Consents shall have been obtained by the Seller and shall in each case be in full force and effect.
(c) Litigation.
No Order shall have been entered which restrains, enjoins or otherwise prohibits or makes illegal the consummation of any of the
transactions contemplated by this Agreement and no Action or Proceeding shall have been instituted before any Governmental Authority
of competent jurisdiction seeking to restrain, enjoin or otherwise prohibit or make illegal the consummation of any of the transactions
contemplated by this Agreement.
(d) Seller
Representations and Warranties. The representations and warranties made by Seller in this Agreement shall be true and correct
in all material respects (except for any of such representations and warranties that are qualified by materiality, including by
reference to Material Adverse Effect, which shall be true and correct in all respects) on and as of the Closing Date as though
such representations and warranties were made on and as of the Closing Date, except to the extent such representations and warranties
expressly relate to an earlier date, in which case as of such earlier date.
(e) Seller
Covenants. The covenants and obligations required by this Agreement to be performed or complied with by Seller at or before
the Closing Date have been duly performed or complied with in all material respects.
(f) Material
Adverse Effect. There will not exist on the Closing Date any condition or fact that, individually or in the aggregate, has
or would reasonably be expected to result in a Material Adverse Effect.
(g) Purchaser
Representations and Warranties. The representations and warranties made by Purchaser in this Agreement shall be true and correct
in all material respects (except for any of such representations and warranties that are qualified by materiality, which shall
be true and correct in all respects) on and as of the Closing Date as though such representations and warranties were made on and
as of the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date, in which
case as of such earlier date.
(h) Purchaser
Covenants. The covenants and obligations required by this Agreement to be performed or complied with by Purchaser at or before
the Closing Date have been duly performed or complied with in all material respects.
(i) Withholding
Certificate. Seller shall have delivered to the Purchaser a certificate in form and substance reasonably satisfactory to the
Purchaser, certifying that the transactions contemplated by this Agreement are exempt from withholding under Code Sections 1445
and 1446(f).
(j) HASI
Purchase Agreement. HASI shall, simultaneously with or prior to the Closing, have closed the acquisition of the Class B
Units (other than the Acquired Interests) pursuant to the HASI Purchase Agreement.
(k) Drop-Down
Assignment. Each of Purchaser and the Master JV HoldCo shall have delivered executed counterparts to the Drop Down Assignment &
Assumption Agreement, to be held in escrow and released immediately following the Closing.
(l) [***]
(m) Amendment
of Certain Agreements. The agreement set forth in Schedule 4.01(m) will have been amended as provided in such schedule.
(n) [Reserved]
(o) Certificates;
Other Ancillary Documents. Seller shall have delivered to Purchaser (i) a certificate, dated as of the Closing
Date and executed by an authorized officer of Seller substantially in the form and to the effect of Exhibit B; (ii) a
certificate, dated as of the Closing Date and executed by the Secretary of Seller substantially in the form and to the effect of
Exhibit C; (iii) a duly executed counterpart to the Certain Seller Proceeds Agreement, to be held in escrow
and released immediately following the Drop Down; (iv) the Title Policy consistent with the Title Proforma in all material
respects; and (v) copies of all recorded documents referred to, or listed as exceptions to title in, the Title Policy
and a copy of all other material documents affecting the Real Property Rights. Purchaser shall have delivered to Seller (A) a
certificate, dated as of the Closing Date and executed by an authorized officer of Purchaser substantially in the form and to the
effect of Exhibit D; (B) a certificate, dated as of the Closing Date and executed by the Secretary of Purchaser
substantially in the form and to the effect of Exhibit E; (C) an executed counterpart to the Build-Out
Agreement executed by the Project Company, TE HoldCo, and Clearway Energy Operating LLC, to be held in escrow and released immediately
following the Closing; and (D) an executed counterpart to the Certain Seller Proceeds Agreement, executed by the Master
JV HoldCo, to be held in escrow and released immediately following the Drop Down.
Article 5
Certain Covenants
5.01. Regulatory
and Other Permits. Seller shall, or shall cause the Company and the Mesquite Sky Entities to, as promptly as practicable,
use commercially reasonable efforts to make all filings with all Governmental Authorities and other Persons required by Seller
or its Affiliates to consummate the transactions contemplated hereby and shall use commercially reasonable efforts to obtain as
promptly as practicable all Permits and all consents, approvals or actions of all Governmental Authorities and other Persons necessary
to consummate the transactions contemplated hereby, including the Seller Approvals and Seller Consents. Without limiting the generality
of the foregoing, (A) prior to the first sale of test power from the Project, Project Company shall have obtained EWG status
and (B) Project Company shall register as a Power Generation Company and certify as a REC generator pursuant to the requirements
of PURA. Seller shall promptly provide Purchaser with a copy of any filing, order or other document delivered to or received from
any Governmental Authority or other Person relating to the obtaining of any such Permits, consents, approvals, or actions of Governmental
Authorities and other Persons. Seller shall provide a status report to Purchaser upon the reasonable request of Purchaser. Seller
shall use commercially reasonable efforts not to cause its Representatives, or the Company, the Mesquite Sky Entities or other
Affiliates of Seller or any of their respective Representatives, to take any action which would reasonably be expected to materially
and adversely affect the likelihood of any approval or consent required to consummate the transactions contemplated hereby. Seller
shall bear its own costs and legal fees contemplated by this Section 5.01.
5.02. Access
to Information. From the Execution Date and continuing until the earlier of the termination of this Agreement or the Closing
Date (the “Interim Period”), Seller shall at all reasonable times and upon reasonable prior notice during regular
business hours make the properties, assets, books and records pertaining to the Company and the Mesquite Sky Entities, the Acquired
Interests or the Project reasonably available for examination, inspection and review by Purchaser and its Representatives; provided,
however, that (a) Purchaser and its Representatives shall be subject to customary confidentiality undertakings
with respect to any such information or access made available, (b) for any site visit or access, Purchaser and its
Representatives will agree to comply with all safety and other policies and procedures disclosed to it while conducting such visit
or access, and (c) Purchaser’s and its Representatives’ inspections and examinations shall not unreasonably
disrupt the normal operations of Seller, the Company, the Mesquite Sky Entities or the Project and shall be at Purchaser’s
sole cost and expense; and provided further that neither Purchaser, nor any of its Affiliates or Representatives, shall
conduct any intrusive environmental site assessment or activities with respect to the Company or the Mesquite Sky Entities or
their properties without the prior written consent of Seller.
5.03. Notification
of Certain Matters. Seller shall have the right (but not the obligation) to deliver to Purchaser, not later than ten (10) Business
Days prior to the Closing Date, a supplement to the Disclosure Schedules (the “Closing Date Schedule Supplement”)
to disclose any matter arising after the date hereof, that, if existing at or arising prior to the date hereof, would have been
required to be set forth in the Disclosure Schedules for the representations and warranties of Seller set forth herein to be true
and correct as of the date hereof, and the Disclosure Schedules shall be deemed to be modified, supplemented and amended to include
the items listed in the Closing Date Schedule Supplement for all purposes hereunder, other than to cure any breach or inaccuracy
of any representation or warranty of Seller contained in this Agreement for purposes of Article 6; provided,
that upon the exercise of any Land Option by the applicable counterparty, Seller shall be entitled to supplement Schedule 3.01(n)(i) of
the Disclosure Schedules with respect to the Real Property Right Seller acquired in accordance with such Land Option (each such
update, a “Land Option Schedule Supplement”), and the Disclosure Schedules shall be deemed to be modified,
supplemented and amended for all purposes hereunder. If any item set forth in the Closing Date Schedule Supplement discloses any
event, circumstance or development that, individually or in the aggregate when taken together with other previously disclosed
events, circumstances or developments, would prevent any of the conditions set forth in Section 4.01 (other than
those conditions related to the bring-down of representations and warranties) to be satisfied, then Purchaser may terminate this
Agreement by delivering notice of termination to Seller within ten (10) Business Days of its receipt of the Closing Date
Schedule Supplement; provided that if Purchaser does not deliver such notice within such ten (10) Business Day period,
then Purchaser shall be deemed to have irrevocably waived its right to terminate this Agreement with respect to such item and
its right to not consummate the transactions contemplated hereby with respect to such item, in each case, after giving effect
to such item under any of the conditions set forth in Section 4.01, but shall not be deemed to have irrevocably waived
its right to indemnification under Section 6.01 with respect to such item.
5.04. Conduct
of Business.
(a) During
the Interim Period, Seller shall cause the Company and each Mesquite Sky Entity to operate and carry on its business in the ordinary
course and substantially as operated prior to the date of this Agreement. Without limiting the foregoing, Seller shall cause the
Company and each Mesquite Sky Entity to perform in all material respects the Company Contracts to which the Company or such Mesquite
Sky Entity is a party and use commercially reasonable efforts consistent with good business practice to preserve the goodwill
of the suppliers, contractors, lenders, Governmental Authorities, licensors, customers, distributors and others having business
relations with the Company and the Mesquite Sky Entities.
(b) Without
limiting Section 5.04(a), except (x) as set forth on Schedule 5.04(b) of the Disclosure Schedules,
(y) as would not be reasonably likely to cause a Major Project Change (with respect to clauses (vi), (vii), (ix) and
(xiv) of this Section 5.04(b) only) or (z) with the express written approval of Purchaser, such
approval not to be unreasonably withheld or delayed, during the Interim Period, Seller shall cause the Company and each Mesquite
Sky Entity not to:
(i) transfer
any of the Acquired Interests to any Person or create or suffer to exist any Lien upon the Acquired Interests other than Permitted
Liens set forth in clauses (f) and (g) of the definition thereof;
(ii) issue,
grant, deliver or sell or authorize or propose to issue, grant, deliver or sell, or purchase or propose to purchase, any of its
equity securities (other than the sale and delivery of the Acquired Interests pursuant to this Agreement and the issuance of membership
interests in TE Holdco pursuant to the Tax Equity Agreement), options, warrants, calls, rights, exchangeable or convertible securities,
commitments or agreements of any character, written or oral, obligating it to issue, deliver, sell, repurchase or redeem, or cause
to be issued, delivered, sold, repurchased or redeemed, any of its equity securities (other than this Agreement and the Tax Equity
Agreement);
(iii) declare,
set aside or pay any dividends on or make any other distributions in respect of the Acquired Interests, or combine, split or reclassify
any of the Acquired Interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution
for any of the Acquired Interests, other than a distribution by the Company to Seller of up to Thirty-Nine Million, Five Hundred
Thousand Dollars ($39,500,000) from the proceeds received by Class B HoldCo from the closing of the debt financing under
the Financing Agreement;
(iv) take
any action or enter into any commitment with respect to or in contemplation of any liquidation, dissolution, recapitalization,
reorganization, or other winding up of business or operations;
(v) open
or establish any new accounts with financial institutions;
(vi) make
any material change in its business or operations, except such changes as may be required to comply with any applicable Law;
(vii) make
any material capital expenditures (or enter into any Contracts in respect of material capital expenditures) other than as contemplated
by the Company Contracts;
(viii) merge
Company or any Mesquite Sky Entity into or with any other Person or consolidate Company or any Mesquite Sky Entity with any other
Person;
(ix) enter
into any Contract for the purchase of real property or any interests therein;
(x) acquire,
or enter into any Contract for any acquisitions (by merger, consolidation, or acquisition of stock or assets or any other business
combination), of any Person or business or any division thereof;
(xi) sell,
lease (as lessor), transfer or otherwise dispose of (including any transfers to any of its Affiliates), or mortgage or pledge,
or impose or suffer to be imposed any Lien on, any of its assets or properties, other than (x) inventory and personal property
sold or otherwise disposed of in the ordinary course of business, and (y) Permitted Liens;
(xii) create,
incur, assume or guarantee, or agree to create, incur, assume or guarantee any Indebtedness for borrowed money or enter into any
“keep well” or other agreement to maintain the financial condition of another Person into any arrangement having the
economic effect of any of the foregoing (including entering into, as lessee, any capitalized lease obligations as defined in Statement
of Financial Accounting Standards No. 13), other than any Indebtedness arising from the Financing Agreement, any of the Financing
Documents or the Morgan Stanley Capital Hedge (as defined in the Disclosure Schedules);
(xiii) make
any loans or advances to any Person, except in the ordinary course of business consistent with past practice;
(xiv) enter
into any Contract that would constitute a Company Contract or amend, modify, grant a waiver in respect of, cancel or consent to
the termination of any Company Contract other than any amendment, modification or waiver which is not material to such Company
Contract and is otherwise in the ordinary course of business;
(xv) enter
into or adversely amend, modify or waive any rights under, in each case, in any material respect, any material Contract (or series
of related Contracts) with Seller or any Affiliate of Seller other than the entry into or amendment, modification, or waiver of
any such Contracts on an arms’ length basis which are not in the aggregate materially adverse to the business of Company
or any Mesquite Sky Entity;
(xvi) make
any material change in accounting policies or practices (including any change in depreciation or amortization policies) of Company
or any Mesquite Sky Entity, except as required under Seller’s GAAP or revalue any of the Company’s or any Mesquite
Sky Entity’s assets;
(xvii) make
or change any material Tax election, change an annual accounting period, adopt or change any accounting method with respect to
Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any
Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation
period applicable to any material Tax claim or assessment relating to Company or the Mesquite Sky Entities, or take any other
similar action relating to the filing of any Tax Return or the payment of any Tax;
(xviii) submit
a self-report or mitigation plan to FERC, NERC or the applicable Regional Entity in connection with the violation or possible
violation of an applicable NERC reliability standard without first notifying Purchaser and providing information regarding the
violation or possible violation;
(xix) pay,
discharge, settle or satisfy any claims, liabilities or obligations prior to the same being due in excess of $50,000 in the aggregate
other than as due and payable in the ordinary course under material Contracts;
(xx) hire
any employees or adopt any Employee Plans;
(xxi) enter
into any joint venture;
(xxii) fail
to maintain insurance coverage substantially equivalent to its insurance coverage as in effect on the date hereof;
(xxiii) take
any action inconsistent with Schedule 5.04(b)(xxiii); or
(xxiv) otherwise
make any commitment to do any of the foregoing in this Section 5.04.
Notwithstanding the
foregoing, Seller may permit the Mesquite Sky Entities to take commercially reasonable actions with respect to emergency situations
so long as Seller shall, upon receipt of notice of any such actions, promptly inform Purchaser of any such actions taken outside
the ordinary course of business.
(c) Notwithstanding
anything to the contrary in this Section 5.04, an action taken by Seller or any of the Mesquite Sky Entities in accordance
with Section 5.12 shall in no event be deemed a breach of this Section 5.04.
5.05. Fulfillment
of Conditions. Each Party shall take all commercially reasonable steps necessary or desirable, and proceed diligently
and in good faith to satisfy each other condition to the obligations of the other Party contained in this Agreement.
5.06. Further
Assurances. During the Interim Period, each Party shall use its commercially reasonable efforts to execute and deliver,
or cause to be executed and delivered, all such documents and instruments and shall take, or cause to be taken, all such further
or other actions as may be necessary to consummate the transactions contemplated by this Agreement, including such actions at
its expense as are necessary in connection with obtaining or providing any third-party consents or notices and all Governmental
Approvals required to be obtained by Seller. During the Interim Period, each Party shall cooperate with the other Party and provide
any information regarding such Party necessary to assist the other Party in making any filings or applications or providing notices
required to be made with any Governmental Authority. Notwithstanding anything to the contrary contained in this Section 5.06,
if the Parties are in an adversarial relationship in litigation or arbitration, the furnishing of any documents or information
in accordance herewith shall be solely subject to applicable rules relating to discovery and the remainder of this Section 5.06
shall not apply.
5.07. Purchaser’s
Substitute Support Obligations.
(a) Purchaser
acknowledges that Seller and certain Affiliates have provided certain credit support pursuant to the support obligations and related
agreements described on Schedule 3.01(y) of the Disclosure Schedules (the “Support Obligations”).
From the Execution Date and continuing until the earlier of the termination of this Agreement or the replacement and/or release
of each Support Obligation, Purchaser shall use commercially reasonable efforts to negotiate a replacement of each Support Obligations
(each, a “Substitute Support Obligation”) with the beneficiary thereof and/or to effect the complete and unconditional
release of such Support Obligation in a manner reasonably satisfactory to Purchaser, Seller and the beneficiary thereof, including
by means of a letter of credit, escrow, posting a bond or cash deposit or other arrangements. The effective date of the Substitute
Support Obligations shall be no earlier than the Closing Date.
(b) From
the Execution Date and continuing until the earlier of (i) the termination of this Agreement, (ii) the
effective date of the applicable Substitute Support Obligation, and (iii) the date such Support Obligation is no longer
required to be maintained under the applicable Company Contract, Seller shall, and shall cause its Affiliates to, (x) maintain
each Support Obligation in full force and effect in accordance with the requirements under the applicable Company Contract, (y) perform
all of its obligations under each Support Obligation and (z) not amend, modify, grant a waiver in respect of, cancel
or consent to the termination of such Support Obligation; provided, however, that solely to the extent that a Support
Obligation cannot be released, terminated or replaced by Purchaser at or prior to the Closing (a “Retained Support Obligation”),
subject to Section 5.07(c) below, Seller shall, and shall cause its Affiliates to, perform its obligations with
respect to such Retained Support Obligation.
(c) To
the extent there is a Retained Support Obligation, Purchaser shall (i) indemnify and hold harmless Seller and its Affiliates
(as applicable) from and against any and all Losses that may be suffered, incurred or sustained by any of them or to which any
of them become subject, resulting from a claim on any such Retained Support Obligation after the Closing Date and arising out of
or relating to the business, operations, properties, assets or obligations of the Company or the Mesquite Sky Entities conducted,
existing or arising after the Closing (including as a result of any draw or demand for or making of any payment by Seller or any
such Affiliate of Seller under any Support Obligation), (ii) diligently continue to seek the release, termination and
replacement of such Support Obligation, and (iii) reimburse Seller or its Affiliates (as applicable) for the actual
out-of-pocket costs of, and fees paid by, Seller or its Affiliates in maintaining such Retained Support Obligation accruing at
any time after the Closing and until such time as such Retained Support Obligation is replaced; provided that Purchaser’s
indemnification obligations under clause (i) shall not affect Seller’s indemnification obligations under Section 5.07(d) or
Section 6.01.
(d) Following
the replacement of a Support Obligation by Purchaser for the Project pursuant to a Substitute Support Obligation, Seller shall
indemnify and hold harmless Purchaser and its Affiliates (as applicable) from and against any and all Losses that may be suffered,
incurred or sustained by any of them or to which any of them become subject, resulting from a claim on any such Substitute Support
Obligation and arising out of or relating to the business, operations, properties, assets or obligations of the Company or the
Mesquite Sky Entities conducted, existing or arising at or prior to the Closing (including as a result of any draw or demand for
or making of any payment by Purchaser or any such Affiliate of Purchaser under any Substitute Support Obligation).
5.08. Tax
Matters.
(a) All
sales, use transfer, controlling interest transfer, recording, stock transfer, real property transfer, value-added and other similar
Taxes and fees (“Transfer Taxes”), if any, arising out of or in connection with the consummation of the transactions
contemplated by this Agreement shall be shared equally by Purchaser and Seller. Tax Returns that must be filed in connection with
such Transfer Taxes shall be prepared and filed by the Party primarily or customarily responsible under applicable local Law for
filing such Tax Returns, and such Party will use commercially reasonable efforts to provide such Tax Returns to the other Party
at least ten (10) business days prior to the date such Tax Returns are due to be filed.
(b) All
real property Taxes, personal property Taxes and similar obligations of the Company and Mesquite Sky Entities imposed by any Governmental
Authority that are due or become due for Tax periods within which the Closing Date occurs shall be apportioned between Seller for
the pre-Closing Date period (which shall include the Closing Date), on the one hand, and the Company (or the applicable Mesquite
Sky Entity) for the post-Closing Date period, on the other hand, as of the Closing Date, based upon the actual number of days of
the Tax period that have elapsed before and after the Closing Date, and any income Taxes imposed on the Company and the Mesquite
Sky Entities shall be allocated between the pre-Closing Date period and the post-Closing Date period as though a taxable year of
the Company and the Mesquite Sky Entities (as applicable) has ended on (and includes) the Closing Date (collectively, the “Apportioned
Obligations”). Seller shall be responsible for the portion of such Apportioned Obligations attributable to the period
ending on (and including) the Closing Date. The Company (or the applicable Mesquite Sky Entity) shall be responsible for the portion
of such Apportioned Obligations attributable to the period beginning after the Closing Date. Each Party shall cooperate in assuring
that Apportioned Obligations that are the responsibility of Seller pursuant to the preceding sentences are paid by Seller, and
that Apportioned Obligations that are the responsibility of the Company (or the applicable Mesquite Sky Entity) pursuant to the
preceding sentence shall be paid by the Company (or the applicable Mesquite Sky Entity). If any refund, rebate or similar payment
is received by the Company or the Mesquite Sky Entities for any real property Taxes, personal property Taxes or similar obligations
referred to above that are Apportioned Obligations, such refund shall be apportioned between Seller and the Company (or the applicable
Mesquite Sky Entity) as aforesaid on the basis of the obligations of the Company and the Mesquite Sky Entities during the applicable
Tax period. Any refund, rebate or similar payment received by the Company or a Mesquite Sky Entity for any income Tax or Transfer
Tax (other than Transfer Taxes governed under Section 5.08(a)) attributable to the pre-Closing Date period, as determined
above, shall be for the benefit of Seller; and any such refund, rebate or similar payment attributable to the post-Closing Date
period, as determined above, shall be for the benefit of the Company (or the applicable Mesquite Sky Entity).
(c) For
any Taxes with respect to which the taxable period of the Company or the Mesquite Sky Entities (as applicable) ends on or before
the Closing Date, Seller shall, at its sole cost and expense, timely prepare and file with the appropriate authorities all Tax
Returns required to be filed by the Company and the Mesquite Sky Entities (as applicable), and pay or cause to be paid all Taxes
shown to be due thereon. After the Closing Date, the Company shall, at its sole cost and expense, timely prepare and file, or cause
to be timely prepared and filed, with the appropriate authorities all other Tax Returns required to be filed by the Company and
the Mesquite Sky Entities, as applicable, and pay all Taxes shown to be due thereon.
(d) Seller
and Purchaser shall reasonably cooperate, and shall cause their respective Affiliates, employees and agents reasonably to cooperate,
in preparing and filing all Tax Returns of the Company and applicable Mesquite Sky Entities, including maintaining and making available
to each other all records that are necessary for the preparation of any Tax Returns that the Party is required to file under this
Section 5.08, and in resolving all Actions or Proceedings, and audits or examinations with respect to such Tax Returns.
5.09. No
Solicitation
. Until the Closing,
Seller shall not, and shall not authorize or permit the Company, the Mesquite Sky Entities, any of its or their Affiliates or any
of its or their Representatives to, directly or indirectly, (a) encourage, solicit, initiate, facilitate or continue
inquiries regarding an Acquisition Proposal, (b) enter into discussions or negotiations with, or provide any information
to, any Person concerning a possible Acquisition Proposal or (c) enter into any agreements or other instruments (whether
or not binding) regarding an Acquisition Proposal. Seller shall immediately cease and cause to be terminated, and shall cause the
Company, the Mesquite Sky Entities, any of its and their Affiliates and all of its and their Representatives to immediately cease
and cause to be terminated, all existing discussions or negotiations with any Persons conducted heretofore with respect to, or
that could lead to, an Acquisition Proposal. For purposes hereof, “Acquisition Proposal” shall mean (other than
with respect to the transactions contemplated by the Tax Equity Agreement, the Financing Documents and the HASI Purchase Agreement)
any inquiry, proposal or offer from any Person concerning (i) a merger, consolidation, liquidation, recapitalization,
share exchange or other business combination transaction involving the Company or the Mesquite Sky Entities, (ii) the
issuance or acquisition of equity securities of the Company or the Mesquite Sky Entities, or (iii) the sale, lease,
exchange or other disposition of any significant portion of the Company’s or the Mesquite Sky Entities’ properties
or assets.
5.10. [***]
5.11. Purchaser
Parent Guaranty. Purchaser shall, concurrently with the execution and delivery of this Agreement, cause to be executed
and delivered to Seller the Purchaser Parent Guaranty.
5.12. Post-Execution
Date Documents.
(a) As
soon as practicable (but, with respect to the Financing Documents, in no event later than January 29, 2021), Seller shall
(or shall cause the Company and/or applicable Mesquite Sky Entity to) enter into the Financing Documents and the Ancillary Documents
on the following terms and conditions:
(i) With
respect to the Financing Agreement and the Tax Equity Agreement: (A) to the extent such Financing Document is in a
form that deviates in any material respect from the latest form of such Financing Document provided to Purchaser prior to the Execution
Date (provided that, for the avoidance of doubt, any deviation in those certain conditions to the obligations of the Tax Equity
Investor set forth in Article V of such form of Tax Equity Agreement shall be deemed a material deviation), enter into such
Financing Document only upon the prior written consent of Purchaser; or (B) to the extent such Financing Document is
not otherwise subject to the terms and conditions of the foregoing clause (A), enter into such Financing Document without the necessity
of Purchaser’s prior consent in any respect; and
(ii) With
respect to each Ancillary Document: (A) to the extent such Ancillary Document is (1) material to the Company
and/or applicable Mesquite Sky Entity and such Ancillary Document is not designated with an asterisk on Schedule 1.03 or
(2) has been designated with an asterisk but deviates in any material respect from the latest form of such Ancillary
Document provided to Purchaser prior to the Execution Date, enter into such Ancillary Document only upon the prior written consent
of Purchaser (which consent shall not be unreasonably withheld or delayed); or (B) to the extent such Ancillary Document
is not subject to the terms and conditions of the foregoing clause (A), enter into such Ancillary Document without the necessity
of Purchaser’s consent in any respect.
(b) Following
entry into any Financing Document or Ancillary Document, Seller shall promptly provide to Purchaser a true, complete and correct
copy of such Contract or document.
Article 6
Indemnification
6.01. Indemnification
by Seller. Seller hereby indemnifies and holds harmless the Purchaser Indemnified Parties in respect of, and holds each
of them harmless from and against, any and all Losses suffered, incurred or sustained by any of them or to which any of them become
subject, resulting from, arising out of or related to (a) any breach of any representation, warranty, covenant, agreement
or obligation made by Seller in this Agreement or any certificate delivered by Seller pursuant to this Agreement or (b) the
matters referenced on Schedule 6.01(b); provided, however, that the foregoing indemnity shall not apply to
Losses to the extent caused by the gross negligence or willful misconduct of Purchaser Indemnified Parties or their agents, officers,
employees or contractors.
6.02. Indemnification
by Purchaser. Purchaser hereby indemnifies and holds harmless the Seller Indemnified Parties in respect of, and holds
each of them harmless from and against, any and all Losses suffered, incurred or sustained by any of them or to which any of them
become subject, resulting from, arising out of or relating to any breach by Purchaser of any representation, warranty, covenant,
agreement or obligation made by Purchaser in this Agreement or any certificate delivered by Purchaser pursuant to this Agreement;
provided, however, that the foregoing indemnity shall not apply to Losses to the extent caused by the gross negligence
or willful misconduct of Seller Indemnified Parties or their agents, officers, employees or contractors.
6.03. Survival
of Representations, Warranties, Covenants and Agreements. The representations, warranties, covenants, agreements and obligations
of Seller and Purchaser contained in this Agreement are material, were relied on by such Parties, and will survive the Closing
Date as provided in this Section 6.03. Subject to the limitations and other provisions of this Agreement, the representations
and warranties contained herein shall survive the Closing for twelve (12) months after the Closing Date; provided that
(i) the representations and warranties contained in Section 3.01(a) (Existence), Section 3.01(b) (Authority),
Section 3.01(g) (Brokers), Sections 3.01(i)(i), (ii), (v) and (ix) (Company and Mesquite
Sky Entities), Section 3.02(a) (Existence), Section 3.02(b) (Authority) and Section 3.02(h) (Brokers)
(the “Seller Fundamental Representations”) shall survive the Closing for five (5) years after the Closing
Date and (ii) the representations and warranties in Section 3.01(k) (Taxes) shall survive the Closing
until thirty (30) days after the expiration of the applicable Tax statute of limitations. The covenants, agreements and obligations
in this Agreement to be performed shall survive until the date on which they have been fully performed. No claim under this Agreement
may be made unless such Party shall have delivered, with respect to any claim under Section 6.01 or Section 6.02,
a written notice of claim prior to the applicable survival expiration date; provided that, if written notice for a claim
of indemnification has been provided by the Indemnified Party pursuant to Section 6.04(a) on or prior to the
applicable survival expiration date, then the obligation of the Indemnifying Party to indemnify the Indemnified Party pursuant
to this Article 6 shall survive with respect to such claim until such claim is finally resolved.
6.04. Limitations
on Claims.
(a) An
Indemnifying Party shall have no obligation to indemnify an Indemnified Party until the aggregate amount of all Losses incurred
that are subject to indemnification by such Indemnifying Party pursuant to this Article 6 equal or exceed [***] of
the Purchase Price (the “Deductible”) in which event the Indemnifying Party shall be liable for Losses only
to the extent they are in excess of the Deductible; provided that the Deductible shall not apply to Losses resulting from,
arising out of or relating to (i) any Fraudulent Action or (ii) the matters referenced on Schedule 6.01(b).
(b) The
aggregate liability of the Seller Indemnifying Parties and the Purchaser Indemnifying Parties under this Article 6
resulting from any claims under any breaches of representations or warranties herein and in any certificates delivered pursuant
hereto, shall be limited to an amount equal to [***] of the Purchase Price (the “Cap”); provided that
the Cap shall not apply to Losses resulting from, arising out of or relating to (i) any Fraudulent Action or (ii) a breach
of the Seller Fundamental Representations; provided, further, that the aggregate liability of the Seller Indemnifying
Parties resulting from the Seller Fundamental Representations plus any other Losses resulting from any claims under breaches
of representations or warranties herein and in any certificates delivered pursuant hereto shall be limited to an amount equal to
the Purchase Price. For the avoidance of doubt, the foregoing limitation will not apply to Losses resulting from, arising out of
or relating to (i) any breach of any covenant, agreement or obligation made herein or any certificate delivered pursuant
hereto or (ii) the matters referenced on Schedule 6.01(b).
(c) The
amount of any claim pursuant to this Article 6 will be reduced by the amount of any insurance proceeds actually recovered
(less the cost to collect the proceeds of such insurance and the amount, if any, of any retroactive or other premium adjustments
reasonably attributable thereto) and the amount of any Tax benefit (which for this purpose means any reduction in cash Taxes payable
that would otherwise be due or the receipt of a refund of Taxes by the Indemnified Parties (or, in the case of an Indemnified Party
that is either a disregarded entity, partnership or other pass-through entity for U.S. federal income tax purposes, the ultimate
taxpayer(s) with respect to such entity), in each case only with respect to the taxable year in which the Loss was incurred
or paid) to the Indemnified Party in respect of such claim or the facts or events giving rise to such indemnity obligation. If
the Indemnified Party realizes such Tax benefit after the date on which an indemnity payment has been made to the Indemnified Party,
the Indemnified Party shall promptly make payment to the Indemnifying Party in an amount equal to such Tax benefit; provided
that such payment shall not exceed the amount of the indemnity payment.
6.05. Procedure
for Indemnification of Third Party Claims.
(a) Notice.
Whenever any claim by a third party shall arise for indemnification under this Article 6, the Indemnified Party shall
promptly notify the Indemnifying Party of the claim and, when known, the facts constituting the basis for such claim and, if known,
the notice shall specify the amount or an estimate of the amount of the liability arising therefrom. The Indemnified Party shall
provide to the Indemnifying Party copies of all material notices and documents (including court papers) received or transmitted
by the Indemnified Party relating to such claim. The failure or delay of the Indemnified Party to deliver prompt written notice
of a claim shall not affect the indemnity obligations of the Indemnifying Party hereunder, except to the extent the Indemnifying
Party was actually disadvantaged by such failure or delay in delivery of notice of such claim.
(b) Settlement
of Losses. If the Indemnified Party has assumed the defense of any claim by a third party which may give rise to indemnity
hereunder pursuant to Section 6.06(c), the Indemnified Party shall not settle, consent to the entry of a judgment of
or compromise such claim without the prior written consent (which consent shall not be unreasonably withheld or delayed) of the
Indemnifying Party.
6.06. Rights
of the Indemnifying Party in the Defense of Third Party Claims.
(a) Right
to Assume the Defense. In connection with any claim by a third party which may give rise to indemnity hereunder, the Indemnifying
Party shall have thirty (30) days after the date the Indemnifying Party is notified of such claim by the Indemnified Party
to assume the defense of any such claim, which defense shall be prosecuted by the Indemnifying Party to a final conclusion or settlement
in accordance with the terms hereof.
(b) Procedure.
If the Indemnifying Party assumes the defense of any such claim, the Indemnifying Party shall (i) select counsel reasonably
acceptable to the Indemnified Party to conduct the defense of such claim and (ii) take all steps necessary in the defense
or settlement thereof, at its sole cost and expense. The Indemnified Party shall be entitled to participate in (but not control)
the defense of any such claim, with its own counsel and at its sole cost and expense; provided that, if the claim includes
allegations for which the Indemnifying Party both would and would not be obligated to indemnify the Indemnified Party, the Indemnifying
Party and the Indemnified Party shall in that case jointly assume the defense thereof. The Indemnified Party and the Indemnifying
Party shall fully cooperate with each other and their respective counsel in the defense or settlement of such claim. The Party
in charge of the defense shall keep the other Party appraised at all times as to the status of the defense or any settlement negotiations
with respect thereto.
(c) Settlement
of Losses. The Indemnifying Party shall not consent to a settlement of or the entry of any judgment arising from, any such
claim or legal proceeding, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably
withheld or delayed).
(d) Decline
to Assume the Defense. The Indemnified Party may defend against any such claim, at the sole cost and expense of the Indemnifying
Party, in such manner as it may deem reasonably appropriate, including settling such claim in accordance with the terms hereof
if (i) the Indemnifying Party does not assume the defense of any such claim resulting therefrom within thirty (30)
days after the date the Indemnifying Party is notified of such claim by the Indemnified Party or (ii) the Indemnified
Party reasonably concludes that the Indemnifying Party is (A) not diligently defending the Indemnified Party, (B) not
contesting such claim in good faith through appropriate proceedings or (C) has not taken such action (including the
posting of a bond, deposit or other security) as may be necessary to prevent any action to foreclose a Lien against or attachment
of any asset or property of the Indemnified Party for payment of such claim; provided that in the case of this clause (ii),
the Indemnified Party will provide written notice to the Indemnifying Party of Indemnified Party’s conclusion, and Indemnifying
Party shall have failed to take the applicable actions within thirty (30) days of such written notice.
6.07. Direct
Claims. In the event that any Indemnified Party has a claim against any Indemnifying Party which may give rise to indemnity
hereunder that does not involve a claim brought by a third party, the Indemnified Party shall promptly notify the Indemnifying
Party of the claim and the facts constituting the basis for such claim and, if known, the amount or an estimate of the amount
of the liability arising therefrom. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days from
receipt of such claim notice that the Indemnifying Party disputes such claim, the amount of such claim shall be conclusively deemed
a liability of the Indemnifying Party hereunder; provided, however, if the Indemnifying Party does notify the Indemnified
Party that it disputes such claim within the required thirty (30) day period, the Parties shall attempt in good faith to agree
upon the rights of the respective Parties with respect to such claim. If the Parties should so agree, a memorandum setting forth
such agreement shall be prepared and signed by both Parties. If such Parties shall not agree, the Indemnified Party shall be entitled
to take any action in law or in equity as such Indemnified Party shall deem necessary to enforce the provisions of this Article 6
against the Indemnifying Party.
6.08. Exclusive
Remedy. Absent any Fraudulent Action, the indemnities set forth in this Article 6 shall be the exclusive remedies
of Purchaser and Seller and their respective members, officers, directors, employees, agents and Affiliates due to misrepresentation,
breach of warranty, nonfulfillment or failure to perform any covenant or agreement contained in this Agreement, and the Parties
shall not be entitled to a rescission of this Agreement or to any further indemnification rights or claims of any nature whatsoever
in respect thereof, all of which the Parties hereto hereby waive.
6.09. Mitigations.
(a) Each
of the Parties agrees to take all commercially reasonable steps to mitigate their respective Losses upon and after becoming aware
of any event or condition which would reasonably be expected to give rise to any Losses that are indemnifiable hereunder.
(b) Upon
making any payment to the Indemnified Party for any indemnification claim pursuant to this Article 6, the Indemnifying
Party shall be subrogated, to the extent of such payment, to any rights which the Indemnified Party may have against any third
parties with respect to the subject matter underlying such indemnification claim and the Indemnified Party shall assign any such
rights to the Indemnifying Party.
6.10. Indemnity
Treatment. Any amount of indemnification payable pursuant to the provisions of this Article 6 shall, to the
extent permitted by law, be treated as an adjustment to the Purchase Price (as determined for all relevant Tax purposes).
Article 7
Termination
7.01. Termination.
This Agreement may be terminated at any time prior to the Closing Date as follows:
(a) by
mutual written consent of Seller and Purchaser;
(b) by
either Party if the Closing has not occurred on or before March 31, 2022 (the “Outside Date”), and the
failure to reach the Closing Date was not caused by a breach of this Agreement by the terminating Party;
(c) by
Purchaser if there has been a breach by Seller of any representation, warranty, covenant or agreement contained in this Agreement
that (i) would result in a failure of a condition set forth in Section 4.01, as applicable, and (ii) either
(x) is a breach of Seller’s obligations to transfer the Acquired Interests at Closing in accordance with this Agreement
or (y) such breach has not been cured, or by its nature cannot be cured, within thirty (30) days following written notification
thereof; provided, however, that if, at the end of such thirty (30) day period, Seller is endeavoring in good faith,
and proceeding diligently, to cure such breach, Seller shall have an additional thirty (30) days in which to effect such cure;
(d) by
Seller if there has been a breach by Purchaser of any representation, warranty, covenant or agreement contained in this Agreement
that (i) would result in a failure of a condition set forth in Section 4.01, as applicable, and (ii) such
breach has not been cured, or by its nature cannot be cured, within 30 days following written notification thereof; provided,
however, that if, at the end of such thirty (30) day period, Purchaser is endeavoring in good faith, and proceeding diligently,
to cure such breach, Purchaser shall have an additional thirty (30) days in which to effect such cure; and
(e) by
Purchaser if there has been a breach by Seller of its covenant in Section 5.12(a) with respect to the Financing
Documents; provided, that such breach was not caused by a breach by Purchaser of the terms and conditions with respect to
its granting of consent under Section 5.12(a), as applicable.
7.02. Effect
of Termination.
(a) If
this Agreement is validly terminated pursuant to Section 7.01, this Agreement will forthwith become null and void,
and there will be no liability or obligation on the part of either Purchaser or Seller (or any of their respective Representatives
or Affiliates) in respect of this Agreement, except that the applicable portions of this Section 7.02, and the entirety
of Article 6 and Article 8 will continue to apply following any termination; provided, however,
that nothing in this Section 7.02 shall release any Party from liability for any breach of this Agreement by such Party
prior to the termination of this Agreement (and any attempted termination by the breaching Party shall be void).
(b) Upon
termination of this Agreement by a Party for any reason, (i) Purchaser shall return all documents and other materials of Seller
relating to the Company and the Mesquite Sky Entities, the assets or properties of the Company and the Mesquite Sky Entities and
the transactions contemplated hereby, and (ii) Seller shall return all documents and other materials of Purchaser relating
to the transactions contemplated hereby. Each Party shall also return to the other Party any information relating to the Parties
to this Agreement furnished by one Party to the other, whether obtained before or after the execution of this Agreement. All information
received by each Party with respect to the Company, the Mesquite Sky Entities, the assets of the Company, the assets of the Mesquite
Sky Entities or the other Party shall remain subject to the provisions of Section 8.06.
Article 8
GENERAL PROVISIONS
8.01. Notices.
All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if
delivered personally, by email, by reputable national overnight courier service or by registered or certified mail (postage prepaid)
to the Parties at the following addresses or email addresses, as applicable:
If to Purchaser, to: Lighthouse
Renewable Class A LLC
c/o Clearway Energy, Inc.
300 Carnegie Center Drive, Suite 300
Princeton, NJ 08540
Attn: Christopher Sotos and Kevin Malcarney
Email: christopher.sotos@clearwayenergy.com and
kevin.malcarney@clearwayenergy.com
With a copy
to: Perkins Coie LLP
700 13th St. NW
Washington, DC 20005
Attn: Eric Dodson Greenberg
Email: egreenberg@perkinscoie.com
If to Seller,
to: Clearway Renew LLC
4900 N Scottsdale Road, Suite 5000
Scottsdale, AZ 85251
Attention: Chief Operating Officer
E-mail: am@clearwayenergy.com
With a copy
to: Clearway Renew LLC
5780 Fleet St., Suite 130
Carlsbad, CA 92008
Attention: General Counsel
E-mail: legal@clearwayenergy.com
Notices, requests and other communications
will be deemed given upon the first to occur of such item having been (a) delivered personally (or refusal of delivery)
to the address provided in this Section 8.01, (b) delivered by confirmed email transmission to the email
address provided in this Section 8.01 or (c) delivered (or refusal of such delivery) by registered or certified
mail (postage prepaid) or by reputable national overnight courier service in the manner described above to the address provided
in this Section 8.01 (in each case regardless of whether such notice, request or other communication is received by
any other Person to whom a copy of such notice, request or other communication is to be delivered pursuant to this Section 8.01).
Any Party from time to time may change its address, email address or other information for the purpose of notices to that Party
by giving notice specifying such change to the other Party.
8.02. Entire
Agreement. This Agreement and the documents referenced herein supersede all prior discussions and agreements, whether
oral or written, between the Parties with respect to the subject matter hereof, and contains the entire agreement between the
Parties with respect to the subject matter hereof.
8.03. Specific
Performance. The Parties to this Agreement agree that if any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached, irreparable damage would occur and money damages may not be a
sufficient remedy. In addition to any other remedy at law or in equity, each of Purchaser and Seller shall be entitled to specific
performance by the other Party of its obligations under this Agreement and immediate injunctive relief, without the necessity
of proving the inadequacy of money damages as a remedy.
8.04. Time
of the Essence. Time is of the essence with regard to all duties and time periods set forth in this Agreement.
8.05. Expenses.
Except as otherwise expressly provided in this Agreement, whether or not the transactions contemplated hereby are consummated,
each Party will pay its own costs and expenses incurred in connection with the negotiation, execution and performance of this
Agreement.
8.06. Confidentiality;
Disclosures. This Agreement is confidential, and neither Party shall disclose the terms and conditions of this Agreement
to any other Person (other than such Party’s Affiliates and its and their respective officers, directors, employees, representatives,
agents and advisors) or issue, or permit any of its Affiliates to issue, any press release or otherwise make any public statements
or announcements regarding this Agreement or the transactions contemplated by this Agreement without the prior written consent
(which consent will not be unreasonably withheld, conditioned or delayed) of the other Party, except as otherwise determined to
be necessary or appropriate to comply with applicable Law or any rules or regulations of any supervisory authority, regulatory
authority or other Governmental Authority having jurisdiction over it or any of its Affiliates (including the Securities and Exchange
Commission and the New York Stock Exchange), in which case, the Party required to make such disclosure or issue such press release
or public announcement shall use reasonable efforts to provide the other Party a reasonable opportunity to comment on such disclosure,
press release or public announcement in advance thereof. Notwithstanding the foregoing, nothing contained in this Agreement shall
limit either Party’s (or either Party’s respective Affiliates’) rights to disclose the existence of this Agreement
and the general nature of the transactions described herein on any earnings call or in similar discussions with financial media
or analysts, stockholders and other members of the investment community.
8.07. Waiver.
Any term or condition of this Agreement may be waived at any time by the Party that is entitled to the benefit thereof, but no
such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the Party waiving such
term or condition and delivered pursuant to Section 8.01. No waiver by any Party of any term or condition of this
Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this Agreement or by Law or otherwise afforded, will be cumulative
and not alternative.
8.08. Amendment.
This Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each Party.
8.09. No
Third Party Beneficiary. The terms and provisions of this Agreement are intended solely for the benefit of each Party
and their respective successors or permitted assigns, and it is not the intention of the Parties to confer third party beneficiary
rights upon any other Person other than any Person entitled to indemnity under Article 6.
8.10. Assignment.
The obligations of the Parties under this Agreement are not assignable without the prior written consent of the other Party, which
such Party may withhold in its discretion; provided that Purchaser may assign this Agreement, including the right to acquire
the Acquired Interests, without the prior written consent of Seller, to (a) any Affiliate of Purchaser, or (b) any financial
institution providing purchase money or other financing to Purchaser from time to time as collateral security for such financing,
in each case so long as Purchaser remains fully liable for its obligations under this Agreement.
8.11. Severability.
If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future Law, and if the
rights or obligations of any Party under this Agreement shall not be materially and adversely affected thereby, (a) such
provision shall be fully severable, (b) this Agreement shall be construed and enforced as if such illegal, invalid
or unenforceable provision had never comprised a part hereof and (c) the remaining provisions of this Agreement shall
remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance
here from.
8.12. Governing
Law. This Agreement and all disputes and controversies arising hereunder shall
be governed by and construed in all respects in accordance with the laws of the State of NEW YORK without giving effect to THE
CONFLICTS OF LAWS PRINCIPLES THEREOF EXCEPT FOR SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
8.13. Consent
to Jurisdiction.
(a) For
all purposes of this Agreement, and for all purposes of any Action or Proceeding arising out of or relating to the transactions
contemplated hereby or for recognition or enforcement of any judgment, each Party hereto submits to the personal jurisdiction of
the courts of the State of New York and the federal courts of the United States sitting in New York County, and hereby irrevocably
and unconditionally agrees that any such Action or Proceeding may be heard and determined in such New York court or, to the extent
permitted by law, in such federal court. Each Party hereto agrees that a final judgment in any such Action or Proceeding may be
enforced in any other jurisdiction by suit on the judgment or in any other manner provided by Law. Nothing in this Agreement shall
affect any right that any Party may otherwise have to bring any Action or Proceeding relating to this Agreement against the other
Party or its properties in the courts of any jurisdiction.
(b) Each
Party hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so:
(i) any
objection which it may now or hereafter have to the laying of venue of any Action or Proceeding arising out of or relating to this
Agreement or any related matter in any New York state or federal court located in New York County, and
(ii) the
defense of an inconvenient forum to the maintenance of such Action or Proceeding in any such court.
(c) Each
Party hereto irrevocably consents to service of process by registered mail, return receipt requested, as provided in Section 8.01.
Nothing in this Agreement will affect the right of any Party hereto to serve process in any other manner permitted by Law.
8.14. Waiver
of Jury Trial. To the fullest extent permitted by Law, each Party hereby waives
all rights to a trial by jury in any legal action to enforce or interpret the provisions of this Agreement or that otherwise relates
to this Agreement.
8.15. Limitation
on Certain Damages. Notwithstanding anything in this Agreement to the contrary,
no Party shall be liable to any other Party for any consequential, special, indirect, speculative, exemplary, or punitive damages
(collectively, “Consequential Damages”) for any reason with respect to any matter arising out of or relating
to this Agreement, whether based on statute, contract, tort or otherwise and whether or not arising from the other Party’s
sole, joint or concurrent negligence, strict liability or other fault; provided, however, that any losses arising
out of third party claims for which a Party is entitled to indemnification under this agreement shall not constitute Consequential
Damages. For the avoidance of doubt, an Action for the payment of the Purchase Price shall not be considered Consequential Damages.
8.16. Disclosures.
Seller or Purchaser may, at its option, include in the Disclosure Schedules items that are not material in order to avoid any
misunderstanding, and any such inclusion, or any references to dollar amounts, shall not be deemed to be an acknowledgment or
representation that such items are material, to establish any standard of materiality or to define further the meaning of such
terms for purposes of this Agreement. In no event shall the inclusion of any matter in the Disclosure Schedules be deemed or interpreted
to broaden Seller’s or Purchaser’s representations, warranties, covenants or agreements contained in this Agreement.
Neither the specification of any dollar amount in any representation nor the mere inclusion of any item in a schedule or in the
Disclosure Schedules as an exception to a representation or warranty shall be deemed an admission by a Party that such item represents
a material fact, event or circumstance or that such item is reasonably likely to result in a Material Adverse Effect on, the Company,
the Mesquite Sky Entities or Purchaser.
8.17. PDF
Signature; Counterparts. This Agreement may be executed by PDF signature in any number of counterparts, each of
which will be deemed an original, but all of which together will constitute one and the same instrument.
[Signature Page Follows]
IN WITNESS WHEREOF,
the Parties have caused this Membership Interest Purchase Agreement to be executed and delivered by their duly authorized officers
as of the date first above written.
| |
Seller: |
| |
|
| |
CLEARWAY RENEW LLC, |
| |
a Delaware limited liability company |
| |
|
| |
By: |
/s/ Craig Cornelius |
| |
|
Name: Craig Cornelius |
| |
|
Title: President |
[Signature
Page – Mesquite Sky MIPA]
| |
Purchaser: |
| |
|
| |
Lighthouse Renewable
Class A LLC, a |
| |
Delaware limited liability company |
| |
|
| |
By: |
/s/ Christopher S. Sotos |
| |
|
Name: Christopher S. Sotos |
| |
|
Title: President |
[Signature
Page – Mesquite Sky MIPA]
