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Home My WebLink AboutNCG060387_Name-Owner Change Supporting Info_20220603Execution Version PURCHASE AND SALE AGREEMENT by and between ANAERGIA SERVICES, LLC, as Buyer, and CONCORD ENERGY PARTNERS, LLC, as Seller, and YORK RENEWABLE ENERGY PARTNERS LLC (SOLELY FOR PURPOSES OF SECTIONS 3.1(B), 3.2(B), 3.3(B), 6.4, ARTICLE IX, ARTICLE X AND ARTICLE XI) dated as of September 28, 2021 A1070-007 -- 4166969 1 TABLE OF CONTENTS Page Article I DEFINITIONS AND RULES OF CONSTRUCTION................................................... 1 Section1.1 Definitions.................................................................................................. 1 Section 1.2 Rules of Construction.............................................................................. 10 Article II PURCHASE AND SALE; PURCHASE PRICE; CLOSING ..................................... 11 Section 2.1 Purchase and Sale of Acquired Interests .................................................. 11 Section2.2 Consideration...........................................................................................II Section2.3 The Closing.............................................................................................. 11 Section 2.4 Intended Tax Treatment........................................................................... 13 Article III REPRESENTATIONS AND WARRANTIES RELATING TO SELLER AND YORK.................................................................................................................. 13 Section3.1 Organization............................................................................................. 14 Section 3.2 Authorization; Enforceability.................................................................. 14 Section3.3 No Conflict............................................................................................... 15 Section 3.4 Ownership of Acquired Interests............................................................. 16 Article IV REPRESENTATIONS AND WARRANTIES RELATING TO THE PROJECTCOMPANY ........................................................................................ 16 Section4.1 Organization............................................................................................. 16 Section4.2 No Conflict............................................................................................... 16 Section 4.3 Capitalization; Subsidiaries..................................................................... 17 Section 4.4 Financial Statements; No Undisclosed Liabilities ................................... 18 Section 4.5 Absence of Certain Changes.................................................................... 18 Section4.6 Real Property........................................................................................... 18 Section4.7 Litigation.................................................................................................. 19 Section4.8 Taxes........................................................................................................ 19 Section 4.9 Material Contracts.................................................................................... 20 Section 4.10 Permits; Compliance with Laws.............................................................. 21 Section 4.11 Employee Matters.................................................................................... 21 Section 4.12 Environmental Matters............................................................................. 21 Section4.13 Insurance.................................................................................................. 22 Section4.14 Business................................................................................................... 23 Section 4.15 Bank Accounts......................................................................................... 23 Section 4.16 Regulatory Status..................................................................................... 23 n d 10?0-00? -- 4166969 1 Section 4.17 Intellectual Property................................................................................. 23 Section 4.18 Title to Tangible Personal Property ......................................................... 24 Section4.19 Bankruptcy ............................................................................................... 24 Section 4.20 Brokers' Fees........................................................................................... 24 Section 4.21 No Other Representations and Warranties ............................................... 24 Article V REPRESENTATIONS AND WARRANTIES RELATING TO BUYER .................. 25 Section5.1 Organization............................................................................................. 25 Section 5.2 Authorization; Enforceability.................................................................. 25 Section5.3 No Conflict............................................................................................... 25 Section 5.4 Financial Ability; Solvency..................................................................... 26 Section 5.5 Investment Representation....................................................................... 26 Section5.6 Broker's Fees........................................................................................... 26 Section5.7 Litigation.................................................................................................. 27 Section 5.8 Regulatory Status..................................................................................... 27 Section 5.9 Transfer Compliance Matters.................................................................. 27 Section 5.10 United States Person................................................................................ 27 Section 5.11 No Other Representations and Warranties ............................................... 27 Article VI COVENANTS AND ACKNOWLEDGEMENTS..................................................... 27 Section 6.1 Conduct of Business (Pre-Closing).......................................................... 27 Section6.2 Access...................................................................................................... 29 Section 6.3 Confidentiality; Public Announcements.................................................. 30 Section 6.4 Third -Party Approvals............................................................................. 30 Section 6.5 Update Information.................................................................................. 30 Section6.6 Insurance.................................................................................................. 31 Section 6.7 Further Assurances................................................................................... 31 Section6.8 Exclusivity............................................................................................... 31 Section 6.9 Seller Credit Support ................................................................................ 31 Section 6.10 Reimbursement of O&M Expenses......................................................... 32 Section 6.11 Payment of costs resulting from Environmental Issues ........................... 32 Section 6.12 Payment of Certain Revenues.................................................................. 33 ArticleVII TAX MATTERS ....................................................................................................... 33 Section7.1 Cooperation.............................................................................................. 33 Section7.2 Transfer Taxes......................................................................................... 33 d 10?0-00? -- 4166969 1 Section7.3 Tax Returns.............................................................................................. 34 Section7.4 Property Taxes......................................................................................... 34 Article VIII CONDITIONS TO OBLIGATIONS....................................................................... 34 Section 8.1 Conditions to the Obligations of the Parties ............................................ 34 Section 8.2 Conditions to the Obligations of Buyer ................................................... 35 Section 8.3 Conditions to the Obligations of Seller .................................................... 35 Section 8.4 Frustration of Closing Conditions............................................................ 36 ArticleIX INDEMNIFICATION................................................................................................ 36 Section 9.1 Survival of Representations, Warranties and Covenants ......................... 36 Section 9.2 Indemnification........................................................................................ 37 Section 9.3 Indemnification Procedures..................................................................... 38 Section 9.4 Limitations on Liability........................................................................... 39 Section 9.5 Purchase Price Adjustment...................................................................... 41 Section9.6 Mitigation................................................................................................. 41 Section 9.7 Exclusive Remedy................................................................................... 41 Section 9.8 Directors and Officer's Indemnification.................................................. 41 Section 9.9 Manner of Payments................................................................................ 42 ArticleX TERMINATION.......................................................................................................... 42 Section10.1 Termination.............................................................................................. 42 Section 10.2 Effect of Termination............................................................................... 43 ArticleXI MISCELLANEOUS ................................................................................................... 43 Section11.1 Notices..................................................................................................... 43 Section11.2 Assignment.............................................................................................. 45 Section 11.3 Rights of Third Parties............................................................................. 45 Section11.4 Expenses.................................................................................................. 45 Section11.5 Counterparts............................................................................................. 45 Section 11.6 Entire Agreement..................................................................................... 45 Section 11.7 Disclosure Schedules............................................................................... 46 Section11.8 Amendments............................................................................................ 46 Section11.9 Publicity................................................................................................... 46 Section11.10 Severability.............................................................................................. 47 Section 11.11 Governing Law; Jurisdiction.................................................................... 47 Section 11.12 No Consequential Damages..................................................................... 48 iii d 10?0-00? -- 4166969 1 Section 11.13 Waiver of Other Representations and Warranties ................................... 48 Section 11.14 Affiliate Liability..................................................................................... 49 Exhibits Exhibit A Form of Assignment and Assumption Agreement Disclosure Schedules Schedule 1.1(a)(i) — Seller Knowledge Parties Schedule 1.1(a)(ii) — Buyer Knowledge Parties Schedule 1.1(b) — Permitted Liens: Tax or Governmental Liens (Contested) Schedule 1.1(c) — Permitted Liens: Mechanic's Liens (Contested) Schedule 1.1(d) — Deposits under Workers' Compensation & Similar Requirements Schedule 1.1(e) — Permitted Liens: Other Schedule 3.3 — Seller and York Approvals Schedule 3.3(ii) — Post -Closing Filings Schedule 4.1 — Organizational Documents Schedule 4.3(b) — 3rd Party Purchase Rights Schedule 4.4 — No Undisclosed Liabilities Schedule 4.5 — Actions Since Financial Statement Date Schedule 4.6 — Real Property and Real Property Agreements Schedule 4.7 — Litigation Schedule 4.8 — Taxes Schedule 4.9 — Material Contracts Schedule 4.10 — Permits; Compliance with Laws Schedule 4.12(a) — Environmental Reports Schedule 4.12(b) — Environmental Issues Schedule 4.12(c) — Environmental Permits Schedule 4.13 — Company Policies Schedule 4.15 — Bank Accounts Schedule 4.16(b) — FERC Docket Schedule 4.17 — Intellectual Property Schedule 4.20 — Brokers Schedule 5.3 — Buyer Approvals Schedule 6.1 — Conduct of Business (Pre -Closing) Schedule 6.9 — Seller Credit Support 1V A1070-007 -- 4166969 1 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement'), dated as of September 28, 2021 (the "Effective Date"), is entered into by and among Anaergia Services, LLC, a Delaware limited liability company ("Bue"), Concord Energy Partners, LLC, a Delaware limited liability company ("Seller"), and York Renewable Energy Partners LLC, a Delaware limited liability company (solely for purposes of Sections 3.1(b), 3.2 b , 3.3 U , 6_4, Article IX, Article X and Article XI) ("York"). Buyer, Seller and York may be referred to herein individually as a "Pam' and, collectively as the "Parties". RECITALS WHEREAS, Seller owns M) of the issued and outstanding equity interests in Orbit Energy Charlotte, LLC, a North Carolina limited liability company (the "Project Company'); WHEREAS, York owns �) of the issued and outstanding equity interests in Seller; WHEREAS, the Project Company is the owner of a. MW anaerobic digestion facility located in Charlotte, North Carolina (the "Project'); and WHEREAS, upon the terms and subject to the conditions set forth in this Agreement, Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, one hundred percent (100%) of the issued and outstanding equity interests in the Project Company (the "Acquired Interests"); and NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Article I DEFINITIONS AND RULES OF CONSTRUCTION Section 1.1 Definitions. As used herein, the following terms shall have the following meanings: "Acquired Interests" has the meaning provided to such term in the recitals of this Agreement. "Affiliate" means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person through one or more intermediaries or otherwise. For the purposes of this definition, "control" means, where used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by Contract or otherwise, and the terms "controlling" and "controlled" have correlative meanings. A1070-007 -- 4166969 1 "Agreement" has the meaning provided to such term in the preamble to this Agreement "Assignment and Assumption Agreement" means the Assignment and Assumption Agreement assigning the Acquired Interests to Buyer (or to a wholly -owned subsidiary of Buyer, as may be designated by Buyer), to be executed by Seller and Buyer or its designee at the Closing, substantially in the form attached hereto as Exhibit A. "Business" means the business of owning and operating the Project as currently conducted by the Project Company, including the receipt and processing of organic waste utilizing anaerobic digestion technology into methane gas, conversion of such methane gas into renewable electricity and thermal energy, and sale of such renewable electricity, generated by the Project Company at or from the Project, and the conduct of other activities by the Project Company incidental to the foregoing. "Business Day" means any day that is not a Saturday, Sunday or other day on which commercial banks in the city of New York, New York are required or authorized by Law to remain closed. "Buyer" has the meaning provided to such term in the preamble to this Agreement. "Bu. e Approvals" has the meaning provided to such term in Section 5.3. "Buyer Fundamental Representation" means the representations and warranties made by Buyer in Sections 5.1 (Organization), 55 2 (Authority; Enforceability), 5_3 (No Conflict) and 5_4 (Financial Ability; Solvency). "Buyer Indemnified Parties" has the meaning provided to such term in Section 9.2(a). "Claim" means a timely claim for indemnification pursuant to Article IX. "Claim Notice" has the meaning provided to such term in Section 9.3(a). "Closing" has the meaning provided to such term in Section 2.3(a). "Closing" has the meaning provided to such term in Section 2.3(a). "Closing Payment" has the meaning provided to such term in Section 2.2. "Code" means the Internal Revenue Code of 1986, as amended. "Company Policies" has the meaning provided to such term in Section 4.13. "ConfidentialityAgreement" means the Non -Disclosure Agreement, dated as of July 31, 2020, by and between Entropy Investment Management, LLC and Anaergia Services, LLC. "Contract" means any legally binding agreement, arrangement, commitment, lease, license, note, bond, mortgage, deed of trust or contract. 2 A1070-007 -- 4166969 1 "Data Room" means the Intralinks virtual data room established by Seller and/or its advisors and made available to Buyer. "Disclosure Schedules" means the disclosure schedules attached hereto. "Dollars" and "$" mean the lawful currency of the United States. "Easements" means all rights of way, easements, encroachments, servitudes, licenses and other rights of the Project Company to use real property in connection with the Project, including in respect of the Owned Real Property, as set forth on Schedule 4.6. "Effective Date" has the meaning provided to such term in the preamble to this Agreement. "Employee Benefit Plan" means an "employee benefit plan" within the meaning of Section 3(3) of ERISA, or any other employee compensation or benefit plan, policy or arrangement. "Environmental Attributes" means (i) any and all credits, benefits, emissions reductions, offsets, attributes and allowances of any kind, howsoever entitled, attributable to the Project or the electric energy, capacity or other generator -based products produced therefrom, and (ii) any of the foregoing relating to renewable natural gas, whether or not currently utilized by the Project Company. "Environmental Claim" means any claim, action, cause of action or written notice by any Governmental Authority alleging liability or potential liability (including potential liability for investigatory tests, cleanup costs, governmental response costs, natural resources damages, property damages, personal injuries, or penalties) arising out of, based on or resulting from a violation of Environmental Law. "Environmental Issues" has the meaning provided to such term in Section 6.11. "Environmental Issues Costs" has the meaning provided to such term in Section 6.11. "Environmental Law" means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq., the Clean Water Act, 33 U.S.C. § 1251 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq., the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq., the Emergency Planning and Community Right -to -Know Act of 1986, 42 U.S.C. § 11001 et seq., the Safe Drinking Water Act, 42 U.S.C. § 300f et seq., the Endangered Species Act, 16 U.S.C. § 1531 et seq., the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq. and all applicable analogous state or local statutes or ordinances. "Environmental Permits" has the meaning provided to such term in Section 4.12(b)(i). "Environmental Reports" has the meaning provided to such term in Section 4.12(a d1070-007 -- 4166969 1 "ERISA" means the Employee Retirement Income Security Act of 1974 "Federal Tax Credit" means the federal income Tax credit available under Section 45 or Section 48 of the Code or any successor to such sections. "FERC" means the Federal Energy Regulatory Commission, or any successor agency. "Financial Statement Date" means June 30, 2021. "Financial Statements" has the meaning provided to such term in Section 4.4. "FPA" means the Federal Power Act, as amended. "Fraud" means, with respect to a Party, actual and intentional (and not constructive or reckless) common law fraud with respect to the making of the representations and warranties pursuant to Article III, Article IV, or Article V (as applicable) or the performance of any covenant hereunder. "GAAP" means generally accepted accounting principles as in effect from time to time in the United States as consistently applied. "Governmental Authority" means any foreign, federal, national, regional, state, municipal or local government, any political subdivision or any governmental, judicial, public or statutory instrumentality, tribunal, court, arbitral panel, agency, or other regulatory bureau, authority, body or entity having legal jurisdiction or authority over the matter or Person in question. "Hazardous Materials" means (i) any hazardous waste, hazardous substance, pollutant or contaminant as defined by any Environmental Law, or (ii) any toxic substance, waste, chemical, pollutant, contaminant, petroleum (including crude oil or any fraction thereof), petroleum product or hazardous material (including friable asbestos, urea formaldehyde insulation or polychlorinated biphenyls), in either case, in concentrations for which remedial action is required under applicable Environmental Law. "Indebtedness" of any Person means, without duplication: (i) all obligations of such Person for borrowed money (including lines of credit, term loans, mortgage loans, bonds, debentures and notes); (ii) all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations of such Person and all obligations of such Person under any title retention agreement (but excluding accounts payable and other current liabilities arising in the ordinary course of business); and (iii) all obligations of the type referred to in clauses (i) and (ii) of other Persons for the payment of which such Person is responsible or liable, directly or indirectly, as obligor, guarantor or surety. .19 A1070-007 -- 4166969 1 "Indemnified Party" and "Indemnified Parties" have the meanings provided to such terms in Section 9.3(a). "Indemnifying Party" and "Indemnifying Parties" have the meanings provided to such terms in Section 9.3(a). "Intellectual Property" means the following intellectual property rights, both statutory and, if applicable, common law rights: (a) registered and unregistered copyrights, and applications for registration thereof, (b) registered and unregistered trademarks, service marks, trade names, slogans, domain names, logos, trade dress, and applications for registrations thereof, (c) patents, as well as any reissued and reexamined patents and extensions corresponding to the patents, and any patent applications, as well as any related continuation, continuation in part and divisional applications and patents issuing therefrom, (d) trade secrets, (e) know-how, and (f) any license, sub -license or other authorization or right to use any of the foregoing. "Intended Tax Treatment" has the meaning provided to such term in Section 2.4. "Interim Period" has the meaning provided to such term in Section 6.1. "IRS" means the United States Internal Revenue Service. "Knowledge" means actual knowledge (and, except as described below, not imputed or constructive knowledge) of a fact, matter or circumstance of (i) with respect to Seller, those individuals set forth on Schedule 1.1(a)(i), and (ii) with respect to Buyer, those individuals set forth on Schedule 1.1(a)(ii), in each case, including such knowledge as such Persons would reasonably be expected to obtain upon a due and reasonable inquiry by such Persons. For purposes of this definition, with respect to Seller, "due and reasonable inquiry" (a) shall take into account the scope of the individual's duties and includes reasonable inquiry of the employees of Seller and any of its Affiliates who are responsible for the subject matter of the representation and warranty or other matter involved, and (b) shall not require that any individual make any inquiry of individuals who are not employed by Seller or its Affiliates, or check any records not within the possession or control of Seller or the Project Company. "Law" means any applicable law, statute, rule, regulation, ordinance, order, judgment or decree of a Governmental Authority, as amended. "Lien" means any charge, lien (whether arising by operation of Contract, Law, or otherwise), pledge, option, encumbrance, mortgage, deed of trust, right of first refusal, right of first offer, hypothecation or security interest. "Litigation" means any action, claim (in each case, with respect to which written notice has been provided), suit or proceeding (including any arbitration proceeding) by or before any Governmental Authority. "Losses" means all actual liabilities, losses, payments, damages, fines, penalties, judgments, settlements, awards, costs and expenses (including reasonable fees and expenses of counsel, court or arbitration fees, and other costs and expenses of investigation or defense), subject to Section 11.12. 5 A1070-007 -- 4166969 1 "Made Available" means the documents and materials that were posted to (and not removed from) the Data Room accessible by Buyer not later than three (3) Business Days prior to the Effective Date or the Closing Date, as applicable. "Material Adverse Effect" means, with respect to the Project Company, a material adverse fact, event, circumstance, condition, change or effect on the Business, operations, assets or condition (financial or otherwise) of the Project Company, taken as a whole; provided, however, that "Material Adverse Effect" shall exclude any adverse fact, event, circumstance, condition, change or effect that relates to or results or arises from: (i) any change generally affecting the industries or markets in which the Project Company operates or conducts business, including any changes generally affecting the markets for commodities or supplies of the type used or produced by the Project; (ii) war, whether formally declared or not, or any engagement in or escalation of hostilities, whether or not pursuant to the declaration of a national emergency or war, armed hostilities, sabotage and the occurrence of any military or terrorist attack or changes or additional security measures imposed by a Governmental Authority in connection therewith; (iii) changes in economic conditions, financial markets, industry standards, Laws, regulatory policies or GAAP; (iv) any action taken by the Project Company or its Affiliates pursuant to this Agreement or at the request or with the consent of the Buyer; (v) any effect resulting from entering into this Agreement or any announcement or pendency of the transactions contemplated by this Agreement; (vi) any failure to meet any forecasts or projections; (vii) any effects from unusual weather, meteorological and/or geological events, or any epidemic or pandemic (including COVID-19) or any worsening of the foregoing; (viii) any planned outages of the Project and unplanned outages of the Project in the ordinary course of business; (ix) any matters that the Buyer had Knowledge of at the time of execution of this Agreement; or (x) the expiration of any Contract according to its terms; provided, that "Material Adverse Effect" shall exclude any adverse effect described above that has been cured prior to, or will be cured by, or upon the consummation of, the Closing. "Material Contract" has the meaning provided to such term in Section 4.9(a). "MW" means megawatt, a standard term of measurement for bulk electricity. "O&M Agreement" means the Interim Operations and Maintenance Agreement, dated as of February 20, 2018, by and between the Project Company and the O&M Provider, as amended by the Letter Agreement, dated as of June 11, 2020, by and between by and between the Project Company and the O&M Provider. "O&M Provider" means Montrose Water and Sustainability Services, Inc. (successor to ES Engineering Services, LLC). "Offtaker" means Duke Energy Carolinas, LLC. "Operating Fee" has the meaning provided to such term in the O&M Agreement. "Organizational Documents" means any charter, certificate of incorporation, certificate of formation, certificate of limited partnership, articles of association, bylaws, operating agreement, on A1070-007 -- 4166969 1 partnership agreement, limited liability company agreement or similar formation or governing documents and instruments. "Outside Date" has the meaning provided to such term in Section 10.1(e). "Owned Real Property" means any real property owned in fee in connection with the Project as set forth on Schedule 4.6. "PLAY" and "Parties" have the meanings provided to such terms in the preamble to this Agreement. "Permits" means authorizations, approvals, orders, licenses, permits, certificates, registrations or filings issued by, or made with, any Governmental Authority and necessary to conduct the Business as currently conducted; provided, however, that real property matters are not included in the definition of Permits. "Permitted Liens" means (a) Liens for current Taxes, assessments, or other governmental charges levied or assessed or imposed that are: (i) not yet due as of the Closing Date or (ii) being contested in good faith by appropriate proceedings and which are set forth on Schedule 1.1(b), (b) Liens (including construction, materialmen's, warehousemen's, mechanic's, repairmen's, landlord's and other similar Liens) arising by operation of Law in the ordinary course of business securing payments (i) not yet due as of the Closing Date or (ii) being contested in good faith by appropriate proceedings and which are set forth on Schedule 1.1(c), (c) restrictive covenants, easements, rights -of -way, including utility rights -of -way, servitudes and similar burdens and defects, imperfections or irregularities of title that do not, individually or in the aggregate, materially interfere with the use of the property burdened thereby or the conduct of the Business, (d) purchase -money Liens arising in the ordinary course of business, (e) Liens reflected in the Financial Statements, (f) pledges or deposits under workers' compensation legislation, unemployment insurance Laws or similar Laws as set forth in Schedule 1.1(d), (g) Liens set forth on Schedule 1.1(e), (h) Liens created by Buyer or its successors or assigns, (i) the matters set forth in any title insurance policies and commitments provided in the Data Room, 0) the state of facts reflected on any ALTA/AGSM Land Title Surveys provided in the Data Room, (k) Liens or any other restrictions set forth in any Material Contract listed on Schedule 4.9, Permit listed on Schedule 4.10 or Environmental Permit listed on Schedule 4.12(c), (1) Liens in favor of Buyer created pursuant to this Agreement and the transactions contemplated hereby, (m) those restrictions on transfer imposed by applicable securities Laws or the Organizational Documents of a Person; and (n) other imperfections of title or Liens, if any, that do not, individually or in the aggregate, materially detract from the value of, or materially interfere with, the present use and enjoyment of the asset or property subject thereto or affected thereby or the present conduct of the Business. "Permitted Schedule Supplement" has the meaning provided to such term in Section 6.5. "Person" means any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, Governmental Authority or other entity of any kind. 7 A1070-007 -- 4166969 1 "PLL Policy" has the meaning provided to such term in Section 6.11. "PPA" means the Second Amended and Restated Renewable Energy Purchase Agreement, dated as of September 30, 2016, by and between the Project Company and the Offaker, as amended by the First Amendment, dated as of July 25, 2017. "Pre -Closing Covenants" has the meaning provided to such term in Section 9.1. "Pre -Closing Tax Period" means any taxable period that ends on or before the Closing Date and that portion of any Straddle Period that ends on or before the Closing Date. "Project" has the meaning provided to such term in the recitals of this Agreement. "Project Company" has the meaning provided to such term in the recitals of this Agreement. "Project Company pprovals" has the meaning provided to such term in Section 4.2. "Purchase Price" has the meaning provided to such term in Section 2.2. " QFF" has the meaning provided to such term in Section 4.16(a). " F Status" has the meaning provided to such term in Section 4.16(a). "Real Property" means all Owned Real Property and Easements. "Real Property Agreements" has the meaning provided to such term in Section 4.6(b). "Reimbursement Expense" has the meaning provided to such term in the O&M Agreement. "Release" means any release, spill, emission, pumping, pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Materials in the outdoor environment, including the movement of Hazardous Materials through or in the air, soil, surface water, or ground water to the extent it is prohibited by applicable Environmental Law. "Reminder Notice" has the meaning provided to such term in Section 6.1. "Rep Schedule Supplement" has the meaning provided to such term in Section 6.5. "Representatives" means, as to any Person, its officers, directors, stockholders, members, managers, partners (including limited partners and general partners), employees, counsel, accountants, financial advisors, consultants and other representatives of such Person and such Person's Affiliates. "Revenues" has the meaning provided to such term in Section 6.12. M A1070-007 -- 4166969 1 "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "Seller" has the meaning provided to such term in the preamble to this Agreement. "Seller Approvals" has the meaning provided to such term in Section 3.3(a). "Seller Credit Support" has the meaning provided to such term in Section 6.9. "Seller Fundamental Representations" means the representations and warranties made by Seller and York in Article III. "Seller Indemnified Parties" has the meaning provided to such term in Section 9.2(c). "Straddle Period" means any taxable period that begins on or before and ends after the Closing Date. "Survival Period" has the meaning provided to such term in Section 9.1. "Tangible Personal Property" means all machinery, equipment, spare parts, fittings, tools, furniture or furnishings, meter equipment and other tangible personal property owned or leased by the Project Company. "Tax" or "Taxes" means all federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs, duties, capital stock, franchise, margins, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, wealth, net wealth, net worth, alternative or add -on minimum, estimated or any other taxes, any payments in lieu of taxes or other similar payments, charges, fees, fines, levies, imposts, customs or duties of any kind, whatsoever, including any interest, penalty, fines, or addition thereto. "Tax Authority" means any Governmental Authority having jurisdiction over the assessment, determination, collection or imposition of any Tax. "Tax Proceeding" has the meaning provided to such term in Section 7.1. "Tax Return" means any return, declaration, report, claim for refund, property rendition or information return or statement relating to Taxes, including any schedule or attachment thereto and including any amendment thereof. "Terminal Agreements" means any and all Contracts for delivery of feedstock to the Proj ect. "Third -Party Claim" has the meaning provided to such term in Section 9.3(a). "Third Party" means any Person other than (a) the Project Company, (b) any Party, or (c) any Affiliate of the Project Company or any Party. M A1070-007 -- 4166969 1 "Treasury Regulations' means the regulations promulgated by the United States Treasury Department under the Code. "York" has the meaning provided to such term in the preamble to this Agreement. "York Approvals" has the meaning provided to such term in Section 3.3(b). Section 1.2 Rules of Construction (a) All article, section, schedule and exhibit references used in this Agreement are to articles, sections, schedules and exhibits of or to this Agreement unless otherwise specified. The schedules and exhibits attached to this Agreement constitute a part of this Agreement and are incorporated herein for all purposes. All references to "schedules" or "Schedules" herein shall be deemed to be references to the Disclosure Schedules (or portion thereof, if applicable) unless otherwise specified. (b) If a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb). Terms defined in the singular have the corresponding meanings in the plural, and vice versa. Unless the context of this Agreement clearly requires otherwise, words importing the masculine gender shall include the feminine and neutral genders and vice versa. The words "hereof," "hereto," "hereby," "herein," "hereunder" and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular section or article in which such words appear. The word "or" shall have the inclusive meaning represented by the phrase "and/or;" and "shall" and "will" mean "must," and shall have equal force and effect and express an obligation. (c) This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the drafting Party or any Party causing any instrument to be drafted. (d) The captions and headings in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. (e) All references to currency herein shall be to, and all payments required hereunder shall be paid in, Dollars. (f) All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP. (g) If any event hereunder requiring the payment of cash or cash equivalents is scheduled to occur on a day that is not a Business Day, the related payment of cash or cash equivalents shall be deferred until the next Business Day. 10 A1070-007 -- 4166969 1 (h) The use of the word "including" in this Agreement to refer to specific examples shall be construed to mean "including, without limitation" or "including but not limited to" and shall not be construed to mean that the examples given are an exclusive list of the topics covered. (i) References to applicable Laws shall mean a reference to such applicable Laws as the same may be amended, modified, supplemented or restated and be in effect from time to time, including rules and regulations promulgated thereunder. 0) References to any agreement, document or instrument shall mean a reference to such agreement, document or instrument as the same may be amended, modified, supplemented or replaced from time to time. (k) All references to a particular entity shall include a reference to such entity's successors and permitted assigns. Article II PURCHASE AND SALE; PURCHASE PRICE; CLOSING Section 2.1 Purchase and Sale of Acquired Interests. At the Closing, upon the terms and subject to the conditions set forth in this Agreement, Buyer agrees to purchase and acquire from Seller, and Seller agrees to sell, convey, assign, transfer and deliver to Buyer (or to a wholly -owned subsidiary of Buyer, as may be designated by Buyer), all of Seller's rights, title and interests in and to the Acquired Interests, free and clear of all Liens other than Permitted Liens. Section 2.2 Consideration. The consideration aid b Buyer to Seller for the Acquired Interests hereunder shall be an amount equal to Dollars �) (the "Closing Payment" or the "Purchase Price"). Section 2.3 The Closing. (a) The closing of the transactions contemplated by this Agreement (the "Closing") shall take place at the offices of McGuireWoods LLP, Gateway Plaza, 800 East Canal Street, Richmond, Virginia 23219 on the day that is three (3) Business Days after the date on which the last of the conditions set forth in Article VIII below have been satisfied or waived (other than those conditions that by their nature cannot be satisfied until the Closing, but subject to the satisfaction or waiver of such conditions) or at such other time and place as shall be agreed by Buyer and Seller (such date, the "Closing Date"). The Closing shall be deemed to have been consummated at 12:01 a.m. Eastern Time on the Closing Date. (b) At the Closing, Seller shall deliver, or cause to be delivered, to Buyer the following: I A1070-007 -- 4166969 1 (i) an Assignment and Assumption Agreement, duly executed by Seller; (ii) an officer's certificate, dated as of the Closing Date, certifying that the conditions set forth in Sections 8.2(b) and 8.2 c have been satisfied; (iii) a certificate, dated as of the Closing Date, and executed by a duly authorized officer or manager of Seller, certifying that attached thereto is: (A) a true, accurate and complete copy of a certificate issued by the Delaware Secretary of State, dated as of a recent date prior to the Closing Date and certifying that Seller is validly existing and in good standing under the Laws of the State of Delaware; (B) a true, accurate and complete copy of the certificate of formation of Seller, as in effect on the Closing Date, certified by the Delaware Secretary of State as of a recent date prior to the Closing Date; (C) a true, accurate and complete copy of the limited liability company agreement of Seller, as in effect on the Closing Date; and (D) a true, accurate and complete copy of the resolutions of an authorized officer or manager of Seller duly authorizing the execution, delivery and performance by Seller of this Agreement and the transactions contemplated hereby, and that such resolutions are in full force and effect as of the Closing Date; (iv) a certificate, dated as of the Closing Date, and executed by a duly authorized officer or manager of Seller, certifying that attached thereto is: (i) a true, accurate and complete copy of a certificate issued by the North Carolina Secretary of State, dated as of a recent date prior to the Closing Date and certifying that the Project Company is validly existing and in good standing under the Laws of the State of North Carolina; (ii) a true, accurate and complete copy of the certificate of formation of the Project Company, as in effect on the Closing Date, certified by the North Carolina Secretary of State as of a recent date prior to the Closing Date; and (iii) a true, accurate and complete copy of the limited liability company agreement of the Project Company, as in effect on the Closing Date; (v) copies of the Seller Approvals, the York Approvals and the Project Company Approvals; and (vi) a certificate of non -foreign status as contemplated under Section 1.445- 2(b)(2) of the Treasury Regulations, certifying that Seller (or if Seller is a "disregarded entity" within the meaning of Section 1.1445-2(b)(2)(iii) of the Treasury Regulations, the Person treated as the "owner" of Seller (as defined in such Treasury Regulation)) is not a foreign person. (c) At the Closing, Buyer shall deliver, or cause to be delivered, to Seller the following: (i) the Assignment and Assumption Agreement, duly executed by Buyer (or by a wholly -owned subsidiary of Buyer, as may be designated by Buyer); (ii) evidence of payment of the Closing Payment, by wire transfer of immediately available funds, in Dollars, to the bank account designated by Seller (as 12 A1070-007 -- 4166969 1 Seller shall have given notice to Buyer not less than one (1) Business Day prior to the Closing Date); (iii) [Reserved]; (iv) [Reserved]; (v) [Reserved]; (vi) an officer's certificate, dated as of the Closing Date, certifying that the conditions set forth in Sections 8.3(b) and 8.3 c have been satisfied; (vii) a certificate, dated as of the Closing Date, and executed by a duly authorized officer or manager of Buyer, certifying that attached thereto is: (i) a true, accurate and complete copy of a certificate issued by the Delaware Secretary of State, dated as of a recent date prior to the Closing Date and certifying that Buyer is validly existing and in good standing under the Laws of the State of Delaware; (ii) a true, accurate and complete copy of the certificate of formation of Buyer, as in effect on the Closing Date, certified by the Delaware Secretary of State as of a recent date prior to the Closing Date; (iii) a true, accurate and complete copy of the limited liability company agreement of Buyer, as in effect on the Closing Date; and (iv) a true, accurate and complete copy of the resolutions of an authorized officer or manager of Buyer duly authorizing the execution, delivery and performance by Buyer of this Agreement and the transactions contemplated hereby, and that such resolutions are in full force and effect as of the Closing Date; and (viii) copies of the Buyer Approvals. Section 2.4 Intended Tax Treatment. Seller and Buyer hereby agree and acknowledge that, for federal income Tax purposes, the transactions contemplated by this Agreement shall be treated as a taxable sale and purchase of the Acquired Interests (the "Intended Tax Treatment"). Seller and Buyer agree not to report or take any Tax position (on a Tax Return or otherwise) for federal income Tax purposes that is inconsistent with the Intended Tax Treatment, unless otherwise required by applicable Law. Article III REPRESENTATIONS AND WARRANTIES RELATING TO SELLER AND YORK Each of Seller and York (with respect to York, solely to the extent expressly provided in Sections 3.1(b), 3.2 b and 11(12)), severally, but not jointly and severally, hereby represents and warrants to Buyer as of the Effective Date and as of the Closing Date (except, in each case, where such representation and warranty is made as of another specific date or time, in which event Seller or York, as applicable, severally, but not jointly and severally, hereby represents and warrants to Buyer as of such other specific date or time) as follows: 13 A1070-007 -- 4166969 1 Section 3.1 Organization. (a) Seller is duly organized, validly existing and in good standing under the Laws of the State of Delaware. Seller has the requisite limited liability company power and authority to own, lease and operate its assets and to conduct its business as now being conducted. Seller is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the ownership or operation of its assets or the character of its activities is such as to require Seller to be qualified or licensed, except where the failure to be so qualified or licensed would not reasonably be expected to have a material adverse effect on Seller's ability to perform its obligations hereunder or to consummate the transactions contemplated hereby. (b) York is duly organized, validly existing and in good standing under the Laws of the State of Delaware. York has the requisite limited liability company power and authority to own, lease and operate its assets and to conduct its business as now being conducted. York is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the ownership or operation of its assets or the character of its activities is such as to require York to be qualified or licensed, except where the failure to be so qualified or licensed would not reasonably be expected to have a material adverse effect on York's ability to perform its obligations hereunder or to consummate the transactions contemplated hereby. Section 3.2 Authorization; Enforceability. (a) Seller has the requisite limited liability company power and authority to execute and deliver this Agreement, to consummate the transactions contemplated hereby and to perform its obligations hereunder. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized and approved by all requisite action on the part of Seller, and no other authorization on the part of Seller (apart from the required approvals listed in Schedule 3.3 that are provided for in this Agreement) is necessary to authorize this Agreement. This Agreement has been duly and validly executed and delivered by Seller and constitutes its valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar Laws relating to or affecting creditors' rights generally or general principles of equity. (b) York has the requisite limited liability company power and authority to execute and deliver this Agreement, to consummate the transactions contemplated hereby and to perform its obligations hereunder. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized and approved by all requisite action on the part of York, and no other authorization on the part of York (apart from the required approvals listed in Schedule 3.3 that are provided for in this Agreement) is necessary to authorize this Agreement. This Agreement has been duly and validly executed and delivered by York and constitutes its valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar Laws relating to or affecting creditors' rights generally or general principles of equity. 14 A1070-007 -- 4166969 1 Section 3.3 No Conflict. (a) The execution, delivery and performance of this Agreement by Seller and the consummation of the transactions contemplated hereby by Seller, assuming all required filings, consents, approvals, authorizations and notices required to be made, given or obtained by Seller, as set forth on Schedule 3.3 (collectively, the "Seller Approvals") and other notifications provided in the ordinary course of business, have been so made, given or obtained, do not and will not: (i) conflict with or result in a violation of any provision of the Organizational Documents of Seller; (ii) assuming the accuracy of the representations made in this Agreement by Buyer, violate any Law applicable to Seller or require any filing with, consent, approval or authorization of, or notice to, any Governmental Authority, except for any post -consummation filings required by any applicable Governmental Authority set forth in Schedule 3.3(ii), (iii) require any consent under, constitute (with or without notice or lapse of time or both) a default under, result in any breach or violation of, or give any Person any rights of termination, acceleration or cancellation of, any Contract to which Seller is a party or any of its assets, properties or businesses is bound; or (iv) result (with or without notice or lapse of time or both) in the creation of any Lien on the Acquired Interests other than Permitted Liens; except for such violations, terminations, accelerations, cancellations, conflicts, breaches or defaults, or failures to make any such filing, obtain any such consent, approval or authorization, or provide any such notice, which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of Seller to perform its obligations hereunder or to consummate the transactions contemplated hereby. (b) The execution, delivery and performance of this Agreement by York and the consummation of the transactions contemplated hereby by York, assuming all required filings, consents, approvals, authorizations and notices required to be made, given or obtained by York, as set forth on Schedule 3.3 (collectively, the "York Approvals") and other notifications provided in the ordinary course of business, have been so made, given or obtained, do not and will not: (i) conflict with or result in a violation of any provision of the Organizational Documents of York; (ii) assuming the accuracy of the representations made in this Agreement by Buyer, violate any Law applicable to York or require any filing with, consent, approval or authorization of, or notice to, any Governmental 15 A1070-007 -- 4166969 1 Authority, except for any post -consummation filings required by any applicable Governmental Authority set forth in Schedule 3.3(ii); or (iii) require any consent under, constitute (with or without notice or lapse of time or both) a default under, result in any breach or violation of, or give any Person any rights of termination, acceleration or cancellation of, any Contract to which York is a party or any of its assets, properties or businesses is bound; except for such violations, terminations, accelerations, cancellations, conflicts, breaches or defaults, or failures to make any such filing, obtain any such consent, approval or authorization, or provide any such notice, which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of York to perform its obligations hereunder or to consummate the transactions contemplated hereby. Section 3.4 Ownership of Acquired Interests. Seller holds of record and owns beneficially, and holds good and valid title to, the Acquired Interests, free and clear of any Liens other than Permitted Liens. The Acquired Interests have been duly authorized and validly issued and are fully paid and non -assessable. Article IV REPRESENTATIONS AND WARRANTIES RELATING TO THE PROJECT COMPANY Seller hereby represents and warrants to Buyer as of the Effective Date and as of the Closing Date (except, in each case, where such representation or warranty is made as of another specific date or time, in which event Seller hereby represents and warrants to Buyer as of such other specific date or time) as follows: Section 4.1 Organization. The Project Company is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of North Carolina and has the requisite limited liability company power and authority to own, lease and operate its respective assets and to conduct its portion of the Business. The Project Company is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the ownership or operation of its assets or the character of its activities is such as to require the Project Company to be so qualified or licensed, except for those jurisdictions where the failure to be so qualified, licensed or in good standing would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Schedule 4.1 lists each of the Organizational Documents of the Project Company, true and correct copies of which have been Made Available to Buyer. Section 4.2 No Conflict. The execution, delivery and performance of this Agreement by Seller and York and the consummation of the transactions contemplated hereby by Seller and York, assuming all filings, consents, approvals, authorizations and notices required to be made, given or obtained by the 16 A1070-007 -- 4166969 1 Project Company, as set forth on Schedule 3.3 (collectively, the "Project Company Approvals') and other notifications provided in the ordinary course of business, have been so made, given or obtained, do not and will not: (a) conflict with or result in a violation of any provision of the Organizational Documents of the Project Company; (b) assuming the accuracy of the representations made in this Agreement by Buyer, violate in any material respect any Law applicable to the Project Company or require any filing with, consent, approval or authorization of, or notice to, any Governmental Authority, except for any post -consummation filings required by any applicable Governmental Authority set forth in Schedule 3.360; (c) require any consent under, constitute (with or without notice or lapse of time or both) a default under, result in any breach or violation of, or give any Person any rights of termination, acceleration or cancellation of, any Contract to which the Project Company is a party, or any of its assets, properties or businesses, is bound; or (d) result (with or without notice or lapse of time or both) in the creation of any Lien (other than Permitted Liens) under any Contract to which the Project Company, or any of its assets, properties or businesses, is bound; except for such violations, terminations, accelerations, cancellations, conflicts, breaches or defaults, or failures to make any such filing, obtain any such consent, approval or authorization, or provide any such notice described in subsection (b), (c) or (d), above, which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Business, operations, assets or condition (financial or otherwise) of the Project Company or on the ability of Seller to perform its obligations hereunder or to consummate the transactions contemplated hereby. The representation in subsection (a) above, is absolute, and not subject to the immediately preceding materiality qualifier. Section 4.3 Capitalization; Subsidiaries. (a) The Acquired Interests constitute one hundred percent (100%) of the issued and outstanding equity interests in the Project Company, and no equity interests have been reserved by the Project Company for issuance upon exercise of outstanding options, warrants or other similar rights. The Project Company does not have any subsidiaries or own any equity interests in any other Person. (b) There are no outstanding obligations of the Project Company to repurchase, redeem or otherwise acquire any of its equity interests. Except as identified in Schedule 4.3(b), (i) there are no options, warrants, convertible securities, unit appreciation, phantom unit, profit participation or other similar rights, agreements, arrangements or commitments relating to the equity interests (or other securities) of the Project Company that obligate the Project Company to issue or sell any equity interests (or other securities) of the Project Company; and (ii) there are no voting trusts, voting agreements or similar agreements or understandings with respect to its equity interests. 17 A1070-007 -- 4166969 1 Section 4.4 Financial Statements, No Undisclosed Liabilities. Seller has Made Available to Buyer an unaudited balance sheet, income statement, statement of cash flows and statement of changes in equity of the Project Company as of the Financial Statement Date (the "Financial Statements"). The Financial Statements fairly present in all material respects the financial condition of the Project Company as of the Financial Statement Date and the results of operations of the Project Company for the periods indicated therein. Except for (a) current liabilities, (b) liabilities which will not be applicable to the Project Company after the Closing, (c) liabilities incurred in the ordinary course of business, consistent with past practice, since the Financial Statement Date, (d) liabilities that would not reasonably be expected to have a Material Adverse Effect and (e) liabilities disclosed on Schedule 4.4, the Project Company has no liabilities that would be required to be reflected on its financial statements as of the Effective Date or the Closing Date, as applicable, prepared in accordance with GAAP which are not reflected or reserved against in the Financial Statements. The Project Company does not have any outstanding Indebtedness. Section 4.5 Absence of Certain Changes Except as set forth on Schedule 4.5, from the Financial Statement Date to the Effective Date, (i) the Project Company has operated, in all material respects, in the ordinary course of business, consistent with past practice, and (ii) to the Knowledge of Seller, there has not been any Material Adverse Effect. Section 4.6 Real Property. (a) Part I of Schedule 4.6 sets forth, as of the Effective Date, a description of all Owned Real Property and Easements. Except as set forth on Part I of Schedule 4.6, (i) to the Knowledge of Seller, the Project Company owns good and marketable title to its Owned Real Property, free and clear of Liens, except Permitted Liens, (ii) the Project Company has not leased or otherwise granted any Person the right to use or occupy the Owned Real Property or any material portion thereof that is still in effect, and (iii) the Project Company has not granted any outstanding options, rights of first refusal, rights of first offer, rights of reverter or other third -party rights to purchase any of the Owned Real Property or any interest therein. (b) Part II of Schedule 4.6 sets forth, as of the Effective Date, a complete and correct list of all material agreements for the possession of the Real Property used by the Project Company in the conduct of the Business (the "Real PropertyAgreements"). Seller has Made Available to Buyer true and correct copies of all Real Property Agreements. Except as set forth on Part II of Schedule 4.6: (i) each Real Property Agreement constitutes a valid, binding and enforceable obligation of the Project Company, and to the Knowledge of Seller, each other party thereto, subject to applicable bankruptcy, insolvency, moratorium or other similar Laws relating to or affecting creditors' rights generally or general principles of equity, (ii) the Project Company is not in material default or breach under any Real Property Agreement and, to the Knowledge of Seller, no other party thereto is in material default or breach under any Real Property Agreement and (iii) there are no outstanding claims affecting any such Real Property I: A1070-007 -- 4166969 1 Agreement made by the Project Company or of which the Project Company has received written notice. Section 4.7 Litigation. Except as set forth on Schedule 4.7, (a) there is no Litigation pending or, to the Knowledge of Seller, threatened that seeks to prevent the consummation of the transactions contemplated hereby or that would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of Seller or York to perform their respective obligations hereunder or to consummate the transaction contemplated hereby, (b) there is no Litigation pending or, to the Knowledge of Seller, threatened by any Person against the Project Company or any assets or properties thereof, and (c) there is no injunction, order or judgment issued by any Governmental Authority pending, or to the Knowledge of Seller, threatened, against the Project Company. Section 4.8 Taxes. Except as set forth on Schedule 4.8, (a) all Tax Returns required to have been filed by the Project Company have been timely filed, all such Tax Returns have been prepared in material compliance with all Laws and are true, correct and complete in all material respects, (b) all Taxes required to have been paid by the Project Company (whether or not shown to be due on such Tax Returns) have been timely paid, (c) there are no Liens on any of the assets of the Project Company that have arisen as a result of any failure to pay any Taxes, other than any Permitted Liens described in Schedule 4.8, (d) the Project Company has withheld and paid all Taxes required to have been withheld and paid by it in connection with amounts paid or owing to any employee, independent contractor, shareholder, member, partner or creditor of the Project Company, (e) there is no audit or other proceeding with any Tax Authority relating to any Tax obligation or Tax Return of the Project Company, and to the Knowledge of Seller, there is no audit or other proceeding threatened in writing by any Tax Authority against the Project Company relating to the Project Company's Tax obligations or Tax Returns, (f) there are no outstanding agreements or waivers providing for an extension of time with respect to the filing of any Tax Return of the Project Company and the Project Company has not granted any waiver of any statute of limitations with respect to, or any extension of a period for the assessment of, any Tax, imposed on the Project Company, which waiver or extension is outstanding, (g) the Project Company is classified for federal and applicable state and local income Tax purposes as an association taxable as a corporation, (h) no power of attorney that is currently in force has been granted with respect to any matter relating to Taxes of the Project Company, (i) no claim has ever been made in writing by a Tax Authority to the Project Company in a jurisdiction where the Project Company does not file Tax Returns that the Project Company is or may be subject to taxation by that jurisdiction or that the Project Company's assets are or may be subject to such taxation, 0) the Project Company does not have any liability for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or comparable provision of state, local or foreign Law), as a transferee, by Contract or otherwise (excluding Contracts the principal purpose of which is not related to Taxes), (k) no Federal Tax Credit or any similar credit or grant under state applicable Law, has been or will be claimed by Seller or any of its Affiliates or direct or indirect partners, shareholders or members with respect to the Project or the Project assets, nor will they report any material Project assets as having been "placed in service" prior to the Closing Date for the purposes of Sections 48, 167, or 168 of the Code, (1) no asset of the Project Company (i) is 19 A1070-007 -- 4166969 1 tax-exempt bond financed property within the meaning of Section 168(g)(5) of the Code or subject to an election under Section 168(g)(7) of the Code, (ii) is treated as leased to, or used by, a tax-exempt entity, a Governmental Authority or a foreign Person (within the meaning of Sections 50(b)(3), 50(b)(4) and 168(h)(2) of the Code), and (iii) is described or otherwise includible in the categories of property listed in Section 50(b) of the Code, and (m) Section 168(g)(1)(D) of the Code does not apply to any assets of the Project Company, and none of the property comprising a part of the Project is imported property of the kind described in Section 168(g)(6) of the Code. Section 4.9 Material Contracts (a) Schedule 4.9 contains a true and correct list of the following types of Contracts to which the Project Company is a party (each a "Material Contract"): (i) any Contract which provides for aggregate future payments by the Project Company of more than _ in any one year, which is not terminable upon ninety (90) days or less notice without the incurrence of a penalty; (ii) any Contract which provides for the sale, purchase or exchange of electric power in any form (including energy, capacity or ancillary services); (iii) any Contract which provides for the supply and/or delivery of organic waste to the Project with a term of twelve (12) months or more and with annual future payments of more than _; (iv) any electric interconnection Contract; (v) any Contract for the transmission of electric power; (vi an operation and maintenance Contract that provides for payments in excess of individually or_ in the aggregate with other such Contracts; (vii) any outstanding futures, swap, hedge, collar, put, call, floor, cap, option or other Contract intended to benefit from or reduce or eliminate the risk of fluctuations in interest rates or the price of commodities, including electric power, in any form, including energy, capacity or any ancillary services; (viii) any Contract between the Project Company, on the one hand, and Seller or any Affiliate of Seller, on the other hand; (ix) any Contract that limits the freedom of the Project Company to compete in any line of business or in any geographical area; and (x) any Contract which provides for the sale or other disposition after the Effective Date and other than in the ordinary course of business, of any of the assets of the Project Company, other than in each case Contracts entered into in the ordinary course of business relating to assets with a value of less than _ individually or in the aggregate. 20 A1070-007 -- 4166969 1 (b) Seller has Made Available to Buyer true and correct copies of all Material Contracts. (c) Except as set forth on Schedule 4.9, (i) each Material Contract constitutes a valid, binding and enforceable obligation of the Project Company and, to the Knowledge of Seller, each other party thereto, subject to applicable bankruptcy, insolvency, moratorium or other similar Laws relating to or affecting creditors' rights generally or general principles of equity, (ii) neither the Project Company nor, to the Knowledge of Seller, any other signatory is in material default or breach under any such Material Contract, and (iii) to the Knowledge of Seller, no event has occurred with regard to the Project Company or any other party thereto, that with the passage of time or receipt of notice or both, would constitute a material default or material breach under any Material Contract. Section 4.10 Permits, Compliance with Laws. Schedule 4.10 sets forth all material Permits (other than Environmental Permits) held by the Project Company that are required for the ownership and operation of the Business as currently conducted. Except as set forth on Schedule 4.10, (a) such Permits constitute all of the material Permits (other than the Environmental Permits) required for the ownership and operation of the Business as currently conducted, (b) all such Permits are in full force and effect, and no action, claim or proceeding is pending, nor to the Knowledge of Seller, threatened by any Governmental Authority, to suspend, revoke, or terminate any such Permit or declare any such Permit invalid, (c) the Project Company is in material compliance with all such Permits and is otherwise in material compliance with all applicable Laws, (d) the Project Company has not received any written notification from any Governmental Authority alleging that it is in material violation of any of such Permits or Laws which remains outstanding and unremedied (and to the extent any such matters are reflected in Schedule 4.10, all correspondence relating to such claim has been Made Available to Buyer), and (e) Seller has Made Available to Buyer true and correct copies of all Permits set forth on Schedule 4.10. Section 4.11 Employee Matters. (a) The Project Company has never had, does not now have nor will have, on the Closing Date, any employees. (b) The Project Company does not sponsor, maintain, contribute to or have any obligation to contribute to, and since the date of its creation the Project Company has never sponsored, maintained, contributed to nor had any obligation to contribute to, any Employee Benefit Plan. Section 4.12 Environmental Matters. (a) Seller has Made Available to Buyer true and correct copies of the environmental reports relating to the Release of Hazardous Materials at the Real Property identified on Schedule 4.12(a) (the "Environmental Reports'). 21 A1070-007 -- 4166969 1 (b) Except as set forth on Schedule 4.12(b) (i) The Project Company and the Project possess all material Permits required under applicable Environmental Laws to operate the Business as currently operated (collectively, "Environmental Permits") and are in compliance in all material respects with the Environmental Permits; and there are not any unresolved legal, administrative, regulatory, or other Governmental Authority proceedings pending, or, to the Knowledge of Seller, threatened in writing against the Project Company or its Affiliates for violations of any Environmental Laws or the Environmental Permits at the Project; (ii) The Project Company is not subject to any pending or, to the Knowledge of Seller, threatened, Environmental Claim (x) against the Project Company directly, or (y) relating to the Project or the Real Property or the operation of the Business, in each case, for which such Environmental Claim remains unresolved; (iii) No Release of Hazardous Materials has occurred or to the Knowledge of Seller, is threatened at, on, under or from any of the Real Property or as a result of activities of the Project Company, that has resulted in a material liability under Environmental Law, or would reasonably be expected to result in a material liability under Environmental Law; and (iv) The Project Company is not subject to any unresolved settlement agreements, consent orders, fines, penalties, damages, judgments and decrees in connection with any alleged liability arising under or violation of Environmental Law. (c) Schedule 4.12(c) sets forth all Environmental Permits, and Seller has Made Available to Buyer true and correct copies of all such Environmental Permits. Except as set forth on Schedule 4.12(c), all Environmental Permits held by the Project Company are in full force and effect. (d) Notwithstanding anything herein, the representations and warranties of Seller in this Section 4.12 are the sole and exclusive representations and warranties of Seller with respect to environmental matters, Environmental Laws, Environmental Claims, Environmental Permits and Hazardous Materials. Section 4.13 Insurance Schedule 4.13 sets forth a list of all of the policies of insurance carried as of the Effective Date by or on behalf of the Project Company that directly insure the Project Company, the Project, the Business or any material assets of the Project Company (collectively, the "Company Policies"). To the Knowledge of Seller, the Company Policies comply with all contractual obligations of the Project Company. All premiums due and payable under the Company Policies as of the Effective Date, and as of the Closing Date, have been or will be paid prior to the Closing in a timely manner, and the holders of such policies are otherwise in material compliance with the terms and conditions of each of the Company Policies. No notice of cancellation or non -renewal of any Company Policy has been received by the holders of such policies and there is no outstanding claim under any 22 A1070-007 -- 4166969 1 Company Policy as to which coverage has been denied or disputed in writing by the underwriters or issuers thereof. Section 4.14 Business. The Business is the only business that is, or, except for the construction of the Project, has ever been, carried on by the Project Company. Section 4.15 Bank Accounts. Schedule 4.15 sets forth a true and correct list of the names and locations of banks, trust companies and other financial institutions at which the Project Company maintains bank accounts or safe deposit boxes and the names of all Persons authorized to draw thereon, make withdrawals therefrom or have access thereto. Section 4.16 Re ug latory Status. (a) The Project is a "qualifying small power production facility" ("-F') as defined under 16 U.S.C. § 796(17)(C) and FERC's regulations at 18 C.F.R. § 292.203 (such status as a QF, "QF Status"). The Project is eligible for the exemptions from regulation set forth in 18 C.F.R. §§ 292.601(c), 292.602(b) and 292.602(c). (b) The QF Status of the Project has been validly obtained through self - certification pursuant to 18 C.F.R. § 292.207. Schedule 4.16(b) provides the FERC docket number with respect to self -certification of the Project, and all representations and information regarding QF Status made in the applicable FERC docket was and remains true, correct and complete in all material respects. (c) No prior authorization by FERC is required for Seller to perform the transactions contemplated hereby. (d) The Project Company (i) is not subject to regulation by any Governmental Authority as a "public utility," "electric utility" or "electric power supplier," and (ii) is not a holding company or otherwise subject to or not exempt from regulation under the federal Public Utility Holding Company Act of 2005 (as amended), solely by virtue of its ownership or operation of the Project. Section 4.17 Intellectual PTope Except as set forth on Schedule 4.17, to the Knowledge of Seller, the Project Company owns all right, title and interest in and to, or has valid licenses to use in the manner in which currently being used, any Intellectual Property that is material to the Business, in each case free and clear of all Liens except Permitted Liens. The Project Company has not received any written claim, notice or correspondence alleging that the Project Company or the Business is infringing or violating, or has infringed, violated or misappropriated, any Intellectual Property used in or material to the Business, or challenging the Project Company's ownership or use of, or rights to, any Intellectual Property used in or material to the Business, in each case that remains unresolved. To the Knowledge of Seller, neither the 23 A1070-007 -- 4166969 1 Project Company nor the Business is currently infringing or violating or misappropriating any material Intellectual Property of any Third Party and, to the Knowledge of Seller, no Third Party is infringing or violating, or has infringed, violated or misappropriated, any material Intellectual Property of the Project Company. Section 4.18 Title to Tangible Personal Property The Project Company has good and marketable title to all material Tangible Personal Property that it owns and has a valid leasehold interest in all material Tangible Personal Property that it leases. Section 4.19 Bankruptcy The Project Company has not filed any voluntary petition in bankruptcy or been adjudicated as bankrupt or insolvent, filed any petition or answer seeking any reorganization, liquidation, dissolution or similar relief under any federal bankruptcy act, insolvency, or other debtor relief Law, or sought or consented to or acquiesced in the appointment of any trustee, receiver, conservator or liquidator of all or any substantial part of its properties, nor has any such proceeding been commenced by any other Person against the Project Company. No court of competent jurisdiction has entered an order, judgment or decree approving a petition filed against the Project Company seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any federal bankruptcy act, insolvency or other debtor relief Law, and no other liquidator has been appointed for the Project Company or of all or any substantial part of its properties. Section 4.20 Brokers' Fees. Except as set forth on Schedule 4.20, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders' fee or other commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Seller or any of its Affiliates. Section 4.21 No Other Representations and Warranties. Except for the representations and warranties of Seller and York contained in this Agreement (including the related portions of the Disclosure Schedules), neither Seller nor York has made or makes any other express or implied representation or warranty, either written or oral, on behalf of Seller, York or the Project Company or otherwise, including any representation or warranty as to the accuracy or completeness of any information regarding the Project Company furnished or made available to Buyer and its Representatives (including any information, documents or material Made Available or otherwise provided to Buyer in the Data Room, management presentations or in any other form in expectation of the transactions contemplated hereby) or as to the future revenue, profitability or success of the Project Company, or any representation or warranty arising from statute or otherwise in Law. 24 A1070-007 -- 4166969 1 Article V REPRESENTATIONS AND WARRANTIES RELATING TO BUYER Buyer hereby represents and warrants to Seller and York as of the Effective Date and as of the Closing Date (except, in each case, where such representation and warranty is made as of another specific date or time, in which event Buyer hereby represents and warrants to Seller and York as of such other specific date or time) as follows: Section 5.1 Organization. Buyer is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware and has the requisite limited liability company power and authority to own, lease and operate its assets and to conduct its business as now being conducted. Buyer is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the ownership or operation of its assets or the character of its activities is such as to require Buyer to be qualified or licensed, except where the failure to be so qualified or licensed would not reasonably be expected to have a material adverse effect on Buyer's ability to perform its obligations hereunder or to consummate the transactions contemplated hereby. Section 5.2 Authorization; Enforceability. Buyer has the requisite limited liability company power and authority to execute and deliver this Agreement, to consummate the transactions contemplated hereby and to perform its obligations hereunder. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized and approved by all requisite action on the part of Buyer, and no other authorization on the part of Buyer is necessary to authorize this Agreement. This Agreement has been duly and validly executed and delivered by Buyer and constitutes its valid and binding obligation, enforceable against Buyer in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar Laws relating to or affecting creditors' rights generally or general principles of equity. Section 5.3 No Conflict. The execution, delivery and performance of this Agreement by Buyer and the consummation of the transactions contemplated hereby by Buyer, assuming all required filings, consents, approvals, authorizations and notices set forth on Schedule 5.3 (collectively, the `Bum Approvals") required to be made, given or obtained by it have been so made, given or obtained, do not and will not: (a) conflict with or result in a violation of any provision of the Organizational Documents of Buyer; (b) violate any Law applicable to Buyer or require any filing with, consent, approval or authorization of, or notice to, any Governmental Authority; or (c) require any consent under, constitute (with or without notice or lapse of time or both) a default under, result in any breach or violation of, or give any Person any 25 A1070-007 -- 4166969 1 rights of termination, acceleration or cancellation of, any Contract to which Buyer is a party or any of its assets, properties or businesses is bound; except for such violations, defaults, terminations, accelerations, cancellations, conflicts, breaches or defaults, or failures to make any such filing, obtain any such consent, approval or authorization, or provide any such notice, which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of Buyer to perform its obligations hereunder or to consummate the transactions contemplated hereby. Section 5.4 Financial Ability; Solvency. At Closing, Buyer will have sufficient immediately available funds to pay in cash the amount of the Purchase Price and to consummate all of the transactions contemplated to occur at Closing. Section 5.5 Investment Representation. (a) Buyer is acquiring the Acquired Interests for its own account as an investment and not with a view towards any unlawful public distribution thereof, including to sell, transfer or otherwise distribute all or any part thereof to any other Person in any transaction that would constitute a "distribution" within the meaning of the Securities Act. Buyer acknowledges that it can bear the economic risk of its investment in the Acquired Interests, and is capable of evaluating the merits and risks of an investment in all of the Acquired Interests. Buyer understands and acknowledges that neither the offer nor sale of the Acquired Interests has or will have been registered pursuant to the Securities Act or any applicable state securities Laws or any other applicable securities Laws, that all of the Acquired Interests will be characterized as "restricted securities" under federal securities Laws and that, under such Laws and applicable regulations, none of the Acquired Interests can be sold or otherwise disposed of without registration under the Securities Act or an exemption thereunder. (b) Buyer acknowledges that (i) it has been afforded access to and the opportunity to inspect the Project and other due diligence items made available by Seller with respect to the Project or the Project Company, (ii) it has received all materials that it deems necessary to make its determination whether to proceed with the transactions contemplated hereby, and (iii) it is not relying on any statements, representations or warranties made by Seller, York or any of their respective Affiliates, whether in writing or orally, other than the express representations and warranties of Seller and York expressly set forth in Articles III and IV of this Agreement. Section 5.6 Broker's Fees. No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders' fee or other commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Buyer or any of its Affiliates. 26 A1070-007 -- 4166969 1 Section 5.7 Litigation. There is no Litigation pending or, to the Knowledge of Buyer, threatened, that seeks to prevent the consummation of the transactions contemplated hereby or that would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of Buyer to perform its obligations hereunder or to consummate the transactions contemplated hereby. Section 5.8 Re ug latory Status. Buyer is not a "holding company" within the meaning of the Public Utility Holding Company Act of 2005 or, if Buyer is such a holding company, Buyer is eligible for and holds the authorizations of FERC under the FPA conferred by either or both of 18 C.F.R. §§ 33.1(c)(1) and 33.1(c)(8). Buyer is not itself a "public utility," as that term is defined under the FPA. Section 5.9 Transfer Compliance Matters. Neither Buyer nor any of its Affiliates is listed on (a) the Denied Persons list maintained by the United States Department of Commerce, (b) the Entity List maintained by the United States Department of Commerce, (c) the Specially Designated Nationals and Blocked Persons list maintained by the United States Department of Treasury, (d) the State Department List of Terrorists maintained by the United States Department of State, or (e) the List of Debarred Parties maintained by the United States Department of State. Section 5.10 United States Person. Buyer (a) is a "United States Person" as defined in Section 7701(a)(30) of the Code and is not subject to withholding under Section 1446 of the Code, (b) is not a "tax-exempt entity" or a "tax-exempt controlled entity" within the meaning of Section 168(h) of the Code. Section 5.11 No Other Representations and Warranties Except for the representations and warranties of Buyer contained in this Agreement, Buyer has not made and Buyer does not make any other express or implied representation or warranty, either written or oral, including any representation or warranty as to the accuracy or completeness of any information regarding Buyer furnished or made available to Seller, York and their Representatives, or any representation or warranty arising from statute or otherwise in Law. Article VI COVENANTS AND ACKNOWLEDGEMENTS Section 6.1 Conduct of Business (Pre -Closing). During the period from the Effective Date and continuing until the earlier of termination of this Agreement pursuant to Section 10.1 or the Closing (the "Interim Period"), Seller shall, and shall cause the Project Company to, operate the Business in the ordinary course, consistent with past 27 A1070-007 -- 4166969 1 practice (which, for the avoidance of doubt, shall include the operation and maintenance of the Project in the ordinary course consistent with the O&M Provider's past practice under the O&M Agreement). Notwithstanding the first sentence of this Section 6.1, during the Interim Period, except (i) as may be necessary to comply with requirements under any Contracts binding on the Project Company, (ii) as may be required in case of any emergency, (iii) as may be required to operate the Project in accordance with any Permit or Environmental Permit relating to the Project or applicable Law, (iv) as otherwise required or permitted by this Agreement, or (v) as set forth on Schedule 6.1, without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, Seller shall not, and shall cause its Affiliates not to, permit the Project Company to: (a) amend its Organizational Documents; (b) liquidate, dissolve, recapitalize or otherwise wind up the Project Company or any substantial portion of the Business; (c) split, combine or otherwise change its equity interests or redeem any of its equity interests; (d) issue or sell any of its equity interests or any securities or obligations convertible into or exchangeable for, or give any Person any right to acquire, any of its equity interests; (e) change its accounting methods, policies or practices, except as required by GAAP, or change its fiscal year; (f) acquire any material assets, except in the ordinary course of business or sell, assign, transfer, lease or otherwise dispose of any material assets, except in the ordinary course of business (including, but not limited to, ordinary course sales of capacity, energy, ancillary services and Environmental Attributes); (g) amend, terminate or assign any Material Contract other than in the ordinary course of business; (h) enter into any Material Contract other than those executed in the ordinary course of business; (i) permit or allow the creation or imposition of any Lien (other than Permitted Liens) on any of its material assets or properties; 0) incur any Indebtedness other than (i) Indebtedness incurred in the ordinary course of business, or (ii) Indebtedness which will be paid in full and discharged prior to the Closing; (k) merge or consolidate with, or purchase substantially all of the assets or businesses of, or equity interests in, or make an investment in, any Person; 9.9 A1070-007 -- 4166969 1 (1) issue or sell any notes, bonds or other debt securities of the Project Company, or any option, warrant or right to acquire the same; (m) enter into any agreement with Mecklenburg County restricting the use of the Real Property or consent to any change in zoning or general plan designation which restricts the use of the Real Property; or (n) enter into a Contract to do any of the things described in clauses (a) through (m) above. With respect to the consent requirement of Section 6.1 above, if Buyer fails to respond within five (5) Business Days after any written request by Seller, and, in the event Buyer fails to respond within such five (5) day period, the passage of an additional three (3) Business Days following Buyer's receipt of a notice (a "Reminder Notice") from Seller providing an additional copy of the written request, accompanied by a statement clearly and conspicuously stating that Buyer's consent will be deemed given if no response is received within three (3) days following Buyer's receipt of the Reminder Notice, Buyer's consent shall be deemed provided. Section 6.2 Access. (a) During the Interim Period, Seller shall afford (and shall cause its Affiliates and the Project Company to afford) to Buyer and its authorized Representatives reasonable access, during normal business hours, to the property (including the Project), the books and records of Seller and the Project Company with respect to the Business, and to the appropriate officers and employees of Seller and its Affiliates, in each case, as reasonably requested by Buyer, provided, that such access shall only be upon reasonable advance written notice to Seller and shall not unreasonably disrupt personnel or operations of the Business, shall be subject to compliance with all Laws and all operational and safety protocols at the Project, shall be at Buyer's sole cost and expense and shall not include any invasive sampling of any environmental media without the written consent of Seller; provided, further, that Seller shall have the right to have a Representative (or Representatives) present with Buyer and its Representatives at all times that Buyer and its Representatives are on any such properties. Notwithstanding anything herein to the contrary, neither Seller, nor the Project Company, nor any of their respective Affiliates or Representatives shall be required to (x) take any action that would constitute a waiver of the attorney -client privilege, (y) furnish any information that any such Person is under a legal or contractual obligation not to disclose or (z) furnish any information that relates solely to the transactions contemplated hereby, including any bids or offers received by Seller or any Affiliates of Seller, for the sale of the Acquired Interests. (b) Except to the extent arising out of (i) the breach by Seller of any contractual obligation to a third party or (ii) the negligence or willful misconduct of Seller, Buyer shall indemnify, defend and hold harmless the Seller Indemnified Parties, from and against any Losses incurred by such Seller Indemnified Parties, as a result of or relating to, the activities of Buyer or its Representatives under this Section 6.2. 29 A1070-007 -- 4166969 1 Section 6.3 Confidentiality; Public Announcements Buyer acknowledges that all information, documents and other materials provided or Made Available to it in connection with this Agreement and the consummation of the transactions contemplated hereby is Confidential Information (as defined in the Confidentiality Agreement) subject to the terms of the Confidentiality Agreement, the terms of which are incorporated herein by reference. The Confidentiality Agreement shall continue in full force and effect in accordance with its terms until the Closing, when it shall be automatically terminated. Section 6.4 Third-PgM Approvals. During the Interim Period, each of Buyer, Seller and York shall, and shall each cause their respective Affiliates to, use commercially reasonable efforts to obtain all of the Buyer Approvals, Project Company Approvals, Seller Approvals and York Approvals, and maintain such approvals in full force and effect once obtained. Each Party shall cooperate with the reasonable requests of any other Party in seeking to obtain as promptly as practicable all such Buyer Approvals, Project Company Approvals, Seller Approvals or York Approvals. None of Seller, York nor Buyer shall take, or cause to be taken, any action that it is aware or should reasonably be aware would have the effect of delaying, impairing or impeding the receipt of any such Buyer Approvals, Project Company Approvals, Seller Approvals or York Approvals. Section 6.5 Update Information. From time to time prior to the Closing, either Seller or York may supplement or amend the Disclosure Schedules hereto with respect to (a) any matter that arose after the Effective Date, which, if existing on the Effective Date, should have been set forth on the Disclosure Schedules, including to remedy any inaccuracy of any representation or warranty of Seller or York (each, a "Rep Schedule Supplement") or (b) any information or documents contemplated, permitted or required by this Agreement which is approved by Buyer pursuant to Section 6.1 (a "Permitted Schedule Supplement"). In the event that such event, development or occurrence which is the subject of any Rep Schedule Supplement, individually or in the aggregate with all events, developments and occurrences that were the subject of any prior Rep Schedule Supplements, would prevent the condition precedent set forth in Section 8.2(b) from being satisfied, then Buyer shall have the right to terminate this Agreement by delivering written notice thereof to Seller and York within five (5) Business Days after delivery of such Rep Schedule Supplement; provided, that if Buyer has the right to, but does not timely elect to terminate this Agreement pursuant to this Section 6.5, then (i) Buyer shall be deemed to have irrevocably waived any right to terminate this Agreement with respect to the matters set forth in such Rep Schedule Supplements, (ii) such Rep Schedule Supplements shall be deemed to be incorporated into and to supplement, amend and modify the Disclosure Schedules, and (iii) Buyer shall have irrevocably waived its rights to indemnification under Section 9.2 with respect to the matters set forth in such Rep Schedule Supplements; provided, further, that any event, development or occurrence which is the subject of any Permitted Schedule Supplement shall (i) not give Buyer the right to terminate this Agreement, (ii) be deemed to cure any conditions precedent, and (iii) be deemed to cure any breach of this Agreement. 9TI] A1070-007 -- 4166969 1 Section 6.6 Insurance. During the Interim Period, Seller shall cause the Project Company to maintain in full force and effect the insurance policies described on Schedule 4.13. From and after the Closing, neither Seller nor any Affiliate of Seller shall be required to maintain or provide any insurance coverage with respect to the Project Company, the Project, the Business or any assets of the Project Company. Section 6.7 Further Assurances. Subject to the terms and conditions of this Agreement, at any time or from time to time after the Closing, at the request of Buyer or Seller, and without further consideration, each other Party shall execute and deliver to the requesting Party such other instruments of sale, transfer, conveyance, assignment and confirmation and provide such materials and information and take such other actions and execute and deliver such other documents as the requesting Party may reasonably request in order to consummate and to make effective the transactions contemplated by this Agreement. Section 6.8 Exclusivity During the Interim Period, Seller shall not, and shall cause its Representatives and Affiliates not to, directly or indirectly, enter into, solicit, initiate or continue any discussions or negotiations with, or encourage or respond to any inquiries or proposals by, or participate in any negotiations with, or provide any information to, or otherwise cooperate in any other way with, any Person, other than Buyer and its Affiliates and Representatives, concerning any sale of all or a portion of the Acquired Interests or the Business, or any merger, consolidation, amalgamation, liquidation, dissolution or similar transaction involving the Project Company. Section 6.9 Seller Credit Support Following the execution hereof, Buyer shall meet and confer with each Contract counterparty who is party to a Contract pursuant to which Seller, or an Affiliate of Seller, has provided credit support, as set forth on Schedule 6.9 (the "Seller Credit Support') in order to propose replacement credit support to each applicable Contract counterparty. If such proposed replacement credit support is deemed unacceptable or otherwise deficient by the applicable Contract counterparty, Buyer shall work with the applicable Contract counterparty to promptly propose alternative replacement credit support to such Contract counterparty no later than the third (3rd) Business Day following Buyer's receipt of notice that such initially proposed replacement credit support has been deemed unacceptable or otherwise deficient, so as to be able to actually provide replacement credit support to each applicable Contract counterparty within two (2) Business Days following the Closing. Within two (2) Business Days following Closing, Buyer must provide replacement credit support to each applicable Contract counterparty that satisfies the requirements of each Contract with respect to which Seller Credit Support has been provided. Following the Closing, Buyer shall cause all Seller Credit Support to be returned to Seller or its applicable Affiliate thereof as promptly as may be reasonably accomplished using commercially reasonable efforts. If Buyer or one of its Affiliates receives any Seller Credit Support it will return such Seller Credit Support to Seller or its applicable Affiliate within two 31 A1070-007 -- 4166969 1 (2) Business Days after Buyer's or its Affiliate's receipt thereof. Following the Closing, Buyer shall indemnify Seller and its Affiliates for any Losses arising in connection with any drawing on any Seller Credit Support that occurs on or after the Closing to the extent, but only to the extent, that such drawing is based on an alleged breach or other failure of the obligation which such Seller Credit Support secures following the Closing. Section 6.10 Reimbursement of O&M Expenses Following the Closing, Seller shall pay the O&M Provider directly, in accordance with the terms and conditions set forth in the O&M Agreement, an amount equal to all Operating Fees and Reimbursement Expenses (or portions thereof) billed to the Project Company pursuant to the O&M Agreement solely to the extent such Operating Fees and Reimbursement Expenses (or portions thereof) relate to periods prior to the Closing; provided, that, prior to Seller's payment of such costs and expenses, Buyer shall have delivered to Seller supporting documentation reasonably satisfactory to Seller evidencing such Operating Fees and Reimbursement Expenses. Seller shall be entitled to any refunds (including any interest received thereon) received in respect of any such Operating Fees or Reimbursement Expenses. Section 6.11 Payment of costs resulting from Environmental Issues Seller shall pay directly to the applicable Governmental Authority all fines and penalties which arise out of those certain items set forth on Schedule 4.12(b) (the "Environmental Issues") and shall bear all costs of the Project Company arising out of the Environmental Issues which are incurred pursuant to any requirement of a Governmental Authority, including but not limited to restoration or remediation (such fines, penalties and costs, the "Environmental Issues Costs"). Prior to the Closing, Seller shall cause the Project Company to (i) notify Beazley USA Services, Inc. pursuant to Policy No. W2ECCB210101 issued May 6, 2021 by Beazley USA Services, Inc. to the Project Company (the "PLL Policy") of the August 20 Incident and August 30 Incident (each, as defined in the Disclosure Schedules), and (ii) cause the PLL Policy to remain in force through the Interim Period. At Closing, Buyer shall reimburse Seller pro rata for the portion of the premium for the PLL Policy paid by Seller attributable to post -Closing periods. The Parties agree that no such disclosure or notification of, or tender of defense with respect to, the August 20 Incident or August 30 Incident shall be construed as an admission or indication of any responsibility or fault of Seller or the Project Company for either such incident. To the extent that any Environmental Issues are unresolved as of the Closing Date, Seller shall pay all Environmental Issues Costs within fifteen (15) days following final determination of the same unless Seller and the applicable Governmental Authority agree upon different payment terms; provided, that, prior to Seller's payment of Environmental Issues Costs, Seller has received supporting documentation reasonably satisfactory to Seller evidencing such Environmental Issues Costs. The Parties hereby agree that Seller and its Affiliates shall be entitled to control, at their own expense, the prosecution, settlement or compromise of any Environmental Issues (or any Litigation or proceeding relating thereto); provided, however, that neither Seller nor any of its Affiliates shall enter into any settlement agreement without the written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed); provided, further, that such consent shall not be required if (x) the settlement agreement contains a complete and unconditional release by the applicable Governmental Authority of the Project Company with respect to the particular Environmental Issue, (y) the settlement agreement obligates Seller (or its 32 A1070-007 -- 4166969 1 Affiliates) to pay the full amount of any Environmental Issues Costs in connection with the applicable Environmental Issue with respect to that particular Governmental Authority, and (z) the settlement agreement does not impose any direct or indirect obligations upon the Project Company. The Parties hereby agree that Buyer's denial of approval of a settlement or compromise shall be deemed reasonable where the proposed settlement or compromise would have a material adverse impact on the Project Company's ability to carry on its business in the ordinary course. Section 6.12 Payment of Certain Revenues Following the Closing, Buyer shall pay directly to Seller an amount equal to all amounts paid or payable to the Project Company (i) from the Offtaker pursuant to the PPA, and (ii) pursuant to all Terminal Agreements to the extent such amounts paid or payable relate to periods prior to the Closing (the "Revenues"). Seller and its agents, representatives and advisors shall be permitted to review all financial records and information of the Project Company or Buyer relating to the Revenues and Buyer and the Project Company will cooperate in good faith with Seller to facilitate such review. Article VII TAX MATTERS Section 7.1 Cooperation. Buyer and Seller shall cooperate fully, and shall use commercially reasonable efforts to cause the Project Company to cooperate fully, as and to the extent reasonably requested by the other, in connection with the preparation and filing of Tax Returns and any audit, Litigation or other proceeding (each, a "Tax Proceeding") with respect to Taxes for any Pre -Closing Tax Period. Such cooperation shall include access to, the retention and (upon the other Party's request) the provision of records and information that are reasonably relevant to any such Tax Return or Tax Proceeding, the making available of employees on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and the notice of the commencement of any Tax Proceeding for which Seller may be obligated to indemnify Buyer hereunder and Seller shall be entitled to control, at its own expense, the prosecution, settlement or compromise of such Tax Proceeding. The Parties shall, and shall use commercially reasonable efforts to cause the Project Company to, retain all books and records with respect to Tax matters pertinent to the Project Company relating to any taxable period beginning before the Closing Date until the expiration of the applicable statute of limitations of the respective taxable periods, and to abide by all record retention agreements entered into with any Tax Authority. Buyer and Seller each agree, upon request, to use commercially reasonable efforts to obtain any certificate or other document from any Tax Authority or any other Person as may be reasonably necessary to mitigate, reduce or eliminate any Tax that could be imposed with respect to the transactions contemplated by this Agreement. Section 7.2 Transfer Taxes All state and local transfer, sales, use, stamp, registration or other similar Taxes (including any penalties and interest), if any, resulting from the transactions contemplated by this Agreement 33 A1070-007 -- 4166969 1 shall be borne and paid fifty percent (50%) by Buyer and fifty percent (50%) by Seller. Buyer shall, at its expense, timely file any Tax Return or other document with respect to such Taxes (and Seller shall cooperate with respect thereto as necessary). Seller will pay to Buyer its fifty percent (50%) portion of such Taxes no later than two (2) days prior to the due date of the relevant Tax Return. Buyer and Seller shall cooperate in good faith to minimize, to the extent permissible under applicable Law, the amount of any such Taxes. Section 7.3 Tax Returns To the extent permitted by applicable Law, the Tax Returns of the Project Company shall be prepared with a closing of the books on the Closing Date. If not filed prior to the Closing Date, Seller shall prepare and file all Tax Returns and pay all Taxes (including but not limited to income tax, real property tax and personal property tax) of the Project Company relating entirely to any Pre -Closing Tax Period. All such Tax Returns shall be prepared in a manner consistent with the past practices of the Project Company, except as required by applicable Law. Seller shall provide such Tax Returns to Buyer at least thirty (30) days prior to the due date (taking into account any extensions) for Buyer's review and comment. Seller shall incorporate any reasonable comments of Buyer. Taxes due for any Pre -Closing Tax Period (including any penalties and interest, if applicable, whether disclosed in the Tax Return or imposed by subsequent audit) for any Pre -Closing Tax Period shall be paid by Seller. Notwithstanding anything in this Agreement to the contrary, the Parties hereby agree that Seller shall not be responsible for any Taxes for which amounts have already been paid to Buyer at Closing in accordance with Section 7.4. Section 7.4 Prope . Taxes Seller and Buyer shall prorate Taxes for the current year relating to real and personal property of the Project Company as of the Closing. To the extent that such Taxes for the tax year in which the Closing occurs are undisputed, Seller shall pay its prorated share of such Taxes directly to Buyer at Closing. Seller acknowledges that the Mecklenburg County Tax Assessor has instituted an audit of such Taxes for the tax years of 2016 through 2020, inclusive, and shall pay all Taxes determined to be due as a result of such audit which relate to a Pre -Closing Tax Period, including penalties and interest relating to such amounts (whether such penalties or interest accrue before or after the Closing Date) directly to the taxing authority not later than fifteen (15) days following the final determination of the same. Article VIII CONDITIONS TO OBLIGATIONS Section 8.1 Conditions to the Obligations of the Parties. The obligations of the Parties to consummate the transactions contemplated by this Agreement are subject to the satisfaction of the following conditions, any one or more of which may be waived in writing by the Parties: 9m, A1070-007 -- 4166969 1 (a) There shall not be in force any Law restraining or prohibiting the consummation of the transactions contemplated by, and as provided in, this Agreement; and (b) No Governmental Authority shall have issued any injunction or other order (whether temporary, preliminary or permanent) which prohibits or restrains (or seeks to prohibit or restrain) the consummation of the transactions contemplated by, and as provided in, this Agreement. Section 8.2 Conditions to the Obligations of Buy. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the satisfaction of the following conditions, any one or more of which may be waived in writing by Buyer: (a) Seller shall have delivered to Buyer all agreements, instruments and documents required to be delivered by Seller pursuant to Section 2.3(b), (b) Each of the representations and warranties of Seller and York contained in Article III and of Seller in Article IV of this Agreement that are qualified with respect to materiality shall be true and correct in all respects, and each of the representations and warranties of Seller and York contained in Article III and of Seller in Article IV of this Agreement that are not so qualified shall be true and correct in all material respects, on and as of the Closing Date (or on the date when made in the case of any representation and warranty which specifically relates to an earlier date), and there shall have been delivered to Buyer a certificate to such effect, dated as of the Closing Date, signed by Seller and York; (c) Seller and York shall have performed or complied, in all material respects, with all of the covenants and agreements required by this Agreement to be performed or complied with by Seller or York at or before the Closing, and there shall have been delivered to Buyer a certificate to such effect, dated as of the Closing Date, signed by Seller and York; and (d) All Seller Approvals and York Approvals shall have been duly made, given or obtained and shall be in full force and effect, including receipt from Offtaker of its consent to the acquisition of the Project Company by Buyer. Section 8.3 Conditions to the Obligations of Seller. The obligation of Seller and York to consummate the transactions contemplated by this Agreement is subject to the satisfaction of the following conditions, any one or more of which may be waived in writing by Seller: (a) Buyer shall have delivered to Seller and York all agreements, instruments, documents and funds required to be delivered by Buyer pursuant to Section 2.3(c), 35 A1070-007 -- 4166969 1 (b) Each of the representations and warranties of Buyer contained in Article V of this Agreement that are qualified with respect to materiality shall be true and correct in all respects, and each of the representations and warranties of Buyer contained in Article V of this Agreement that are not so qualified shall be true and correct in all material respects, on and as of the Closing Date (or on the date when made in the case of any representation and warranty which specifically relates to an earlier date), and there shall have been delivered to Seller and York a certificate to such effect, dated as of the Closing Date, signed by Buyer; (c) Buyer shall have performed or complied, in all material respects, with all of the covenants and agreements required by this Agreement to be performed or complied with by Buyer on or before the Closing, and there shall have been delivered to Seller and York a certificate to such effect, dated as of the Closing Date, signed by Buyer; and (d) All the Buyer Approvals and Project Company Approvals shall have been duly made, given or obtained and shall be in full force and effect, including receipt from Offtaker of its consent to the acquisition of the Project Company by Buyer. Section 8.4 Frustration of Closing Conditions. None of the Parties may rely on the failure of any condition set forth in Section 8.1, Section 8.2, or Section 8.3, as the case may be, to be satisfied if such failure was caused by such Party's failure to act in good faith or to use its commercially reasonable efforts to cause the Closing to occur. Article IX INDEMNIFICATION Section 9.1 Survival of Representations, Warranties and Covenants. The respective representations and warranties of Seller, York and Buyer contained in Article III, Article IV and Article V of this Agreement shall survive the Closing for a period of twelve (12) months after the Closing Date, other than claims based on Fraud, which shall survive indefinitely. The covenants and agreements of the Parties contained in this Agreement that by their terms do not contemplate performance after the Closing (the "Pre -Closing Covenants") shall survive until the Closing Date and the remaining covenants and agreements shall survive in accordance with their respective terms until such covenant or agreement has been fully performed; provided, that a Party may provide a written notice of claim (describing in reasonable detail the claim, including an estimate of Losses attributable to such claim, to the extent an estimate can then be reasonably determined) for an indemnification claim with respect to a Pre - Closing Covenant for a period of ninety (90) days after the Closing Date. The applicable period set forth above for each such representation, warranty, covenant and agreement is referred to herein as the "Survival Period." No Party shall have any liability for indemnification claims made under this Article IX with respect to any such representation, warranty, covenant or agreement after the applicable Survival Period, if any, unless a written notice of claim (describing in reasonable detail the claim, including an estimate of Losses attributable to such A1070-007 -- 4166969 1 claim, to the extent an estimate can then be reasonably determined) is provided prior to the expiration of the applicable Survival Period. Section 9.2 Indemnification. (a) Subject to the provisions of this Article IX, from and after the Closing, Seller and York shall, jointly and severally, indemnify, defend and hold harmless Buyer and its Representatives (collectively, the `Buyer Indemnified Parties") from and against all Losses that the Buyer Indemnified Parties incur arising from: (i) any breach of any representation or warranty of Seller or York in Article III of this Agreement or Seller in Article IV of this Agreement made as of the Closing Date or any breach of any representation or warranty of Seller or York in Article III of this Agreement or Seller in Article IV of this Agreement speaking to another specific date or time and made as of such other specific date or time; and (ii) any breach of any covenant of Seller or York in this Agreement. (b) [Reserved]. (c) Subject to the provisions of this Article IX, from and after the Closing, Buyer shall indemnify, defend and hold harmless Seller, York and their respective Representatives (collectively, the "Seller Indemnified Parties") from and against all Losses that the Seller Indemnified Parties incur arising from: (i) any breach of any representation or warranty of Buyer in Article V of this Agreement made as of the Closing Date or any breach of any representation or warranty of Buyer in Article V of this Agreement speaking to another specific date or time and made as of such other specific date or time; and (ii) any breach of any covenant of Buyer in this Agreement. Neither Seller nor York shall have any right to seek contribution from the Project Company with respect to all or any part of Seller's or York's indemnification obligations hereunder. Notwithstanding anything contained herein to the contrary, but subject to the last sentence of this paragraph, Buyer, on behalf of itself, the Project Company, and each of its Representatives, hereby releases and forever discharges from and after the Closing each of Seller, York, their respective Affiliates and each of their respective Representatives and the Representatives of the Project Company (acting in their capacity as such) from and against any Losses, whether known or unknown, both in law and in equity, and shall not bring any action or proceeding for officer, director, partner, manager, or controlling (or any other) stockholder or member liability or for breach of any fiduciary or other duty relating to any pre -Closing actions or failures to act (including negligence or gross negligence), in connection with the Business, the Project, the assets of the Project Company or the Project Company prior to Closing. The foregoing release shall not be applicable to, and shall not release any of the foregoing parties from, any claim based on (i) Fraud, (ii) the breach of an express representation or warranty contained herein or (iii) the breach of an express covenant contained herein. 37 A1070-007 -- 4166969 1 Section 9.3 Indemnification Procedures. Claims for indemnification under this Agreement shall be asserted and resolved as follows: (a) The Buyer Indemnified Party or Seller Indemnified Party claiming indemnification under this Agreement (an "Indemnified Party") with respect to any claim asserted against the Indemnified Party by a Third Party (a "Third -Party Claim") in respect of any matter that is subject to indemnification under Section 9.2 shall promptly (i) notify the other Party (or Parties) (the "Indemnifying Party" or the "Indemnifying Parties") of the Third -Party Claim, and (ii) transmit to the Indemnifying Party (or Indemnifying Parties) a written notice (a "Claim Notice") describing in reasonable detail the nature of the Third -Party Claim, a copy of all papers served with respect to such Third -Party Claim (if any), the Indemnified Party's best estimate of the amount of Losses attributable to the Third -Party Claim and the basis of the Indemnified Party's request for indemnification under this Agreement. Failure to timely provide such Claim Notice shall not affect the right of the Indemnified Party's indemnification hereunder, except to the extent the Indemnifying Party is, or the Indemnifying Parties are, materially prejudiced by such delay or omission. (b) Following receipt of the Claim Notice, and unless the Indemnified Parry (or its Affiliate) is also a party and the control of the defense by an Indemnifying Party would be inappropriate due to an actual conflict of interest, the Indemnifying Party (or the Indemnifying Parties, acting in concert) shall have the right to control the defense of the Indemnified Party against such Third -Party Claim in accordance with the following. If the Indemnifying Party (or Indemnifying Parties) notifies the Indemnified Party that such Party (or Parties) elects to assume the defense of the Third -Party Claim within thirty (30) days following receipt of the Claim Notice, then the Indemnifying Party (or Indemnifying Parties) shall have the right to defend such Third -Party Claim with counsel of their choosing, but reasonably approved by the Indemnified Party, in all appropriate proceedings, and shall conduct the defense of such Third -Party Claim diligently to a final conclusion or settlement at the discretion of the Indemnifying Party (or Indemnifying Parties) in accordance with this Section 9.3(b). The Indemnifying Party (or Indemnifying Parties) shall have full control of such defense and proceedings, including any compromise or settlement thereof, provided, however, that no Indemnifying Party shall enter into any settlement agreement without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided, further, that such consent shall not be required if (x) the settlement agreement contains a complete and unconditional release by the Third Party asserting the Third -Party Claim of the Indemnified Party, (y) the settlement agreement obligates the Indemnifying Party (or Indemnifying Parties) to pay the full amount of any Losses attributable to the Indemnified Party in connection with the Third -Party Claim, and (z) the settlement agreement does not impose any direct or indirect obligations upon the Indemnified Party. If requested by an Indemnifying Parry, the Indemnified Party agrees, at the sole cost and expense of such Indemnifying Party, to cooperate reasonably with the Indemnifying Party (or Indemnifying Parties) and its or their counsel in contesting any Third -Party Claim the defense of which is being controlled by such Indemnifying Party (or Indemnifying Parties) pursuant hereto. The Indemnified Party may participate in, but not control, any c: A1070-007 -- 4166969 1 defense or settlement of any Third -Party Claim controlled by an Indemnifying Party pursuant to this Section 9.3(b), and the Indemnified Party shall bear its own costs and expenses with respect to such participation. (c) If no Indemnifying Party having the right to control the defense of the Indemnified Party pursuant to Section 9.3(b) notifies the Indemnified Party within thirty (30) days following receipt of the Claim Notice that such Indemnifying Party elects, or the Indemnifying Parties elect (if applicable), to defend the Indemnified Party pursuant to Section 9.3(b), then the Indemnified Party shall have the right to defend, and subject to the limitations set forth in this Article IX, be reimbursed for its reasonable costs and expenses in regard to the Third -Party Claim with counsel selected by the Indemnified Party (who shall be reasonably satisfactory to the Indemnifying Party or the Indemnifying Parties), by all appropriate proceedings. In such circumstances, the Indemnified Party shall have full control of the defense of such Third -Party Claim. The Indemnifying Party (or Indemnifying Parties) may participate in, but not control, any defense or settlement of any Third -Party Claim controlled by the Indemnified Party pursuant to this Section 9.3 c , and the Indemnifying Party (or Indemnifying Parties) shall bear its own costs and expenses with respect to such participation. (d) Subject to the other provisions of this Article IX, in the event that an Indemnified Party determines that it has a claim for indemnifiable Losses against an Indemnifying Party hereunder (other than as a result of a Third -Party Claim), the Indemnified Party shall give written notice thereof to such Indemnifying Party (or Indemnifying Parties), specifying, in reasonable detail, the amount of such claim, the nature and basis of the alleged breach or act giving rise to such claim and all relevant facts and circumstances relating thereto. The Indemnified Party shall provide the Indemnifying Party (or Indemnifying Parties) and its Representatives with access to its books and records (and, if Seller is an Indemnifying Party, the Project Company's books and records) during normal business hours for the purpose of allowing the Indemnifying Party a reasonable opportunity to verify any such claim for indemnifiable Losses. The Indemnifying Party (or Indemnifying Parties) shall notify the Indemnified Party within thirty (30) days following its receipt of such notice if the Indemnifying Party (or Indemnifying Parties) disputes its liability to the Indemnified Party under this Article IX. If the Indemnifying Party (or Indemnifying Parties) does not provide such notice to the Indemnified Party within such thirty (30) day period, the Indemnifying Party (or Indemnifying Parties) shall be deemed to have agreed, subject to the limitations set forth in this Article IX, to indemnify the Indemnified Party for its indemnifiable Losses. If the Indemnifying Party (or Indemnifying Parties) disputes its liability to the Indemnified Party under this Article IX within such thirty (30) day period, the Indemnifying Party (or Indemnifying Parties) and the Indemnified Party shall negotiate in good faith to determine the liability of the Indemnifying Party (or Indemnifying Parties) for such claim. If such dispute is not resolved by any such negotiation, the Indemnified Party may pursue any other remedy at law or in equity. Section 9.4 Limitations on Liability. Notwithstanding anything to the contrary stated in this Agreement: 39 A1070-007 -- 4166969 1 (a) Other than with respect to Claims based upon a breach or default of a Seller Fundamental Representation, neither Seller nor York shall have any liability arising out of Section 9.2(a)(i) and, other than with respect to Claims based upon a breach or default of a Buyer Fundamental Representation, Buyer shall have no liability arising out of or relating to Section 9.2(b)(i) unless the aggregate Losses actually incurred by the Buyer Indemnified Parties or the SWWWWkwWw)] plicable, arising therefrom exceed an amount equal to (and then only to the extent that such Losses exceed such amount); (b) other than with respect to Claims arising out of Section 9.2(a)(ii) and claims based on Fraud, in no event shall the Buyer Indemnified Parties be entitled to receive from Seller and/or York an amount of Losses in the aggregate in excess of an amount equal to ) (c) [Reserved]; (d) notwithstanding anything herein to the contrary, except for claims based on Fraud or the amounts payable pursuant to Article VII relating to Taxes, the maximum aggregate indemnification obligation of Seller and/or York in res ect of all Losses of all W er Indemnified Parties shall not exceed an amount equal to mm ); (e) the indemnification under this Article IX shall not be available to the Buyer Indemnified Parties to the extent any such Buyer Indemnified Party had actual knowledge of such breach at the time of execution of this Agreement (and for purposes of this Section 9.4, Buyer's knowledge shall be deemed to include the contents of the documents and materials and such other due diligence matters disclosed to Buyer and its Affiliates in the Disclosure Schedules); (f) any Losses shall be reduced or reimbursed, as the case may be, by the amount of any Third -Party insurance coverage the proceeds of which have been collected by Buyer, the Project Company or any of their respective Affiliates with respect to any such Losses, or Third -Party indemnity, Third -Party contribution or similar payments or other similar recovery or offset actually realized, directly or indirectly, by the Indemnified Party with respect to any such Losses, net of expenses paid in procuring such contributions or recovery, including materially increased premiums or deductibles. If a Buyer Indemnified Party or Seller Indemnified Party, as applicable, receives an amount under Third -Party insurance coverage or receives or realizes, directly or indirectly, Third Party indemnity, Third Party contribution or similar payments with respect to Losses that were the subject of indemnification under this Article IX at any time subsequent to receipt of indemnification provided hereunder, then such Buyer Indemnified Party or Seller Indemnified Party, as applicable, shall promptly reimburse Buyer, Seller or York, as applicable, to the extent, but only to the extent, that the failure to do so would result in an actual double -recovery; and (g) if any fact, circumstance or condition forming a basis for a claim for indemnification under this Article IX shall overlap with any fact, circumstance, condition, .O A1070-007 -- 4166969 1 agreement or event forming the basis of any other claim for indemnification under this Article IX, there shall be no duplication in the calculation of the amount of the Losses. Section 9.5 Purchase Price Adjustment. The Parties agree to treat all payments made by Seller or York pursuant to Article IX as adjustments to the Purchase Price for Tax purposes. Section 9.6 Mitigation. Each Indemnified Party shall use, and cause its Affiliates to use, commercially reasonable efforts to mitigate any Losses that may be subject to indemnification under this Article IX upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise to such Losses, solely to the extent that such Party would attempt to mitigate such Losses in the ordinary course of business if such Party did not have a right to indemnification hereunder. Section 9.7 Exclusive Remedy. From and after the Closing, and except for Losses arising out of claims based on Fraud, which shall in no way be limited, the indemnification and remedies set forth in this Article IX shall constitute the sole and exclusive remedies of the Parties with respect to any breach of this Agreement, and each Party's remedy for Losses with respect to the transactions contemplated by this Agreement is solely pursuant to Section 9.2, including Losses from any breach of representation or warranty or non-performance, partial or total, of any covenant or agreement contained in this Agreement or otherwise. In the event a Party should assert rights or obligations in connection with the transactions contemplated by this Agreement under any Law or cause of action not based on the interpretation or application of this Agreement, the Parties agree that the provisions of this Article IX shall in all instances apply to such claim or cause of action. Section 9.8 Directors and Officer's Indemnification. For a period of not less than six (6) years after the Closing Date, Buyer shall take all action within its control to cause the Organizational Documents of the Project Company to contain provisions substantially similar to the provisions concerning the exculpation, indemnification, advancement of expenses to, and holding harmless of, all past and present employees, officers or agents of the Project Company for acts or omissions occurring at or prior to the Closing as are contained in such documents as of the Effective Date, and Buyer shall take all action within its control to cause the Project Company to honor all such provisions, including making any indemnification payments and expense advancement thereunder. In the event that any indemnifiable claim is asserted or made within such six (6) year period, all rights to indemnification and advancement of expenses in respect of such claim shall continue to the extent currently permitted under the Project Company's Organizational Documents until such claim is disposed of, or all orders, injunctions, judgments, decrees, ruling, writs, assessments or arbitration awards in connection with such claim are fully satisfied. To the extent that any indemnification payment is required to be made by the Project Company which (i) relates acts or omissions occurring at or prior to the Closing and (ii) is not reimbursed to the Project Company 41 A1070-007 -- 4166969 1 by insurance or otherwise, then the amount of such indemnification payment shall be promptly reimbursed to Buyer by Seller or York. Section 9.9 Manner of Payments (a) Any payments for indemnification of the Seller Indemnified Parties pursuant to this Article IX shall be effected by wire transfer of immediately available funds from Buyer to an account (or accounts) designated in writing by Seller within fifteen (15) days after the final determination thereof. (b) Any indemnification obligation to the Buyer Indemnified Parties pursuant to this Article IX shall be effected by wire transfer of immediately available funds from Seller or York to an account (or accounts) designated in writing by Buyer within fifteen (15) days after the final determination thereof. Article X TERMINATION Section 10.1 Termination. Prior to the Closing, this Agreement may be terminated and the transactions contemplated hereby abandoned: (a) by the mutual consent of Buyer and Seller as evidenced in a writing signed by each of Buyer and Seller; (b) by Buyer (provided Buyer is not then in material breach of any of its obligations under this Agreement), if there has been a material breach by Seller or York of any of its representations, warranties or covenants contained in this Agreement such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such termination and (y) such breach is incapable of being cured or has not been cured by Seller or York within thirty (30) days after written notice thereof from Buyer; (c) by Seller (provided that neither Seller nor York is then in material breach of any of its obligations under this Agreement), if there has been a material breach by Buyer of any of its representations, warranties or covenants contained in this Agreement (x) such that the conditions set forth in Section 8.1 or Section 8.3 would not be satisfied as of the time of such termination and (y) such breach is incapable of being cured or has not been cured by Buyer within thirty (30) days after written notice thereof from Seller; (d) by either Buyer or Seller if any Governmental Authority having competent jurisdiction has issued a final and non -appealable order, decree, ruling or injunction (other than a temporary restraining order) or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement; (e) by either Buyer or Seller if the Closing has not occurred on or before November 1, 2021 (as such date may be adjusted pursuant to this Section 10.1(e), the 42 A1070-007 -- 4166969 1 "Outside Date") or such later date as the Parties may mutually agree upon; provided, that the right to terminate this Agreement under this Section 10.1(e) shall not be available to Seller on the one hand, or Buyer on the other hand, if the failure of Seller and York or Buyer, respectively, to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to the Outside Date; (f) by Seller if all of the conditions to close set forth in Article VIII have been satisfied (other than such closing conditions that by their nature are to be satisfied at the Closing) or waived in writing by the applicable Party, Seller indicates in such written notice that Seller is ready, willing and able to consummate the transactions contemplated hereby (subject to Buyer performing at the Closing) and Buyer fails to consummate the transactions contemplated hereby within three (3) Business Days of such written notice; or (g) by Buyer in accordance with Section 6.5. Section 10.2 Effect of Termination. (a) In the event of termination and abandonment of this Agreement pursuant to Section 10.1, this Agreement shall forthwith become null and void and have no effect, and the obligations of the Parties under this Agreement shall terminate, except for the obligations set forth in this Section 10.2 and the provisions set forth in Article XI, each of which shall survive termination of this Agreement. Notwithstanding the foregoing, in the event of a termination by Buyer pursuant to Section 10.1(b) or by Seller pursuant to Section 10.1(c), such termination shall not relieve Buyer or Seller, as the case may be, from liability for any breach of this Agreement, and any Party not in breach of this Agreement shall have the right to bring a claim for specific performance in addition to any other rights and remedies available at law or in equity. (b) Except as otherwise provided by Law, no delay or forbearance by a Party in the exercise or enforcement of any right or remedy hereunder shall be deemed a waiver by such Party of its right hereunder to exercise or enforce such right or remedy. (c) No termination of this Agreement shall affect the obligations of the Parties contained in the Confidentiality Agreement, all of which obligations shall survive termination of this Agreement in accordance with their terms. Article XI NHSCELLANEOUS Section 11.1 Notices. All notices, requests, claims, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given or made by delivery in person by an internationally recognized courier service or electronic transmission by PDF (followed by delivery of an original via an internationally recognized courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at 43 A1070-007 -- 4166969 1 the following addresses (or at such other addresses for a Parry as shall be specified in a notice given in accordance with this Section 11.1): If to Seller or York, to: York Renewable Energy Partners LLC c/o York Capital Management 767 Fifth Avenue 17th Floor New York, NY 10153 Attention: Legal Department re: YREP North Carolina Email: legalkyorkcapital.com with a copy (which shall not constitute notice) to: Entropy Investment Management, LLC c/o York Capital Management 767 Fifth Avenue 17th Floor New York, NY 10153 Attention: Kevin Kearney Email: kevin.kearney(r)c,EntropylM.com and to: McGuireWoods LLP Gateway Plaza 800 East Canal Street Richmond, VA 23219 Attention: Michael B. Woodard Email: mwoodardgmcguirewoods.com If to Buyer, to: Anaergia Services, LLC 5780 Fleet St., Ste. 310 Carlsbad, CA 92008 USA Attention: Yaniv Scherson Email- Yaniy.Schersonganaer ig a.com With a copy (which shall not constitute notice) to: Anaergia Services, LLC Office of the General Counsel 5780 Fleet St., Ste. 310 A1070-007 -- 4166969 1 Carlsbad, CA 92008 USA Attention: Thor Erickson Email: Thor.Erickson cganaer ig a.com Section 11.2 Assi ng ment. No Party shall assign this Agreement or any part hereof, by operation of Law or otherwise, without the prior written consent of the other Party (which consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that Buyer may assign its rights and obligations as Buyer under this Agreement to an entity wholly owned by Buyer upon notice to Seller, without need for consent; provided, further, that no such assignment shall relieve the assigning Party of its liabilities and obligations hereunder. Any attempted assignment in violation of this Section 11.2 shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. Section 11.3 Rights of Third Parties. Except for the provisions of Article IX, which are intended to be enforceable by the Persons respectively referred to therein, nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the Parties and their permitted successors and assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Section 11.4 Expenses. Except as otherwise provided herein, each Party shall bear its own expenses incurred in connection with this Agreement and the transactions contemplated hereby whether or not such transactions shall be consummated, including all fees (including all fees of its legal counsel, financial advisors and accountants). Section 11.5 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any facsimile or electronic copies hereof or signatures hereon shall, for all purposes, be deemed originals. Section 11.6 Entire Agreement. This Agreement (together with the Disclosure Schedules and exhibits to this Agreement), and the Confidentiality Agreement constitute the entire agreement among the Parties and supersede any other agreements, whether written or oral, that may have been made or entered into by or among any of the Parties or any of their respective Affiliates relating to the transactions contemplated hereby. No representations, warranties, covenants, understandings or agreements, oral or otherwise, relating to the transactions contemplated by this Agreement exist between Buyer or its Affiliates, on the one hand, and Seller, York or their respective Affiliates, on the other hand, except as expressly set forth in this Agreement or in any document delivered at Closing. 45 A1070-007 -- 4166969 1 Section 11.7 Disclosure Schedules. Unless the context otherwise requires, all capitalized terms used in the Disclosure Schedules shall have the respective meanings assigned to such terms in this Agreement. No reference to or disclosure of any item or other matter in the Disclosure Schedules shall be construed as an admission or indication that such item or other matter is material or that such item or other matter is required to be referred to or disclosed in the Disclosure Schedules. No disclosure in the Disclosure Schedules relating to any possible breach or violation of any Contract or Law shall be construed as an admission or indication that any such breach or violation exists or has actually occurred. The inclusion of any information in the Disclosure Schedules shall not be deemed to be an admission or acknowledgment by Seller or York that in and of itself, such information is material to or outside the ordinary course of the business of the Project Company or is required to be disclosed on the Disclosure Schedules. Each numbered Schedule in the Disclosure Schedules qualifies the correspondingly numbered representation, warranty or covenant to the extent specified therein and such other representations, warranties or covenants to the extent a matter in such numbered Schedule is disclosed in such a way as to make its relevance to such other representation, warranty or covenant reasonably apparent on the face of the disclosure. In no event shall the inclusion of any matter in the Schedules be construed as constituting a representation or warranty of a Party or be deemed or interpreted to broaden a Party's representations, warranties, covenants or agreements contained in this Agreement. No reference in the Disclosure Schedules to any Contract or document shall be construed as an admission or indication that such Contract or document is enforceable or currently in effect or that there are any obligations remaining to be performed or any rights that may be exercised under such Contract or document except to the extent that any such Contract or document is referred to by reference to the Disclosure Schedules in an express representation or warranty to that effect set forth in the Agreement. Section 11.8 Amendments. This Agreement may be amended or supplemented at any time but only by additional written agreements signed by each Party hereto. Section 11.9 Publicily. No Party or any Affiliate or Representative of such Party shall issue or cause the publication of any press release or public announcement or otherwise communicate with any news media in respect of this Agreement or the transactions contemplated hereby without the prior written consent of the other Party (which consent shall not be unreasonably withheld, conditioned or delayed), except as may be required by Law or applicable securities exchange rules and except with respect to customary investor and analyst presentations, meetings and conference calls, in which case, the Party issuing or publishing such press release or making such public announcement shall provide, to the extent reasonably practicable, the other Party with a copy of such press release or public announcement (including any slides or transcripts to be used in any investor or analyst presentation or conference) in advance of its issuing or publishing such press release or making such public announcement, as applicable. M, A1070-007 -- 4166969 1 Section 11.10 Severability. If any term or other provision of this Agreement is illegal, invalid or unenforceable under any Law or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision contained herein is, to any extent, invalid or unenforceable in any respect under the Laws governing this Agreement, the Parties to this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible. Section 11.11 Governing Law; Jurisdiction. (a) This Agreement shall be governed by and construed in accordance with the Laws of the State of New York (without regard to the conflict of laws principles thereof). Each of the Parties irrevocably agrees that any legal action or proceeding with respect to this Agreement or the transactions contemplated hereby shall be brought and determined in any state or federal court in the Borough of Manhattan, New York, New York, and each of the Parties hereto irrevocably submits to the exclusive jurisdiction of such courts solely in respect of any legal proceeding arising out of or related to this Agreement. The Parties further agree that the Parties shall not bring suit with respect to any disputes arising out of this Agreement or the transactions contemplated hereby in any court or jurisdiction other than the above specified courts; provided, however, that the foregoing shall not limit the rights of the Parties to obtain execution of judgment in any other jurisdiction. The Parties further agree, to the extent permitted by Law, that a final and unappealable judgment against a Party in any action or proceeding contemplated above shall be conclusive and may be enforced in any other jurisdiction within or outside the United States by suit on the judgment, a certified copy of which shall be conclusive evidence of the fact and amount of such judgment. The Parties agree that all judicial determinations or findings by a state or federal court in the Borough of Manhattan, New York, New York with respect to any matter under this Agreement shall be binding. (b) To the extent that any Party hereto has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, each such Party hereby irrevocably (i) waives such immunity in respect of its obligations with respect to this Agreement, and (ii) submits to the personal jurisdiction of any court described in this Section 11.11. (c) THE PARTIES HERETO AGREE THAT THEY HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION TO ENFORCE OR INTERPRET THE PROVISIONS OF THIS AGREEMENT. 47 A1070-007 -- 4166969 1 Section 11.12 No Consequential Damages. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NO PARTY SHALL BE LIABLE FOR SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES OR LOST OPPORTUNITY OR LOST PROFITS, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OTHER LAW OR OTHERWISE AND WHETHER OR NOT ARISING FROM THE OTHER PARTY'S SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT (OTHER THAN IN CONNECTION WITH AN INDEMNIFYING PARTY' S INDEMNIFICATION OBLIGATION WITH RESPECT TO A THIRD PARTY CLAIM TO THE EXTENT THAT ANY OF THE FOREGOING DAMAGES ARE INCLUDED IN THE INDEMNIFIABLE AMOUNT). Section 11.13 Waiver of Other Representations and Warranties. EXCEPT FOR ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE III AND ARTICLE IV, THE ASSETS OF THE PROJECT COMPANY AND THE ACQUIRED INTERESTS ARE BEING SOLD "AS IS, WHERE IS," AND SELLER AND YORK EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO LIABILITIES, OPERATIONS OF THE PROJECT AND ASSETS OWNED BY THE PROJECT COMPANY, TITLE, CONDITION, VALUE OR QUALITY OF THE ASSETS OF THE PROJECT COMPANY OR THE PROSPECTS (FINANCIAL, REGULATORY AND OTHERWISE), RISKS AND OTHER INCIDENTS OF THE BUSINESS AND THE ASSETS OF THE PROJECT COMPANY, INCLUDING WITH RESPECT TO THE ACTUAL OR RATED GENERATING CAPACITY OF THE PROJECT OR THE ABILITY OF THE PROJECT COMPANY TO SELL FROM THE PROJECT ELECTRIC ENERGY, CAPACITY OR OTHER PRODUCTS FROM TIME TO TIME, AND SELLER AND YORK SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE, OR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE ASSETS, CONTRACTS AND PERMITS OF THE PROJECT COMPANY, OR ANY PART THEREOF, OR AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, OR COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS, OR AS TO THE CONDITION OF THE ASSETS OF THE PROJECT COMPANY, OR ANY PART THEREOF, INCLUDING WHETHER THE PROJECT COMPANY POSSESSES OR HAS THE RIGHT TO POSSESS SUFFICIENT REAL PROPERTY OR PERSONAL PROPERTY TO OPERATE THE PROJECT, IN EACH CASE EXCEPT AS EXPRESSLY SET FORTH HEREIN. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SELLER AND YORK FURTHER SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING THE ABSENCE OF HAZARDOUS MATERIALS OR LIABILITY OR POTENTIAL LIABILITY ARISING UNDER ENVIRONMENTAL LAWS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NO MATERIAL OR INFORMATION PROVIDED BY OR COMMUNICATIONS MADE BY OR ON BEHALF OF SELLER OR YORK OR BY ANY REPRESENTATIVE, BROKER OR INVESTMENT BANKER, INCLUDING ANY INFORMATION OR MATERIAL CONTAINED IN ANY M. A1070-007 -- 4166969 1 EVALUATION MATERIAL RECEIVED BY BUYER, ITS AFFILIATES OR THEIR RESPECTIVE REPRESENTATIVES (INCLUDING ANY SUPPLEMENTS), INFORMATION PROVIDED DURING DUE DILIGENCE, INCLUDING BUT NOT LIMITED TO INFORMATION IN THE DATA ROOM, AND ANY ORAL, WRITTEN OR ELECTRONIC RESPONSE TO ANY INFORMATION REQUEST PROVIDED TO BUYER, WILL CAUSE OR CREATE ANY WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, CONDITION, VALUE OR QUALITY OF THE ACQUIRED INTERESTS OR THE ASSETS OF THE PROJECT COMPANY THAT IS NOT SET FORTH HEREIN. Section 11.14 Affiliate Liability Notwithstanding anything in this Agreement to the contrary, no past, present or future director, officer, employee, consultant, agent, stockholder, member, partner, manager, Affiliate or other Representative of any Party shall have any personal liability or personal obligation to any Party of any nature whatsoever in connection with or under this Agreement and the transactions contemplated hereby, and each Party hereby waives and releases all claims of any such liability and obligation. [SIGNATURE PAGE FOLLOWS] A1070-007 -- 4166969 1 IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by each Party as of the date first above written. BUYER: ANAERGIA SERVICES, LLC By: q*qz�' Naive: Y niv 5cherson Title. Chief Operating Officer DocuSign Envelope IDF3985BE5-A7B3A232-BD56-CBC3570B6BFA SELLER: CONCORD ERGYPARTNERS, LLC Name: John J. Fosina Title: Authorized Representative SOLELY FOR PURPOSES OF SECTIONS 3.1(B), 3.2(B), 3.3(B), 6.4 ARTICLE IX, ARTICLE X AND ARTICLE XI: YORK -°� ENERGY PARTNERS LLC Y: 7E919108991)848F... Name: Title: John J. Fosina Authorized Representative Signature Page to Purchase and Sale Agreement EXHIBIT A FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made as of this [] day of [ , 202[_], by and between Concord Energy Partners, LLC, a Delaware limited liability company ("Seller"), and Anaergia Services, LLC, a Delaware limited liability company (`Bue"). WITNESSETH: WHEREAS, Seller and Buyer, are parties to that certain Purchase and Sale Agreement, dated [ ], 202[__] (the "Purchase Agreement'), pursuant to which Seller agreed to sell, convey, assign, transfer and deliver to Buyer, all of Seller's rights, title and interests in and to the portion of the Acquired Interests held by Seller and Buyer agreed to purchase and acquire from Seller, all of such rights, title and interests, in each case subject to the terms and conditions set forth therein. Capitalized terms not defined herein shall have the meanings given to them in the Purchase Agreement; and WHEREAS, this Agreement is being delivered pursuant to the terms of the Purchase Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereto hereby agree as follows: 1. Assignment. Subject to the terms and conditions of the Purchase Agreement, Seller hereby sells, conveys, assigns, transfers and delivers to Buyer all of Seller's rights, title and interests in and to the Acquired Interests, consisting of all of the issued and outstanding equity interests in Orbit Energy Charlotte, LLC, a North Carolina limited liability company (the "Project Company"), and all other rights relating to the Project Company held by Seller, including but not limited to governance rights. The foregoing assignment is free and clear of all Liens other than Permitted Liens. 2. Assumption. Subject to the terms and conditions of the Purchase Agreement, Buyer hereby purchases and acquires all of Seller's rights, title and interests in and to the Acquired Interests. 3. Other Provisions. (a) This Agreement shall inure to the benefit of, and be binding upon, Buyer and Seller and their respective successors and assigns. (b) This Agreement shall be governed and construed in accordance with the Laws of the State of New York (without regard to the conflict of laws principles thereof). (c) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A1070-007 -- 4166969 1 Any facsimile or electronic copies hereof or signatures hereon shall, for all purposes, be deemed originals. (d) This Agreement may be amended or supplemented at any time but only by additional written agreements signed by each party hereto, as may mutually be determined by the parties hereto to be necessary, desirable or expedient to further the purpose of this Agreement or to clarify the intention of the parties hereto. [The remainder of this page intentionally left blank.] 2 A1070-007 -- 4166969 1 IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption Agreement to be duly executed on their behalf, on the day and year first above written. CONCORD ENERGY PARTNERS, LLC Name: Title: ANAERGIA SERVICES, LLC Name: Title: A1070-007 -- 4166969 1 DISCLOSURE SCHEDULES See attached. A1070-007 -- 4166969 1 Execution Version DISCLOSURE SCHEDULES These disclosure schedules (the "Disclosure Schedules") are made in connection with the Purchase and Sale Agreement (the "Agreement"), dated as of September 28, 2021, by and among Anaergia Services, LLC, a Delaware limited liability company ("Buyer"), Concord Energy Partners, LLC, a Delaware limited liability company ("Seller"), and York Renewable Energy Partners LLC, a Delaware limited liability company (solely for purposes of Sections 3.1(b), 3.2(b), 3.3(b), 6.4, Article IX, Article X and Article XI) ("York"). Unless the context otherwise requires, all capitalized terms used in the Disclosure Schedules shall have the respective meanings assigned to such terms in the Agreement. No reference to or disclosure of any item or other matter in the Disclosure Schedules shall be construed as an admission or indication that such item or other matter is material or that such item or other matter is required to be referred to or disclosed in the Disclosure Schedules. No disclosure in the Disclosure Schedules relating to any possible breach or violation of any Contract or Law shall be construed as an admission or indication that any such breach or violation exists or has actually occurred. The inclusion of any information in the Disclosure Schedules shall not be deemed to be an admission or acknowledgment by Seller or York that in and of itself, such information is material to or outside the ordinary course of the business of the Project Company or is required to be disclosed on the Disclosure Schedules. Each numbered Schedule in the Disclosure Schedules qualifies the correspondingly numbered representation, warranty or covenant to the extent specified therein and such other representations, warranties or covenants to the extent a matter in such numbered Schedule is disclosed in such a way as to make its relevance to such other representation, warranty or covenant reasonably apparent on the face of the disclosure. In no event shall the inclusion of any matter in the Schedules be construed as constituting a representation or warranty of a Party or be deemed or interpreted to broaden a Party's representations, warranties, covenants or agreements contained in the Agreement. No reference in the Disclosure Schedules to any Contract or document shall be construed as an admission or indication that such Contract or document is enforceable or currently in effect or that there are any obligations remaining to be performed or any rights that may be exercised under such Contract or document except to the extent that any such Contract or document is referred to by reference to the Disclosure Schedules in an express representation or warranty to that effect set forth in the Agreement. A1070-007 - 4160850 1 Kevin Kearney Zack Morgan Schedule 11(a)(i) Seller Knowledge Parties Schedule 1.1(a)(i) - 1 A1070-007 - 4160850 1 Alexander McFarlane Yaniv Scherson Schedule 11(a)(ii) Buyer Knowledge Parties Schedule 1.1(a)(ii) - 1 A1070-007 - 4160850 1 None. Schedule 11(b) Permitted Liens: Tax or Governmental Liens (Contested) Schedule 1.1(b) - 1 A1070-007 -- 4160950 1 None. Schedule 11(c) Permitted Liens: Mechanic's Liens (Contested) Schedule 1.1(c) - 1 A1070-007 -- 4160950 1 None. Schedule 11(d) Deposits under Worker's Compensation & Similar Requirements Schedule 1.1(d) - 1 A1070-007 -- 4160950 1 None. Schedule 11(e) Permitted Liens: Other Schedule 1.1(e) - 1 A1070-007 -- 4160950 1 Schedule 3.3 Seller and York Approvals The following Contracts require filings, consents, approvals, authorizations or notices to be made, given or obtained in connection with the execution, delivery and performance of the Agreement and the consummation of the transactions contemplated thereby by Seller and/or York. Contracts with Orbit Energy Charlotte, LLC • North Carolina Interconnection Agreement, executed as of December 9, 2013, by and between Duke Energy Carolinas, LLC and Orbit Energy Charlotte, LLC, as amended by the First Amendment, dated as of September 30, 2016. • Second Amended and Restated Renewable Energy Purchase Agreement, dated as of September 30, 2016, by and between Orbit Energy Charlotte, LLC and Duke Energy Carolinas, LLC, as amended by the First Amendment, dated as of July 25, 2017. In order to change the authorized person under the Wastewater Permit, the Parties must provide written notice to CLTWater of such change prior to Closing in accordance with the procedures set forth by CLTWater. In addition, various notices will need to be delivered and other actions may need to occur post - Closing to update contact and other information due to the change in ownership of the Project Company. Schedule 3.3 - 1 A1070-007 - 4160850 1 Schedule 3.3(ii) Post -Closing Filings Various notices will need to be delivered and other actions may need to occur post -Closing to update contact and other information due to the change in ownership of the Project Company. Schedule 3.3(ii) - 1 A1070-007 - 4160850 1 Schedule 4.1 Organizational Documents Articles of Organization of Orbit Energy Charlotte, LLC, dated as of March 16, 2010. Limited Liability Company Agreement of Orbit Energy Charlotte, LLC, dated as of January 30, 215 by Concord Energy Partners, LLC, as sole member. Schedule 4.1 - 1 A1070-007 - 4160850 1 Schedule 4.3(b) 3rd Party Purchase Rights Any and all rights set forth in the organizational documents identified on Schedule 4.1. Schedule 4.3(b) - 1 A1070-007 -- 4160950 1 Schedule 4.4 No Undisclosed Liabilities The Project Company may have certain liabilities pursuant to the Proposed Discovery related to the Business Personal Property tax audit in Mecklenburg County, North Carolina identified in Schedule 4 R Schedule 4.4 - 1 A1070-007 - 4160850 1 None. Schedule 4.5 Actions Since Financial Statement Date Schedule 4.5 - 1 A1070-007 -- 4160950 1 Schedule 4.6 Real Property and Real Property Agreements Part I Owned Real Property 1. That certain real property described in the General Warranty Deed (defined in Part II below), such real property being more particularly described as follows: Lying and being in the City of Charlotte, Mecklenburg County, North Carolina, and being more particularly described as follows: Site 1 BEGINNING at an iron located in the northerly margin of Johnson Road and being the southeasterly corner of the tract of property conveyed to Thurston Motor Lines, Inc. by the deed recorded in Book 2303 at Page 178 in the Mecklenburg County Registry; thence North 26 degrees 58 minutes 30 seconds East 452.00 feet to an iron; thence North 69 degrees 58 minutes 30 seconds West 400.18 feet to an iron; thence North 25 degrees 11 minutes 44 seconds East 445.88 feet to an iron; thence South 64 degrees 47 minutes 20 seconds East 710.13 feet, passing irons located on said line at 461.30 feet and 511.32 feet, respectively; thence South 33 degrees 50 minutes 10 seconds West 927.65 feet to an iron located in the northerly margin of the right-of-way of Johnson Road; thence with an arc of a circular curve to the left, said curve having a radius of 348.51 feet, an arc distance of 197.04 feet to an iron, the place of BEGINNING, and containing 8.937 acres, all as shown on the survey entitled "Rufus H. Johnston" prepared by R.B. Pharr & Associates dated August 9, 1974, and revised May 5, 1978, to which survey reference is made for a more particular description of the property. Site 2 BEGINNING at an iron stake in the northerly margin of the roadway 60 feet in width, known as Johnson Road, which point of beginning is 1600 feet distant in an easterly direction from North Graham Street (formerly known as Hutchison Avenue and as Dorita Road), and which point of beginning is also the southeasterly corner of that certain tract of land conveyed by Rufus H. Johnston and wife, Virginia Reid Johnston, to Great Southern Trucking Company by deed recorded in Book 1735 at Page 123 in the Mecklenburg County Public Registry, and running thence with a line of the property of said Great Southern Trucking Company (now or formerly) North 25 degrees 39 minutes 20 seconds East 450.18 feet to an iron stake, another corner of the property of Great Southern Trucking Company (now or formerly); thence South 71 degrees 24 minutes 40 seconds East 400.18 feet to an iron; thence South 25 degrees 39 minutes 20 seconds West 452.0 feet to an iron in the northerly margin of the above -mentioned Johnson Road; thence with said northerly margin of Johnson Road with the arc of a curve left having a radius of 348.51 feet 35.52 feet to an iron; thence continuing with the northerly margin of said Johnson Road North 71 degrees 24 minutes 40 seconds West 364.48 feet to the point Schedule 4.6 - 1 A1070-007 - 4160850 1 and place of BEGINNING, containing 4.13 acres, according to plat of survey by R.B. Pharr dated July 5, 1961. Parcel Identifier No. 08509101 2. That certain real property described in the Non -Warranty Deed (defined in Part II below), such real property being more particularly described as follows: That certain tract or parcel of land situated, lying and being in the City of Charlotte, County of Mecklenburg, State of North Carolina and being more particularly described as follows: BEGINNING at a an existing iron rod on the northerly right-of-way margin of Johnson Road (60 foot public R/W), said point also being the southwest corner of the property of Mitchell Marion and John Phillips (now or formerly or as described in Deed Book 27948, Page 622 of the Mecklenburg County Registry (the "Registry") and runs thence with the northerly margin of Johnson Road with two (2) courses and distances as follows: 1) with a curve turning to the left having a radius of 348.51 feet and an arc length of 232.44 feet (chord bearing of N 51'54' 19" W and a chord length of 228.15 feet) to a new iron rod; and. 2) 71°00'43" W a distance of 364.31 feet to an existing iron rod, aid point being the southeast corner of the Dennis F. Gaines property as described in Deed Book 17572, Page 218 of said Registry; thence with the easterly line of Gaines, N 25°52' 14" E a distance of 450.17 feet to an existing iron rod, said point being the southeast corner of the Premier Transportation MHOC LLC property as described in Deed Book 20236, Page 384 of said Registry; thence with the easterly line of Premier Transportation N 24°16'46" E a distance of 446.24 feet to an existing iron rod, said point being the southeast corner of the Rush Truck Centers of North Carolina Inc. property as described in Deed Book 23723 Page 58 of said Registry and furthermore being a common corner with the aforesaid Mitchell Marion, et al property; thence with the southerly and westerly lines of the Mitchell Marion, et al property with two (2) courses and distances as follows: 1) S 65'44' 11" from a distance of 709.79 feet to an existing iron rod; and. 2) S 32°50'01" W a distance of 927.64 feet to the point and place of BEGINNING, containing an area of 568.182 square feet or 13.0437 acres of land as shown on a survey prepared by R. B Pharr & Associate, P.A dated May 29, 2014 (map file W-4573). Parcel Identifier No. 08509101 Easements 1. That certain real property described in the General Warranty Deed (defined in Part II below), Site 2, such real property being more particularly described as follows: An easement or right-of-way for purposes of ingress, egress and regress in common with the rights of others over and upon said Johnson Road, which is 60 feet in width and extends along the entire southerly line of the above -described tract of land and beyond and to the easterly margin of North Graham Street. Schedule 4.6 - 2 A1070-007 - 4160850 1 Part TT North Carolina General Warranty Deed dated January 22, 2015, by Hillcrest Investors, Inc., a Georgia corporation, as grantor, to Orbit Energy Charlotte, LLC, a North Carolina limited liability company, as grantee, recorded in Book 29725, Page 548, Mecklenburg County Registry (the "General Warranty Deed"). 2. North Carolina Non -Warranty Deed dated January 22, 2015, by Hillcrest Investors, Inc., a Georgia corporation, as grantor, to Orbit Energy Charlotte, LLC, a North Carolina limited liability company, as grantee, recorded in Book 29725, Page 551, Mecklenburg County Registry (the "Non -Warranty Deed"). Schedule 4.6 - 3 A1070-007 - 4160850 1 Schedule 4.7 Litigation The following awards and settlement relate to litigation relating to the Project: • Partial Final Award, dated as of November 16, 2020, in the matter of arbitration between York and Blue Sphere Corporation (Case No. 01-20-0014-7967 and Case No. 01-20- 0014-5713). • Second Partial Final Award, dated as of November 27, 2020, in the matter of arbitration between York and Blue Sphere Corporation (Case No. 01-20-0014-7967 and Case No. 01-20-0014-5713). • Settlement and Release Agreement, dated as of December 18, 2020, by and between York Capital Management Global Advisors, LLC, York, Entropy Investment Management, LLC, the Project Company, Orbit Energy Rhode Island, LLC, and their affiliates, on the one hand, and Montrose Environmental Group, Inc., Montrose Water and Sustainability Services, Inc., ES Engineering Services, LLC and their affiliates, on the other. In addition, there is an ongoing interpleader action brought by York, Seller and Rhode Island Energy Partners, LLC, as plaintiffs/stakeholders, against Blue Sphere Corporation, Prassas Capital LLC and Leonite Capital, LLC, as defendants/claimants, in the Supreme Court of the State of New York, New York County (Index No. 650835/2021), in order to adjudicate the respective rights of the defendants/claimants to certain funds. Relatedly, Seller and Rhode Island Energy Partners, LLC have been involved as garnishees in an ongoing matter in the Superior Court of the State of Delaware in New Castle County of Prassas Capital, LLC, as plaintiff, and Blue Sphere Corporation, as defendant (C.A. No. N20J-00626). Schedule 4.7 - 1 A1070-007 - 4160850 1 Schedule 4.8 Taxes Orbit Energy Charlotte, LLC • Orbit Energy Charlotte, LLC filed its Business Personal Property listings for 2016 — 2018 late due to a misunderstanding of filing requirements (such listings were filed along with the 2019 listing in April of 2019) and Mecklenburg County, North Carolina never acted on those filings prior to the Business Personal Property tax audit discussed below. • Has undergone a Business Personal Property tax audit in Mecklenburg County, North Carolina in 2021. Orbit Energy Charlotte, LLC received an official thirty (30) day notice of audit findings, proposed property discovery and abstract correction via letter dated July 23, 2021 from April F. Vance, CPPA (the "Proposed Discovery"). The Proposed Discovery asserted certain unfiled Business Personal Property tax listings as set forth above (which Orbit Energy Charlotte, LLC had filed but late due to a misunderstanding of filing requirements) and unlisted property including misclassified property. Orbit Energy Charlotte, LLC filed its response to the Proposed Discovery on August 19, 2021. Schedule 4.8 - 1 A1070-007 - 4160850 1 Schedule 4.9 Material Contracts Contracts with Orbit Energy Charlotte, LLC Fully Performed, Expired, or Terminated • Professional Services Agreement, dated as of February 8, 2018, by and between Orbit Energy Charlotte, LLC and ES Engineering Services, LLC. o Notice of Termination dated August 4, 2020 delivered by Orbit Energy Charlotte, LLC to Montrose Environmental Group, Inc. and Montrose Water and Sustainability Services, Inc. (formerly ES Engineering Services, LLC). • Construction Management Agreement, effective as of October 1, 2020, by and between Orbit Energy Charlotte, LLC and Stodghill Biofuels, LLC. o First Amendment to Construction Management Agreement dated December 3, 2020, by and between Orbit Energy Charlotte, LLC and Stodghill Biofuels, LLC. o Termination Letter dated June 30, 2021 delivered by Orbit Energy Charlotte, LLC to Stodghill Biofuels, LLC. • Delivery Terms for Test Loads of Waste, dated as of May 30, 2017, as acknowledged by Organix Recycling, LLC. (fully performed) • Delivery Terms for Loads of Waste, dated as of July 16, 2019, as acknowledged by Northstar Recycling Company, Inc. (fully performed) • Spot Delivery Terms for Loads of Waste, dated as of January 24, 2020, as acknowledged by Northstar Recycling Company, Inc. (fully performed) • Delivery Terms for Test Loads of Waste, dated as of February 28, 2020, as acknowledged by Zinvictus, Inc. (fully performed) • Spot Delivery Terms for Loads of Waste, dated September 15, 2020, as acknowledged by Northstar Recycling Company, Inc. (fully performed) Active Contracts Utilities • North Carolina Interconnection Agreement, executed as of December 9, 2013, by and between Duke Energy Carolinas, LLC and Orbit Energy Charlotte, LLC, as amended by the First Amendment, dated as of September 30, 2016. • Second Amended and Restated Renewable Energy Purchase Agreement, dated as of September 30, 2016, by and between Orbit Energy Charlotte, LLC and Duke Energy Carolinas, LLC, as amended by the First Amendment, dated as of July 25, 2017. o Notice of Commercial Operation, dated November 22, 2016, pursuant to the Second Amendment and Restated Renewable Energy Purchased Agreement, dated as of September 30, 2016, by and between Orbit Energy Charlotte, LLC and Duke Energy Carolinas, LLC. o Letter Agreement for Replacement 2018 RECs, dated as of July 3, 2018, by and between Duke Energy Carolinas, LLC and Orbit Energy Charlotte, LLC. o Letter Agreement for Replacement 2019 RECs, dated as of January 6, 2020, by and between Duke Energy Carolinas, LLC and Orbit Energy Charlotte, LLC, as revised January 27, 2020. Schedule 4.9 - 1 A1070-007 - 4160850 1 o Letter Agreement for Replacement 2020 RECs, dated as of March 1, 2021, by and between Duke Energy Carolinas, LLC and Orbit Energy Charlotte, LLC. Orbit Energy Charlotte, LLC has informed Duke Energy Carolinas, LLC that it will be unable to meet the 2021 Minimum REC Requirements (as defined in that certain Second Amended and Restated Renewable Power Purchase Agreement dated September 30, 2016, as amended and supplemented) and anticipates delivering substitute General Electric RECs not generated by the facility as substitute RECs as it has done for years 2018-2020 pursuant to letter agreements between the parties as disclosed in this Schedule 4.9. • Renewable Energy Certificate Purchase and Sale Agreement, dated as of July 5, 2018, between 313egrees Group, Inc., and Orbit Energy Charlotte, LLC. o Confirmation Letter 95 to the Renewable Energy Certificate Purchase and Sale Agreement, dated as of March 1, 2021, between 313egrees Group, Inc., and Orbit Energy Charlotte, LLC. o Confirmation Letter 94 to the Renewable Energy Certificate Purchase and Sale Agreement, dated as of January 27, 2020, between 313egrees Group, Inc., and Orbit Energy Charlotte, LLC. o Confirmation Letter 93 to the Renewable Energy Certificate Purchase and Sale Agreement, dated as of February 1, 2019, between 313egrees Group, Inc., and Orbit Energy Charlotte, LLC. o Confirmation Letter 92 to the Renewable Energy Certificate Purchase and Sale Agreement, dated as of August 2, 2018, between 313egrees Group, Inc., and Orbit Energy Charlotte, LLC. o Confirmation Letter 91 to the Renewable Energy Certificate Purchase and Sale Agreement, dated as of July 5, 2018, between 313egrees Group, Inc., and Orbit Energy Charlotte, LLC. • Solar Renewable Energy Certificate Sales Agreement, dated as of June 30, 2020, by and between McGrigor Farm Solar LLC and Orbit Energy Charlotte, LLC. Construction • Confidential Disclosure Agreement, dated as of May 23, 2017, by and between Montrose Environmental Group, Inc., and Orbit Energy Charlotte, LLC. • Consent to Disclose Information, dated February 23, 2018, by and between Orbit Energy Charlotte, LLC and ES Engineering Services, LLC. • Professional Services Agreement, dated as of March 9, 2018, by and between Leidos Engineering, LLC and Orbit Energy Charlotte, LLC. Operations • Interim Operations and Maintenance Agreement, dated as of February 20, 2018, by and between Orbit Energy Charlotte, LLC and ES Engineering Services, LLC (as amended by the following letter agreement, the "O&M Contract'). o Letter Agreement, dated as of June 11, 2020, by and between by and between Orbit Energy Charlotte, LLC and Montrose Water and Sustainability Services, Inc. (successor to ES Engineering Services, LLC). Permitting Compliance Schedule 4.9 - 2 A1070-007 - 4160850 1 • Proposal for Solid Waste Permit Renewal Application & Odor Control Plan dated August 27, 2020 and executed effective August 28, 2020, by and between Hart & Hickman, PC and Orbit Energy Charlotte, LLC. Feedstock • Consulting Agreement, dated as of June 10, 2016, by and between Orbit Energy Charlotte, LLC and Transworld Partners, Inc., as amended by that First Amendment to Consulting Agreement, dated as of September 1, 2016. • Letter Agreement, dated as of March 19, 2018, by and between EIP Ventures LLC and Orbit Energy Charlotte, LLC. • Waste Delivery Agreement, dated as of October 14, 2016, by and among Orbit Energy Charlotte, LLC and Terra Renewal Services, Inc. (now Denali Waste Solutions, LLC). o Commencement Date Notice, dated as of October 19, 2016, given by Orbit Energy Charlotte, LLC to Terra Renewal Services, Inc., pursuant to that Waste Delivery Agreement, dated as of October 14, 2016, by and among Orbit Energy Charlotte, LLC and Terra Renewal Services, Inc. • Waste Delivery Agreement, dated as of November 7, 2016 and executed November 9, 2016, by and among Orbit Energy Charlotte, LLC and Liquid Environmental Solutions Corporation. o Commencement Date Notice, dated as of November 10, 2016, given by Orbit Energy Charlotte, LLC to Liquid Environmental Solutions Corporation, pursuant to that Waste Delivery Agreement, dated as of November 7, 2016, by and between Orbit Energy Charlotte and Liquid Environmental Solutions Corporation. • Waste Delivery Agreement, dated as of November 29, 2016, by and among Orbit Energy Charlotte, LLC and Waste Management of Carolinas, Inc. • Waste Delivery Agreement, dated as of July 28, 2017, by and among Orbit Energy Charlotte, LLC and RJ Recovery, LLC. • Waste Delivery Agreement, dated as of September 7, 2017, by and among Orbit Energy Charlotte, LLC and Gallins Family Farm, Inc. • Waste Delivery Agreement, dated as of October 2, 2017, by and among Orbit Energy Charlotte, LLC and Sonoco Recycling, LLC. • Delivery Terms for Spot Delivery of Waste, dated as of September 13, 2017, as acknowledged by Lidl US Operations, LLC. • Delivery Terms for Loads of Waste, dated as of May 22, 2019, as acknowledged by Liquid Environmental Solutions Corporation. • Delivery Terms for Loads of Waste, dated as of June 17, 2019, as acknowledged by Organix Recycling, LLC. • Delivery Terms for Loads of Waste, dated as of June 18, 2019, as acknowledged by Cal - Maine Foods, Inc. • Delivery Terms for Loads of Waste, dated as of June 26, 2019, as acknowledged by MBP Solutions USA LLC. • Pilot Delivery Terms for Loads of Waste, dated as of July 18, 2019, as acknowledged by Coca-Cola Bottling Co. Consolidated. • Supplier Code of Conduct Certification of Tyson Foods, Inc., dated as of August 5, 2019, as acknowledged by Orbit Energy Charlotte, LLC. Schedule 4.9 - 3 A1070-007 - 4160850 1 • Delivery Terms for Loads of Waste, dated as of November 19, 2019, as acknowledged by Perdue Foods, LLC. • Delivery Terms for Loads of Waste, dated as of December 6, 2019, as acknowledged by ECO Development, LLC. • Master Services Agreement, dated as of December 13, 2019 by and between Campbell Soup Company and Orbit Energy Charlotte, LLC. • Delivery Terms for Loads of Waste, dated as of December 23, 2019, as acknowledged by Brakebush Brothers, Inc. • Termination of Waste Delivery Agreement and Pilot Delivery Terms for New Loads of Waste, dated as of January 14, 2020, by and among Orbit Energy Charlotte, LLC and Zero Waste Recycling, LLC. • Delivery Terms for Loads of Waste, dated as of February 21, 2020, by and between Orbit Energy Charlotte, LLC and Crown Town Compost, LLC. • Delivery Terms for Loads of Waste, dated as of June 8, 2020, as acknowledged by KilnDirect, LLC. • Delivery Terms for Loads of Waste, dated as of June 8, 2020, as acknowledged by LJC Environmental, LLC. • Waste Delivery Agreement (Nestle), dated January 3, 2020, by and between Orbit Energy Charlotte, LLC and Carolina Recycling and Consulting, LLC. • Spot Delivery Terms for Loads of Waste (Kraft -Heinz), dated January 11, 2021, as acknowledged by Northstar Recycling Company, Inc. • Delivery Terms for Loads of Waste (Martin Brower), dated February 10, 2021, as acknowledged by Northstar Recycling Company, Inc. • Delivery Terms for Loads of Waste (Diana Pet Food), dated February 18, 2021, as acknowledged by Northstar Recycling Company, Inc. • Delivery Terms for Test Loads of Waste, dated April 23, 2021, as acknowledged by Complete Recycling, LLC. Schedule 4.9 - 4 A1070-007 - 4160850 1 Schedule 4.10 Permits; Compliance with Laws Orbit Energy Charlotte, LLC • Mecklenburg County Building Permits for Parcel No. 8509101:1 o Permit No. B2781888 issued April 17, 2015. o Permit No. B2770189 issued March 25, 2015. o Permit No. B2793847 issued May 11, 2015. o Permit No. E2877253 issued October 23, 2015. o Permit No. B2794121 issued May 11, 2015. o Permit No. M289420 issued December 2, 2015. o Permit No. E2902848 issued December 23, 2015. o Permit No. B2941566 issued March 22, 2015. o Permit No. B2941651 issued March 22, 2016. o Permit No. B2814508 issued June 17, 2015. o Permit No. E2823079 issued July 2, 2015. o Permit No. B2857997 issued September 14, 2018. • Fire Permit for 13a Flammable Liquid (5-40gal ins), Permit Number 2020-173093389, issued by the Charlotte Fire Department and dated January 5, 2020. • Fire Permit for 14b Combustible Liquid 2&3A (61-500), Permit Number 2020- 173093388, issued by the Charlotte Fire Department and dated January 5, 2020. • Fire Permit for 22D Hazardous Materials (>5500 gal), Permit Number 2020-173093387, issued by the Charlotte Fire Department and dated January 5, 2020. • Certificate of Boiler Inspection, NC425025 issued by the North Carolina Department of Labor and dated March 12, 2020. 1 Each of these permits expired in connection with the completion of construction. Schedule 4.10 - 1 A1070-007 - 4160850 1 Schedule 4.12(a) Environmental Reports Phase I Environmental Site Assessment, prepared by Hart and Hickman, PC, dated November 8, 2012 and updated August 14, 2014. Report of Geotechnical Exploration Charlotte Biogas Plant, prepared by S&ME, Inc. for The Austin Company, dated June 18, 2014. Schedule 4.12(a) - 1 A1070-007 - 4160850 1 Schedule 4.12(b) Environmental Issues • Wastewater Permit. Orbit Energy Charlotte, LLC is currently discharging wastewater to the City of Charlotte ("CLTWater") pursuant Permit to Discharge Wastewater No. 5016, issued by CLTWater, as amended and modified (the "Wastewater Permit"). Upon review of the facility's Periodic Self -Monitoring Report delivered by Orbit Energy Charlotte, LLC to CLTWater on June 17, 2021, CLTWater noted that the facility discharged wastewater containing ammonia in excess of the permitted daily limit on two separate days during May, 2021. On July 9, 2021, CLTWater delivered a letter to Orbit Energy Charlotte, LLC noting the permit violation but further noting that the facility had already completed the required compliance monitoring which brought the facility back into permit compliance on the ammonia exceedance. The July 14, 2021 email by which the July 9, 2021 letter was delivered by CLTWater noted that the violation on May 13, 2021 was considered a Slug Load of ammonia and that CLTWater would be issuing an NOV with a Civil Penalty according to CLTWater's Enforcement Response Plan. The NOV and Civil Penalty have not yet been received from CLTWater. The facility is currently discharging water within all permit limits. • Air Quality Permit. Orbit Energy Charlotte, LLC received notice from the Mecklenberg County Land Use and Environmental Services Agency — Air Quality on August 27, 2021 indicating that the facility was immiting on objectionable odor due to two loads of feedstock which contained higher than normal levels of surfactants/cleaning agents which caused excess foam to spill out of the bio-pulper tank. This odor was in violation of the Mecklenburg County Air Pollution Control Ordinance. Orbit Energy Charlotte, LLC is required to submit a written standard operating procedure by September 30, 2021 detailing the actions taken to minimize and prevent foam spills at the facility • Stormwater Permit. Orbit Energy Charlotte, LLC received two letters on August 27, 2021 and August 31, 2021 from Charlotte -Mecklenburg Storm Water Services ("CMSWS"') regarding violations for illicit discharge: o On August 20, 2021, Matt Santiago with CMSWS observed that anaerobically digested food waste was discharged into the first of four Best Management Practice (BMP) basins (the "August 20 Incident"). o On August 30, 2021, Matt Santiago with CMSWS observed discharge of process waste water to the tributary of Derita Branch due to the overflow of waste water from a process tank (the "August 30 Incident"). CSWS indicated that the discharge resulted in negative water quality impacts resulting in a fish kill. Among other remedial actions, Orbit Energy Charlotte, LLC is required to submit a written response to CMSWS within ten (10) calendar days following receipt of each notice. The City of Charlotte is considering civil penalty assessment proceedings against Orbit Energy Charlotte, LLC for the August 30 Incident. Orbit Energy Charlotte, LLC responded to CMSWS on September 17, 2021 with respect to both the August 20 Schedule 4.12(b) - 1 A1070-007 - 4160850 1 Incident and August 30 Incident. Orbit Energy Charlotte, LLC's response noted that, among other things: • In regards to the August 20 Incident, no material left the BMP basins and all clean-up was complete by August 22, 2021. • In regards to the August 30 incident, (i) Carolina Energy Response Team and US Waste were engaged for clean-up and all clean-up was complete by September 15, 2021, and (ii) Orbit Energy Charlotte, LLC disputes the fish kill. In addition, with respect to the August 30 Incident, Orbit Energy Charlotte, LLC also received a Notice of Violation/Notice of Recommendaiton for Enforcement, dated September 9, 2021, from the North Carolina Department of Environmental Quality, Division of Water Resources ("NC DEQ") stating that NC DEQ is considering an enforcement action for the August 30 Incident. NC DEQ requested that Orbit Energy Charlotte, LLC submit a written response within ten (10) days of receipt of such notice. Orbit Energy Charlotte, LLC submitted its response on September 17, 2021 and submitted a supplement to its initial response on September 21, 2021. Schedule 4.12(b) - 2 A1070-007 - 4160850 1 Schedule 4.12(c) Environmental Permits Orbit Energy Charlotte, LLC • Air Quality Title V Permit 19-01V-021, issued by the Mecklenburg County Air Quality Program and dated May 30, 2019. • Permit to Construct and Operate for the Orbit Energy Charlotte Biogas Plant, Permit No 6033-AD-COMPOST-2015, issued by the North Carolina Department of Environmental Quality and dated October 2, 2015 — this permit expires March 19, 2021; renewal application submitted as outlined immediately below. o Application for Renewal of Solid Waste Permit, submitted by Hart & Hickman PC on behalf of Orbit Energy Charlotte, LLC, to the North Carolina Department of Environmental Quality Division of Waste Management, Solid Waste Section, and dated November 19, 2020. • Certificate of Coverage No. NCG060387, issued by the State of North Carolina Department of Environmental Quality, DEMLR, and dated April 9, 2018. • Permit to Discharge Wastewater under the Industrial Pretreatment Program, Permit No 5016, issued by the City of Charlotte, Charlotte Water, and dated June 1, 2019, as modified effective September 27, 2021.2 • Brownfields Agreement, dated as of October 24, 2015, by and between the North Carolina Department of Environment and Natural Resources and Orbit Energy Charlotte, LLC. 2 The Parties hereby agree that, notwithstanding the fact that the revised copy of such Permit was provided to Buyer on September 28, 2021, such Permit shall be considered to have been properly Made Available to Buyer for purposes of Section 4.10. Schedule 4.12(c) - 1 A1070-007 - 4160850 1 Schedule 4.13 Company Policies • Liability: Policy No. EPO105160202 issued June 13, 2021 by Arch Insurance Company to Entropy Investment Management, LLC and naming Entropy Investment Management, LLC, Orbit Energy Charlotte, LLC, and Orbit Energy Rhode Island, LLC as Named Insureds, with all applicable Endorsements. • Umbrella: Policy No. ULP104830202 issued June 13, 2021 by Arch Insurance Company to Entropy Investment Management, LLC and naming Entropy Investment Management, LLC, Orbit Energy Charlotte, LLC, and Orbit Energy Rhode Island, LLC as Named Insureds, with all applicable Endorsements. • Property: Policy No. EUTN1 82 14 72 6 issued August 14, 2020 by ACE American Insurance to Entropy Investment Management, LLC, Orbit Energy Rhode Island, LLC and Orbit Energy Charlotte, LLC, as the Insureds, with all applicable Endorsements, as extended by that certain Extension Endorsement effective as of August 14, 2021 extending the policy period until November 14, 2021. • PLL: Policy No. W2ECC13210101 issued May 6, 2021 by Beazley USA Services, Inc. issued to Orbit Energy Charlotte, LLC, with all applicable Endorsements. Schedule 4.13 - 1 A1070-007 - 4160850 1 Schedule 4.15 Bank Accounts All of the following bank accounts will be closed prior to Closing: Orbit Energy Charlotte, LLC Checking Account: Bank of America PO Box 15284 Wilmington, DE 19850 Authorized Persons: Kevin Kearney and Zack Morgan Certificate of Deposit: Fifth Third Bank 5050 Kingsley Drive, MD 1MOCBR Cincinnati, OH 45263 Authorized Persons: Kevin Kearney Schedule 4.15 - 1 A1070-007 - 4160850 1 Schedule 416(b) FERC Docket Orbit Energy Charlotte, LLC: Docket Number QF13-246-000 Schedule 4.16(b) - 1 A1070-007 -- 4160850 1 None. Schedule 4.17 Intellectual Property Schedule 4.17 - 1 A1070-007 -- 4160950 1 Schedule 4.20 Brokers Sparkstone Capital Advisors EIP Ventures, LLC For the avoidance of doubt, Seller is the sole party responsible for the payment of the fees to either broker set forth herein. Schedule 4.20 - 1 A1070-007 - 4160850 1 Schedule 5.3 Buyer Approvals Consent or approval of the change of control from the applicable contracting or permitting party with respect to each of the following: Contracts with Orbit Energy Charlotte, LLC o North Carolina Interconnection Agreement, executed as of December 9, 2013, by and between Duke Energy Carolinas, LLC and Orbit Energy Charlotte, LLC, as amended by the First Amendment, dated as of September 30, 2016. o Second Amended and Restated Renewable Energy Purchase Agreement, dated as of September 30, 2016, by and between Orbit Energy Charlotte, LLC and Duke Energy Carolinas, LLC, as amended by the First Amendment, dated as of July 25, 2017. In order to change the authorized person under the Wastewater Permit, the Parties must provide written notice to CLTWater of such change prior to Closing in accordance with the procedures set forth by CLTWater. Schedule 5.3 - 1 A1070-007 - 4160850 1 Schedule 6.1 Conduct of Business (Pre -Closing) The Project Company may terminate the O&M Contract, if the Parties mutually agree upon such termination. Schedule 6.1 - 1 A1070-007 - 4160850 1 Schedule 6.9 Seller Credit Support Orbit Energy Charlotte, LLC • Standby Letter of Credit to Duke: _ 149537137 Schedule 6.9 - 1 A1070-007 - 4160850 1