Contract analysis

Section 1.1 — Defined Terms As used in this Agreement, the following terms shall have the meanings set forth below: "Affiliate" means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, "control" (including the terms "controlling," "controlled by," and "

Section 1.2 — Other Definitional Provisions (a) Unless the context otherwise requires, (i) all references to "Sections," "Articles," "Schedules," and "Exhibits" are to the Sections, Articles, Schedules, and Exhibits of and to this Agreement, (ii) each term defined in this Agreement has the meaning assigned to it, (iii) "or" is disjunctive but not exclusive, (iv) words in the singular include the plural and vice versa

ARTICLE II — CONTRIBUTION AND ACCEPTANCE

Section 2.1 — Contribution of Project Portfolio Subject to the terms and conditions of this Agreement, at the Closing, Contributor hereby agrees to contribute, assign, transfer, convey, and deliver to the Company, and the Company hereby agrees to accept from Contributor, all of Contributor's right, title, and interest in and to the Contributed Assets, free and clear of all Liens other than Permitted Liens. The Contri

Section 2.2 — Agreed Valuation The Parties agree that the Contributed Assets have an agreed fair market value equal to the Agreed Value of Ninety Million Dollars ($90,000,000). The Agreed Value has been determined by the Parties based on the Fairness Analysis delivered by Ridgeline Barrow & Co., an independent financial advisory firm, dated November 15, 2023. The Fairness Analysis valued the Project Portfolio in the

Section 2.3 — Tax Treatment (a) Section 721 Treatment. The Parties intend that the Contribution be treated, for U.S. federal (and applicable state and local) income tax purposes, as a contribution of property by a partner to a partnership in exchange for a partnership interest under Section 721 of the Code, and that no gain or loss be recognized by either Party on account of the Contribution. Neither Party shall take

Section 2.4 — Assumed Liabilities Effective as of the Closing, the Company shall assume and agree to pay, perform, and discharge when due all liabilities and obligations of Contributor relating to or arising from the Contributed Assets from and after the Closing Date (collectively, the "Assumed Liabilities"), including, without limitation, (a) all obligations of Contributor under the Land Leases arising from and afte

Section 2.5 — Excluded Liabilities Notwithstanding any other provision of this Agreement, the Company shall not assume, and Contributor shall remain solely responsible for and shall pay, perform, and discharge when due, any and all liabilities and obligations of Contributor (a) arising prior to the Closing Date, (b) not related to the Contributed Assets, or (c) arising from any act, omission, event, condition, or cir

Section 3.1 — Closing The closing of the Contribution and the other transactions contemplated by this Agreement (the "Closing") shall take place simultaneously with the closing of the transactions contemplated by the LLC Agreement on the date on which all conditions to the obligations of the Parties to consummate the Closing set forth in Article IV have been satisfied or waived (other than those conditions that, by t

Section 3.2 — Contributor's Closing Deliverables At or prior to the Closing, Contributor shall deliver or cause to be delivered to the Company the following: (a) Assignment and Assumption Agreements (Land Leases). Duly executed assignment and assumption agreements, substantially in the form attached hereto as Exhibit A, for each of the Land Leases listed on Schedule B, assigning Contributor's right, title, and intere

Section 3.3 — Company's Closing Deliverables At or prior to the Closing, the Company shall deliver or cause to be delivered to Contributor the following: (a) Executed Counterpart. A duly executed counterpart of this Agreement; (b) Assumption Agreements. Duly executed counterparts of each of the assignment and assumption agreements delivered by Contributor pursuant to Section 3.2(a) through Section 3.2(d), evidencing

ARTICLE IV — CONDITIONS TO CLOSING

Section 4.1 — Conditions to Obligations of Each Party The respective obligations of Contributor and the Company to consummate the Closing are subject to the satisfaction or waiver (to the extent permitted by Applicable Law) on or prior to the Closing Date of each of the following conditions: (a) No Injunction. No Governmental Authority shall have enacted, issued, promulgated, enforced, or entered any Applicable Law,

Section 4.2 — Conditions to Obligations of the Company The obligation of the Company to consummate the Closing is subject to the satisfaction or waiver by the Company on or prior to the Closing Date of each of the following additional conditions: (a) Representations and Warranties. The representations and warranties of Contributor set forth in Article V shall be true and correct in all material respects (or, with res

Section 4.3 — Conditions to Obligations of Contributor The obligation of Contributor to consummate the Closing is subject to the satisfaction or waiver by Contributor on or prior to the Closing Date of each of the following additional conditions: (a) Representations and Warranties. The representations and warranties of the Company set forth in Article VI shall be true and correct in all material respects (or, with re

ARTICLE V — REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR Contributor hereby represents and warrants to the Company as of the Signing Date and as of the Closing Date (except to the extent any such representation or warranty is expressly made as of a specific date, in which case such representation or warranty is made only as of such specific date) as follows:

Section 5.1 — Organization and Good Standing Contributor is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas. Contributor has all requisite corporate power and authority to own, lease, and operate its properties and assets and to carry on its business as currently conducted. Contributor is duly qualified or registered to do business as a foreign corporation and

Section 5.2 — Authority; Enforceability Contributor has all requisite corporate power and authority to execute, deliver, and perform this Agreement and each of the other agreements, instruments, and documents to be executed and delivered by Contributor in connection herewith, and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance of this Agreement and the consumma

Section 5.3 — No Conflicts The execution, delivery, and performance by Contributor of this Agreement and the consummation of the transactions contemplated hereby do not and will not (a) violate, conflict with, or result in a breach of any provision of the certificate of incorporation or bylaws of Contributor, as currently in effect, (b) violate, conflict with, or result in a breach of, or constitute a default (or an

Section 5.4 — Consents and Approvals No consent, approval, authorization, order, registration, declaration, or filing with or notice to any Governmental Authority or third party is required to be obtained or made by or with respect to Contributor in connection with the execution, delivery, and performance of this Agreement or the consummation of the transactions contemplated hereby, except for (a) the pre-merger noti

Section 5.5 — Title to Contributed Assets Contributor is the sole legal and beneficial owner of the Contributed Assets, and Contributor has good and valid title to (or, in the case of leased assets, valid leasehold interests in) all of the Contributed Assets, in each case free and clear of all Liens other than Permitted Liens. Upon consummation of the Contribution in accordance with the terms of this Agreement, the C

Section 5.6 — Project Portfolio Description (a) Schedule A accurately and completely describes each of the eight (8) Projects comprising the Project Portfolio, including the project name, location (county and state), nameplate DC capacity, acreage under Land Leases, type of land control, and development status of each Project as of the Signing Date. (b) The aggregate nameplate DC capacity of the Project Portfolio is

Section 5.7 — Land Leases and Real Property (a) Schedule B sets forth a true, complete, and correct list of all Land Leases relating to the Project Sites, including the identity of the lessor, the lessee, the date of execution, the primary term, all renewal and extension options, the rental amounts, the acreage covered, the legal description (by reference), and recording information for each Land Lease. (b) Each Land

Section 5.8 — Environmental Matters (a) The Projects and the Project Sites are in compliance in all material respects with all applicable Environmental Laws, and Contributor has not received any written notice of any violation of, or non-compliance with, any Environmental Law relating to the Projects or the Project Sites. (b) Contributor has obtained or has duly filed applications for all Environmental Permits requir

Section 5.9 — Project Permits (a) Schedule C sets forth a true, complete, and correct list of all material Project Permits for each of the Projects, including the issuing Governmental Authority, permit number, date of issuance, expiration date (if applicable), and any material conditions or restrictions. (b) All material Project Permits are in full force and effect, and Contributor is not in material default under an