Contract analysis

Section 1.1 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not defined in this Agreement shall have the meanings ascribed to them in the TCPA unless the context otherwise requires. "Affiliate" means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by,

Section 1.2 Rules of Construction. For purposes of this Agreement: (a) References to "Articles," "Sections," "Exhibits," and "Schedules" are to the articles, sections, exhibits, and schedules of this Agreement unless otherwise indicated. (b) Words in the singular include the plural and words in the plural include the singular. (c) References to any gender include every other gender. (d) The word "including" and words

Section 2.1 Indemnification Obligation. CBR hereby agrees to indemnify, defend, and hold harmless Purchaser and its Affiliates, and their respective officers, directors, employees, agents, successors, and permitted assigns (each, an "Indemnified Party") from and against any and all Indemnified Tax Losses. As used in this Agreement, "Indemnified Tax Loss" means any and all losses, liabilities, damages, costs, charges,

Section 2.2 Indemnity Amount. The base indemnity amount for any Indemnified Tax Loss shall be calculated as follows: (a) Dollar-for-Dollar Credit Reimbursement. The base indemnity amount shall equal one hundred percent (100%) of the dollar amount of the Transferred Credits that are recaptured, disallowed, reduced, or otherwise rendered unavailable to Purchaser. By way of illustration, if Ten Million Dollars ($10,000,

Section 2.3 Gross-Up. Each indemnity payment made by CBR to Purchaser under this Article II shall include a gross-up amount (the "Gross-Up Amount") such that, after the payment by Purchaser of all federal, state, and local income taxes imposed on or with respect to the receipt of such indemnity payment, the Purchaser retains a net after-tax amount equal to the full amount of the Indemnified Tax Loss (including the ba

Section 2.4 Aggregate Cap. Notwithstanding anything to the contrary in this Agreement, the aggregate cumulative liability of CBR under this Article II shall not exceed the Cap, which is Sixty-Nine Million Dollars ($69,000,000). The Cap was calculated as one hundred twenty-five percent (125%) of the Aggregate Purchase Price, as follows: Cap = $55,200,000 × 1.25 = $69,000,000 The Cap shall apply to the cumulative total

Section 2.5 Payment Timing. CBR shall make any indemnity payment required under this Article II within thirty (30) calendar days after the earlier of: (a) the date on which there is a "final determination" (within the meaning of Section 1313(a) of the Code) giving rise to the Indemnified Tax Loss, including (without limitation) a decision by the United States Tax Court that has become final, a closing agreement enter

Section 2.6 No Duplication. To the extent that Purchaser actually recovers any amount from any third party (including, without limitation, any insurance carrier, the EPC Contractor, or any other Person obligated to Purchaser pursuant to any separate indemnification, guarantee, warranty, or insurance arrangement) with respect to the same Indemnified Tax Loss for which CBR has made or is obligated to make an indemnity

Section 2.7 Right of Offset. Without prejudice to any other rights or remedies available to Purchaser, Purchaser shall have the right, upon thirty (30) days' prior written notice to CBR, to offset any amounts owed by CBR to Purchaser under this Agreement against any amounts otherwise payable by Purchaser to CBR under the TCPA or any other Transaction Document. Such written notice shall specify the basis for the offse

ARTICLE III REPRESENTATIONS AND WARRANTIES OF CBR CBR hereby represents and warrants to Purchaser as of the Signing Date and as of the Closing Date as follows:

Section 3.1 Organization and Good Standing. CBR is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas, Texas Secretary of State File No. 803762114. CBR is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the ownership of its properties or the conduct of its business requires such qualification or licensing, except wh

Section 3.2 Authority and Enforceability. CBR has full corporate power and authority to execute, deliver, and perform this Agreement and each other Transaction Document to which it is a party, and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance by CBR of this Agreement and each such other Transaction Document have been duly authorized by all necessary corporate

Section 3.3 No Conflicts. The execution, delivery, and performance by CBR of this Agreement, and the consummation of the transactions contemplated hereby, do not and will not (a) violate or conflict with the Articles of Incorporation or Bylaws of CBR, (b) violate or conflict with any applicable law, statute, regulation, rule, order, judgment, or decree of any Governmental Authority binding upon CBR or any of its prop

Section 3.4 ITC Eligibility. Each Project constitutes, or upon achievement of its COD will constitute, "energy property" within the meaning of Section 48(a)(3) of the Code. Each Project has been or will be "placed in service" within the meaning of Section 48 of the Code and applicable Treasury Regulations on or before December 31, 2023. The aggregate eligible basis of the Projects (determined in accordance with Secti

Section 3.5 Prevailing Wage and Apprenticeship Compliance. All construction, alteration, and repair work on the Projects has been performed, and will continue to be performed, in compliance with the prevailing wage requirements set forth in IRA Section 45(b)(7) (as applied through Section 48(a) of the Code) and the apprenticeship requirements set forth in IRA Section 45(b)(8) (as applied through Section 48(a) of the

Section 3.6 Domestic Content. The Projects satisfy the domestic content requirements of Section 48(a)(12) of the Code and applicable IRS guidance, including IRS Notice 2023-38 and any successor guidance, notices, or regulations. Specifically, all steel and iron components incorporated into the Projects were produced in the United States (including all stages of the manufacturing process, from initial melting through

Section 3.7 Transfer Election Validity. Each applicable Project Company (or the Partnership, as the case may be) is an "eligible taxpayer" entitled to make a Transfer Election under Section 6418 of the Code and applicable Treasury Regulations or IRS guidance (including IRS proposed regulations under Section 6418 published at 88 Fed. Reg. 40528 (June 21, 2023), and any final regulations). Pinehurst Insurance Group, In

Section 3.8 No Recapture Events. No Recapture Event has occurred with respect to any Project or any portion of the Transferred Credits as of the Signing Date. CBR is not aware of any facts, circumstances, events, or conditions that exist as of the Signing Date that would reasonably be expected to give rise to a Recapture Event during the Recapture Period. No Project Company has sold, exchanged, disposed of, or otherw

Section 3.9 No Prior Transfers or Encumbrances on Credits. The Transferred Credits have not been previously sold, assigned, transferred, pledged, encumbered, hypothecated, or otherwise disposed of to any Person other than Purchaser pursuant to the TCPA. No Person other than Purchaser has any right, title, interest, lien, security interest, encumbrance, or claim of any kind with respect to the Transferred Credits. CBR

Section 3.10 Tax Returns and Compliance. CBR and each Project Company have filed (or will timely file, taking into account any valid extensions) all federal, state, and local tax returns required to be filed by them as of the Signing Date. All such tax returns are true, correct, and complete in all material respects. All taxes due and payable with respect to such tax returns have been timely paid or will be timely pa

Section 3.11 No Litigation. As of the Signing Date, no litigation, action, suit, proceeding, claim, or governmental investigation is pending or, to the knowledge of CBR, threatened against CBR, any Project Company, the Partnership, or any of the Projects that could reasonably be expected to adversely affect the validity, availability, or amount of the Transferred Credits, or the ability of CBR to perform its obligati

Section 4.1 Maintenance of Qualified Use. CBR shall cause each Project Company to maintain and operate each Project as "energy property" within the meaning of Section 48 of the Code throughout the applicable Recapture Period. Without limiting the generality of the foregoing, during each Project's Recapture Period, CBR shall not, and shall cause each Project Company not to, without the prior written consent of Purchas

Section 4.2 Continued Compliance with Prevailing Wage and Apprenticeship Requirements. CBR shall maintain and preserve all records relating to prevailing wage and apprenticeship compliance for each Project for a period of not less than seven (7) years following the date each applicable Project is placed in service. Such records shall include, without limitation, certified payroll records, apprenticeship program docum

Section 4.3 Domestic Content Compliance. CBR shall maintain and preserve all records and documentation substantiating the domestic content qualification of each Project under Section 48(a)(12) of the Code and applicable IRS guidance for a period of not less than seven (7) years following the date each applicable Project is placed in service. Such records shall include, without limitation, supplier certifications, bil

Section 4.4 Transfer Election Filings. CBR shall cause each applicable Project Company to timely prepare and file the Transfer Election Statement with such Project Company's federal income tax return (or the Partnership's federal income tax return, as applicable) for the taxable year in which the applicable Project is placed in service. CBR shall ensure that all Transfer Election Statements are complete, accurate, an

Section 4.5 Notice of Recapture or Disallowance Events. CBR shall promptly notify Purchaser in writing (in no event later than five (5) business days after CBR becomes aware of such event) of: (a) any event, occurrence, or circumstance that has occurred or that could reasonably be expected to constitute a Recapture Event or a Disallowance Event; (b) any inquiry, audit, examination, notice of deficiency, notice of pro

Section 4.6 Cooperation with Tax Proceedings. CBR shall fully cooperate with Purchaser in connection with any IRS audit, examination, dispute, administrative proceeding, or judicial proceeding relating to the Transferred Credits or any matter that could give rise to an Indemnified Tax Loss. Such cooperation shall include, without limitation: (a) providing Purchaser and its advisors with access to all relevant books,

Section 4.7 Insurance. CBR shall maintain, or shall cause the applicable Project Company or the Partnership to maintain, at all times during the Recapture Period, insurance coverage on terms and in amounts no less favorable than those required by the LLCA, including (without limitation): (a) property (all-risk) insurance for each Project, placed by Sentinel Underwriters, Inc. with Fortis Indemnity Company (or a repla

Section 4.8 Tax Contest Provisions. In the event that Purchaser receives notice of any IRS audit, examination, proposed adjustment, or administrative or judicial proceeding relating to or affecting the Transferred Credits: (a) Notice. Purchaser shall promptly notify CBR in writing (in no event later than ten (10) business days after receipt of such notice) of the nature and substance of such audit, examination, or pr

Section 4.9 Annual Compliance Certifications. On each anniversary of the Closing Date during the Recapture Period (and, with respect to the final certification, on or before the date that is thirty (30) days following the expiration of the last Recapture Period), CBR shall deliver to Purchaser an annual compliance certificate substantially in the form set forth in Exhibit C hereto (an "Annual Compliance Certificate")

Section 4.10 Restrictions on Transfer of Obligations. CBR shall not assign, delegate, or otherwise transfer any of its obligations under this Agreement to any other Person without the prior written consent of Purchaser, which consent may be granted or withheld in Purchaser's sole discretion. Any purported assignment, delegation, or transfer in violation of this Section 4.10 shall be null and void and of no force or e

Section 5.1 Survival Period. The representations, warranties, covenants, and indemnification obligations of CBR under this Agreement shall survive the execution and delivery of this Agreement, the Closing Date, and the consummation of the transactions contemplated by the TCPA and the other Transaction Documents, and shall remain in full force and effect until the date that is sixty (60) days following the expiration

Section 5.2 Termination. This Agreement shall terminate upon the later of: (a) the expiration of the Survival Period, provided that no claims under this Agreement are pending or unresolved as of such date; and (b) the date on which all pending claims under this Agreement have been finally resolved and all indemnity payments required under this Agreement have been made in full. Upon termination of this Agreement, the

ARTICLE VI LIMITATIONS ON LIABILITY

Section 6.1 Aggregate Cap. As set forth in Section 2.4, CBR's aggregate cumulative liability under Article II of this Agreement shall not exceed the Cap of Sixty-Nine Million Dollars ($69,000,000), being one hundred twenty-five percent (125%) of the Aggregate Purchase Price of Fifty-Five Million Two Hundred Thousand Dollars ($55,200,000) (i.e., $55,200,000 × 1.25 = $69,000,000). The Cap shall apply to the cumulative

Section 6.2 Sole Remedy. Except in the case of fraud, willful misconduct, or criminal conduct, this Agreement and the indemnification provisions set forth in the TCPA shall provide the sole and exclusive remedy of Purchaser and the other Indemnified Parties with respect to any claim arising out of or relating to any ITC recapture, disallowance, reduction, or other unavailability of the Transferred Credits, and no Ind

Section 6.3 Mitigation. Each Party shall use commercially reasonable efforts to mitigate any losses, damages, or costs that may give rise to, or increase the amount of, an Indemnified Tax Loss. Without limiting the generality of the foregoing: (a) Purchaser shall take all reasonable steps to preserve the benefit of the Transferred Credits, including timely filing all federal income tax returns claiming such credits i

Section 6.4 No Consequential Damages. EXCEPT TO THE EXTENT THAT ANY SUCH DAMAGES (A) ARE INCLUDED IN THE GROSS-UP AMOUNT CALCULATED IN ACCORDANCE WITH SECTION 2.3, (B) ARE PAYABLE TO A TAXING AUTHORITY (INCLUDING, WITHOUT LIMITATION, ANY PENALTIES, INTEREST, OR ADDITIONS TO TAX ASSESSED BY THE IRS), OR (C) ARISE FROM FRAUD, WILLFUL MISCONDUCT, OR CRIMINAL CONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR

ARTICLE VII DISPUTE RESOLUTION

Section 7.1 Negotiation. In the event of any dispute, controversy, or claim arising out of or relating to this Agreement, including (without limitation) any dispute regarding the interpretation, breach, termination, or validity of this Agreement (a "Dispute"), the Parties shall first attempt in good faith to resolve such Dispute through direct negotiations between senior executives of the Parties having authority to

Section 7.2 Independent Tax Expert. If a Dispute relates primarily to a tax calculation, a technical tax issue, or the determination of whether a particular event constitutes a Recapture Event or Disallowance Event (a "Tax Dispute"), and such Tax Dispute has not been resolved during the Negotiation Period, either Party may, by written notice to the other Party, propose that the Parties jointly engage an independent,

Section 7.3 Litigation. Any Dispute that is not resolved pursuant to Sections 7.1 or 7.2 (including any Dispute that is not a Tax Dispute) shall be submitted exclusively to the courts of the State of New York sitting in New York County, or the United States District Court for the Southern District of New York. Each Party hereby irrevocably and unconditionally (a) submits to the exclusive jurisdiction of such courts f