1015-00005 · Calloway-Briggs Renewables Inc · Transaction Documents

intercompany-contribution-agreement.docx DOCUMENT M&A / Corporate

29 / 37 ← → ✕

Contract analysis Extract to table

INTERCOMPANY CONTRIBUTION AGREEMENT

Dated as of September 21, 2023

by and between

CALLOWAY-BRIGGS RENEWABLES INC., a Texas corporation ("Contributor")

and

SOLSTICE HOLDINGS, LLC, a Delaware limited liability company ("Recipient")

In connection with the Solstice Portfolio Tax-Equity and Transferable-Credit Financing Transaction

Right-click to update Table of Contents

INTERCOMPANY CONTRIBUTION AGREEMENT

This INTERCOMPANY CONTRIBUTION AGREEMENT (this "Agreement") is made and entered into as of September 21, 2023, by and between CALLOWAY-BRIGGS RENEWABLES INC., a Texas corporation ("Contributor" or "CBR"), and SOLSTICE HOLDINGS, LLC, a Delaware limited liability company ("Recipient" or the "Partnership"). Contributor and Recipient are sometimes referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS:

A. Calloway-Briggs Renewables Inc. is a corporation duly organized and validly existing under the laws of the State of Texas (Employer Identification Number: 84-3291076; Texas Secretary of State File No.: 803762114), with its principal executive offices located at 2700 Post Oak Boulevard, Suite 1450, Houston, Texas 77056. CBR is engaged in the business of developing, owning, financing, constructing, and operating utility-scale solar photovoltaic generation projects throughout the southwestern United States, and has developed and maintained a portfolio of renewable energy assets representing significant investment in the domestic clean energy sector;

B. Solstice Holdings, LLC is a limited liability company duly formed and validly existing under the laws of the State of Delaware (Employer Identification Number: 88-4071523), formed on August 14, 2023, and maintaining its registered agent at Cascade Systems, 160 Greentree Drive, Suite 101, Dover, Delaware 19904. Solstice Holdings is, and at all times since its formation has been, classified as a partnership for federal income tax purposes pursuant to Treasury Regulations Section 301.7701-3;

C. CBR Solstice Manager, LLC, a Delaware limited liability company (Employer Identification Number: 88-4071597), is a wholly owned subsidiary of Contributor, formed on August 14, 2023, under the laws of the State of Delaware, and serves as the Managing Member of Solstice Holdings, LLC pursuant to the organizational documents of Solstice Holdings;

D. Ridgeline Capital Partners, LLC, a Delaware limited liability company (Employer Identification Number: 13-4827651), with its principal offices located at 390 Park Avenue, 22nd Floor, New York, New York 10022, will serve as the Tax-Equity Member of Solstice Holdings pursuant to the Amended and Restated Limited Liability Company Agreement of Solstice Holdings, LLC dated as of September 21, 2023 (the "LLCA"), and will make a capital contribution of One Hundred Twenty Million Dollars ($120,000,000) to Solstice Holdings in connection with the transactions contemplated by the LLCA and the related Transaction Documents;

E. Contributor is the sole member and owner of one hundred percent (100%) of the membership interests (each, a "Project Company Interest" and collectively, the "Contributed Interests") in each of the following seven (7) Delaware limited liability companies (each, a "Project Company" and collectively, the "Project Companies"), each of which is treated as a disregarded entity for federal income tax purposes and each of which holds a utility-scale solar photovoltaic project:

The foregoing seven (7) Project Companies collectively own and operate solar photovoltaic generation assets with an aggregate nameplate capacity of four hundred twenty megawatts direct current (420 MW(dc)) (the "Solstice Portfolio");

F. The contribution of the Contributed Interests pursuant to this Agreement is being made in connection with a One Hundred Eighty Million Dollar ($180,000,000) tax-equity and transferable tax-credit financing transaction (the "Transaction") comprising: (i) a One Hundred Twenty Million Dollar ($120,000,000) partnership-flip tax-equity investment by Ridgeline Capital Partners, LLC into Solstice Holdings, LLC; and (ii) a sale and transfer of Sixty Million Dollars ($60,000,000) face-value Investment Tax Credits to Pinehurst Insurance Group, Inc. pursuant to Section 6418 of the Internal Revenue Code of 1986, as amended;

G. The seven (7) Project Companies have entered into a Master Engineering, Procurement, and Construction Agreement (the "EPC Agreement") with Vasquez Brothers Construction, Inc. (Employer Identification Number: 75-2648103), a Texas corporation, providing for aggregate engineering, procurement, and construction costs of Three Hundred Eighty-Four Million Six Hundred Thousand Dollars ($384,600,000), which costs constitute a substantial portion of the eligible basis for purposes of determining Investment Tax Credits under Section 48 of the Internal Revenue Code of 1986, as amended;

H. The Parties intend that the contribution of the Contributed Interests by Contributor to Recipient pursuant to this Agreement shall qualify as a tax-free contribution of property to a partnership in exchange for a partnership interest under Section 721 of the Internal Revenue Code of 1986, as amended (the "Code"), and that no gain or loss shall be recognized by either Party as a result of such contribution;

I. In exchange for the contribution of the Contributed Interests, Contributor (acting through its wholly owned subsidiary, CBR Solstice Manager, LLC) will receive its membership interest in Solstice Holdings, LLC as set forth in the LLCA, and CBR Solstice Manager, LLC will make a cash capital contribution of Two Million Four Hundred Thousand Dollars ($2,400,000) to Solstice Holdings, representing two percent (2%) of Ridgeline Capital Partners' One Hundred Twenty Million Dollar ($120,000,000) capital contribution, consistent with the minimum investment requirements described in Revenue Procedure 2007-65; and

J. This Agreement is being entered into concurrently with: (i) the LLCA; (ii) the Tax Credit Purchase Agreement between CBR and Pinehurst Insurance Group, Inc. dated as of September 21, 2023 (the "TCPA"); (iii) the Capital Contribution Agreement between Ridgeline Capital Partners, LLC and Solstice Holdings, LLC dated as of September 21, 2023 (the "Capital Contribution Agreement"); (iv) the Tax Indemnity Agreement; (v) the Escrow Agreement; (vi) the Purchase Option Agreement; (vii) the Back-Leverage Intercreditor and Consent Agreement; (viii) the Pledge Agreement; and (ix) other ancillary transaction documents, each as more fully described herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE I — DEFINITIONS

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 Article I shall have the meanings ascribed to them elsewhere in this Agreement or, to the extent not defined herein, in the LLCA.

"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 Person. For purposes of this definition, "control" (including the correlative terms "controlling," "controlled by," and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or other equity interests, by contract, or otherwise. Notwithstanding the foregoing, for purposes of this Agreement, neither Ridgeline Capital Partners, LLC nor Pinehurst Insurance Group, Inc. shall be deemed an Affiliate of Contributor solely by reason of its membership interest in or contractual relationship with Solstice Holdings, LLC.

"Amended and Restated LLC Agreement" or "LLCA" means the Amended and Restated Limited Liability Company Agreement of Solstice Holdings, LLC, dated as of September 21, 2023, by and among CBR Solstice Manager, LLC, as Managing Member, and Ridgeline Capital Partners, LLC, as Tax-Equity Member, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms.

"Business Day" means any day other than a Saturday, a Sunday, or a day on which commercial banks in New York, New York or Houston, Texas are authorized or required by law to close.

"Capital Contribution Agreement" means the Capital Contribution Agreement, dated as of September 21, 2023, by and between Ridgeline Capital Partners, LLC and Solstice Holdings, LLC, providing for Ridgeline's capital contribution of One Hundred Twenty Million Dollars ($120,000,000) to Solstice Holdings in connection with the Transaction.

"Closing" means the closing of the transactions contemplated by this Agreement, the LLCA, and the related Transaction Documents, as described in Article III hereof.

"Closing Date" means the date on which the Closing actually occurs, which is currently scheduled for November 30, 2023, subject to extension in accordance with this Agreement.

"Code" means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder. Any reference to a specific provision of the Code shall include any successor provision thereto and any Treasury Regulation promulgated under such provision.

"COD" or "Commercial Operation Date" means, with respect to each Project, the date on which such Project achieves commercial operation, as defined in the applicable Power Purchase Agreement and as confirmed by the independent engineer.

"Contributed Interests" means one hundred percent (100%) of the membership interests in each of the seven (7) Project Companies, as more particularly described in Section 2.1 and Schedule 2.1 hereto.

"Contributor" means Calloway-Briggs Renewables Inc., a Texas corporation.

"Disclosure Schedules" means the disclosure schedules delivered by Contributor to Recipient concurrently with the execution and delivery of this Agreement, as the same may be updated prior to Closing with the consent of Recipient.

"Enchantment Power Cooperative" means Enchantment Power Cooperative, an electric cooperative organized under the laws of the State of New Mexico, which is the counterparty to the Power Purchase Agreements for the Cimarron Solar and Sandoval Ridge Solar projects.

"Encumbrance" means any lien, pledge, mortgage, deed of trust, security interest, charge, claim, community property interest, equitable interest, option, right of first refusal, right of first offer, restriction on transfer, restriction on use, condition, easement, encroachment, covenant, condition, or restriction, or any other encumbrance of any kind or nature whatsoever, whether voluntary or involuntary, choate or inchoate, perfected or unperfected, and whether arising by agreement, operation of law, or otherwise.

"EPC Agreement" means the Master Engineering, Procurement, and Construction Agreement, dated as of May 15, 2023, by and between Contributor (on behalf of the Project Companies) and Vasquez Brothers Construction, Inc. (Employer Identification Number: 75-2648103), a Texas corporation, providing for the engineering, procurement, and construction of the Solstice Portfolio for aggregate costs of Three Hundred Eighty-Four Million Six Hundred Thousand Dollars ($384,600,000), as the same may be amended or supplemented from time to time.

"ERCOT" means the Electric Reliability Council of Texas, Inc., the independent system operator for the majority of the electric grid in the State of Texas.

"Escrow Agreement" means the Escrow Agreement entered into in connection with the Transaction, providing for the escrow of certain funds pending satisfaction of conditions precedent to the funding of Ridgeline's capital contribution.

"FAA" means the Federal Aviation Administration of the United States Department of Transportation.

"Fundamental Representations" means the representations and warranties set forth in Sections 4.1 (Organization and Good Standing), 4.2 (Authorization), 4.4 (Title to Contributed Interests), 4.10 (Tax Matters), 5.1 (Organization and Good Standing), 5.2 (Authorization), and 5.5 (Tax Treatment).

"Governmental Authority" means any government or political subdivision thereof, whether federal, state, county, local, municipal, or foreign, or any agency, authority, board, bureau, commission, department, office, public utility, instrumentality, or other regulatory body or entity of any of the foregoing, including any court, tribunal, or arbitral body of competent jurisdiction, and including ERCOT, the Public Utility Commission of Texas, the New Mexico Public Regulation Commission, and any successor entities thereto.

"IRA" means the Inflation Reduction Act of 2022 (Pub. L. 117-169).

"ITC" or "Investment Tax Credit" means the energy investment tax credit available under Section 48 of the Code, as amended by the IRA, including the base credit amount and any bonus credit amounts applicable thereto.

"Knowledge" means, with respect to Contributor, the actual knowledge of Marcus Calloway (Chairman & CEO), Theo Vasquez (CFO), and Priya Anand (VP, Project Finance), in each case after reasonable inquiry of direct reports with primary responsibility for the relevant subject matter.

"Lone Star Grid Solutions, LLC" means Lone Star Grid Solutions, LLC, a Texas limited liability company, which is the counterparty to the Power Purchase Agreements for the five Texas projects in the Solstice Portfolio.

"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, penalties, fines, costs, or expenses (including reasonable attorneys' fees and expenses, expert witness fees, and costs of investigation and litigation), whether or not involving a third-party claim.

"Material Adverse Effect" means any event, change, circumstance, occurrence, effect, or development that, individually or in the aggregate with all other events, changes, circumstances, occurrences, effects, or developments, has had or would reasonably be expected to have a material adverse effect on (a) the assets, liabilities, financial condition, results of operations, or business of any Project Company, taken as a whole, (b) the ability of Contributor to consummate the transactions contemplated by this Agreement, or (c) the eligibility of any Project for ITC; provided, however, that none of the following, individually or in the aggregate, shall be deemed to constitute, or shall be taken into account in determining whether there has been, a Material Adverse Effect: (i) changes in general economic, business, financial, or market conditions; (ii) changes in conditions generally affecting the solar photovoltaic industry; (iii) changes in applicable law or accounting standards; (iv) the announcement or pendency of the transactions contemplated hereby; (v) acts of war, terrorism, or natural disasters, except to the extent disproportionately affecting the Projects; or (vi) weather-related delays in construction not exceeding forty-five (45) days in the aggregate.

"Offtake Agreements" or "PPAs" or "Power Purchase Agreements" means, collectively, the power purchase agreements between the applicable Project Companies and the applicable offtake purchasers, consisting of: (a) the Power Purchase Agreements with Lone Star Grid Solutions, LLC for the five Texas projects (Pecos Sun Solar, Red Mesa Solar, Coyote Flats Solar, Llano Verde Solar, and Amistad Solar), providing for a weighted-average contract price of Thirty-Two Dollars and Fifty Cents per megawatt-hour ($32.50/MWh), with a one and one-half percent (1.5%) annual price escalator, for a term of fifteen (15) years from each respective COD; and (b) the Power Purchase Agreements with Enchantment Power Cooperative for the two New Mexico projects (Cimarron Solar and Sandoval Ridge Solar), providing for a weighted-average contract price of Twenty-Nine Dollars and Seventy-Five Cents per megawatt-hour ($29.75/MWh), with a two percent (2.0%) annual price escalator, for a term of twenty (20) years from each respective COD.

"Osprey Construction Facility" means the Two Hundred Forty-Five Million Dollar ($245,000,000) construction-to-term loan facility under Agreement No. ONB-PF-2022-0341 with Osprey National Bank, N.A., as administrative agent and lender, pursuant to which the Project Companies have obtained financing for the construction of the Projects.

"Outside Date" means December 31, 2023, or such later date as the Parties may agree in writing.

"Permitted Encumbrances" means: (a) liens securing obligations of the Project Companies under the Osprey Construction Facility (Agreement No. ONB-PF-2022-0341), including UCC-1 financing statements filed by Osprey National Bank, N.A. against the Project Companies; (b) standard utility and transmission easements and rights-of-way recorded in the applicable county in which each Project is located, as set forth in Schedule 4.4 hereto; (c) real property encumbrances and other title matters identified in the Real Property and Lease Diligence Summary prepared by Derek Saunders; (d) liens for taxes not yet due and payable or being contested in good faith by appropriate proceedings; (e) mechanics', materialmen's, and similar statutory liens arising in the ordinary course of construction, provided such liens are bonded or otherwise secured to the reasonable satisfaction of Recipient; and (f) such other encumbrances as may be set forth in Schedule 4.4 hereto.

"Person" means any individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization, Governmental Authority, or any other legal entity.

"Pinehurst Insurance Group, Inc." means Pinehurst Insurance Group, Inc., a North Carolina corporation, which is the purchaser of transferable Investment Tax Credits pursuant to the Tax Credit Purchase Agreement.

"Pledge Agreement" means the Pledge Agreement entered into in connection with the Transaction, pursuant to which certain membership interests are pledged to secure obligations under the Transaction Documents.

"Project" means, with respect to each Project Company, the utility-scale solar photovoltaic generation project owned and operated by such Project Company, as more particularly described in the Recitals and Schedule 2.1 hereto.

"Project Companies" means, collectively, Pecos Sun Solar, LLC; Red Mesa Solar, LLC; Coyote Flats Solar, LLC; Llano Verde Solar, LLC; Cimarron Solar, LLC; Sandoval Ridge Solar, LLC; and Amistad Solar, LLC, each a Delaware limited liability company.

"Purchase Option Agreement" means the Purchase Option Agreement entered into in connection with the Transaction, providing the Managing Member or its Affiliate with the option to purchase Ridgeline's interest in Solstice Holdings following the flip date, as defined in the LLCA.

"Recipient" means Solstice Holdings, LLC, a Delaware limited liability company.

"Ridgeline" means Ridgeline Capital Partners, LLC, a Delaware limited liability company.

"Section 721 Contribution" means the contribution of the Contributed Interests by Contributor to Recipient as contemplated by this Agreement, which is intended to qualify as a tax-free contribution under Section 721(a) of the Code.

"Solstice Portfolio" means, collectively, the seven (7) solar photovoltaic generation projects owned by the Project Companies, having an aggregate nameplate capacity of four hundred twenty megawatts direct current (420 MW(dc)).

"Tax Credit Purchase Agreement" or "TCPA" means the Tax Credit Purchase Agreement, dated as of September 21, 2023, by and between Calloway-Briggs Renewables Inc. (or its designee) and Pinehurst Insurance Group, Inc., providing for the sale and transfer of Sixty Million Dollars ($60,000,000) face-value Investment Tax Credits pursuant to Section 6418 of the Code.

"Tax Indemnity Agreement" means the Tax Indemnity Agreement entered into in connection with the Transaction, pursuant to which Contributor and/or the Managing Member provides certain tax-related indemnities to Ridgeline Capital Partners, LLC.

"Transaction Documents" means, collectively, this Agreement, the LLCA, the Capital Contribution Agreement, the TCPA, the Tax Indemnity Agreement, the Escrow Agreement, the Purchase Option Agreement, the Back-Leverage Intercreditor and Consent Agreement, the Pledge Agreement, and all other agreements, instruments, certificates, and documents entered into or delivered in connection with the transactions contemplated hereby, in each case as the same may be amended, restated, supplemented, or otherwise modified from time to time.

"Treasury Regulations" means the temporary and final regulations of the United States Department of the Treasury promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

"Vasquez Brothers Construction, Inc." means Vasquez Brothers Construction, Inc. (Employer Identification Number: 75-2648103), a Texas corporation, which is the engineering, procurement, and construction contractor for the Solstice Portfolio under the EPC Agreement.

Section 1.2 — Rules of Construction. Unless the context of this Agreement otherwise requires: (a) words of any gender include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms "hereof," "herein," "hereby," "hereto," and derivative or similar words refer to this entire Agreement; (d) the terms "Article," "Section," "Schedule," and "Exhibit" refer to the specified Article, Section, Schedule, or Exhibit of or to this Agreement, unless otherwise specified; (e) the word "including" shall mean "including, without limitation"; (f) references to any Person include such Person's successors and permitted assigns; (g) references to any law, statute, rule, or regulation include any amendment, modification, or replacement thereof and any rules, regulations, and interpretive guidance issued thereunder, in each case as in effect from time to time; (h) references to any Section of the Code shall include any successor provision thereto and any Treasury Regulation promulgated under such Section; (i) the word "or" is not exclusive; (j) the word "extent" in the phrase "to the extent" means the degree to which a subject or other thing extends, and such phrase does not mean simply "if"; (k) all dollar amounts are expressed in United States Dollars; and (l) the headings and table of contents contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The Parties have participated jointly in the negotiation and drafting of this Agreement, and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.

ARTICLE II — CONTRIBUTION

Section 2.1 — Contribution of Interests. Subject to the terms and conditions set forth in this Agreement, and in reliance upon the representations, warranties, covenants, and agreements contained herein, at the Closing, Contributor hereby agrees to contribute, assign, transfer, convey, and deliver to Recipient, and Recipient hereby agrees to accept from Contributor, free and clear of all Encumbrances other than Permitted Encumbrances, one hundred percent (100%) of the membership interests in each of the following Project Companies:

(a) one hundred percent (100%) of the membership interests in Pecos Sun Solar, LLC, a Delaware limited liability company, owning and developing an eighty-five megawatt direct current (85 MW(dc)) solar photovoltaic project located in Reeves County, Texas;

(b) one hundred percent (100%) of the membership interests in Red Mesa Solar, LLC, a Delaware limited liability company, owning and developing a seventy megawatt direct current (70 MW(dc)) solar photovoltaic project located in Pecos County, Texas;

(c) one hundred percent (100%) of the membership interests in Coyote Flats Solar, LLC, a Delaware limited liability company, owning and developing a sixty-five megawatt direct current (65 MW(dc)) solar photovoltaic project located in Ward County, Texas;

(d) one hundred percent (100%) of the membership interests in Llano Verde Solar, LLC, a Delaware limited liability company, owning and developing a fifty-five megawatt direct current (55 MW(dc)) solar photovoltaic project located in Hudspeth County, Texas;

(e) one hundred percent (100%) of the membership interests in Cimarron Solar, LLC, a Delaware limited liability company, owning and developing a fifty megawatt direct current (50 MW(dc)) solar photovoltaic project located in Lea County, New Mexico;

(f) one hundred percent (100%) of the membership interests in Sandoval Ridge Solar, LLC, a Delaware limited liability company, owning and developing a fifty megawatt direct current (50 MW(dc)) solar photovoltaic project located in Sandoval County, New Mexico; and

(g) one hundred percent (100%) of the membership interests in Amistad Solar, LLC, a Delaware limited liability company, owning and developing a forty-five megawatt direct current (45 MW(dc)) solar photovoltaic project located in Val Verde County, Texas.

The Contributed Interests are more particularly described in Schedule 2.1 attached hereto. The contribution effected pursuant to this Section 2.1 shall include, without limitation, all rights and obligations of Contributor as sole member of each Project Company, including all economic, governance, voting, consent, information, and other rights associated with the Contributed Interests.

Section 2.2 — Consideration. In consideration of the contribution of the Contributed Interests by Contributor to Recipient pursuant to Section 2.1 hereof:

(a) Recipient hereby issues to CBR Solstice Manager, LLC (as Contributor's designee and the Managing Member of Recipient) the Managing Member Interest in Solstice Holdings, LLC, as such interest is defined, and with the rights, preferences, obligations, and characteristics set forth, in the LLCA; and

(b) CBR Solstice Manager, LLC shall make a cash capital contribution of Two Million Four Hundred Thousand Dollars ($2,400,000) to Solstice Holdings, LLC on or prior to the Closing Date, which cash capital contribution represents two percent (2%) of Ridgeline Capital Partners' One Hundred Twenty Million Dollar ($120,000,000) capital contribution, consistent with the minimum investment requirements described in Revenue Procedure 2007-65 for the Managing Member's investment in a partnership-flip tax-equity structure.

The Parties acknowledge and agree that the foregoing consideration constitutes the entire consideration payable by Recipient to Contributor in connection with the contribution contemplated by this Agreement, and that such consideration is fair and adequate.

Section 2.3 — Tax Treatment.

(a) The Parties intend and agree that the contribution of the Contributed Interests by Contributor to Recipient pursuant to this Agreement shall be treated as a contribution of property to a partnership in exchange for a partnership interest under Section 721(a) of the Code, and that no gain or loss shall be recognized by Contributor or Recipient as a result of such contribution.

(b) The initial tax basis of the Contributed Interests in the hands of Recipient shall be determined under Section 723 of the Code, which provides that the basis of property contributed to a partnership by a partner shall be the adjusted basis of such property to the contributing partner at the time of the contribution (carryover basis).

(c) Contributor's tax basis in its partnership interest received in connection with the contribution (held through CBR Solstice Manager, LLC) shall be determined under Section 722 of the Code, which provides that the basis of an interest in a partnership acquired by a contribution of property, including money, to the partnership shall be the amount of such money and the adjusted basis of such property to the contributing partner at the time of the contribution, increased by the amount (if any) of gain recognized under Section 721(b) of the Code to the contributing partner at such time.

(d) The Parties agree not to take any position inconsistent with the treatment described in this Section 2.3 on any tax return, amended tax return, claim for refund, or in any administrative or judicial proceeding, unless otherwise required by a final determination (as defined in Section 1313 of the Code) or a change in applicable law after the date hereof.

(e) The Parties acknowledge that, following the contribution, each Project Company will continue to be treated as a disregarded entity for federal income tax purposes, with Solstice Holdings, LLC (as a partnership for federal income tax purposes) being treated as the owner of the assets and liabilities of each Project Company for federal income tax purposes.

Section 2.4 — Effective Time. The contribution of the Contributed Interests shall be effective as of the Closing. Immediately upon the effectiveness of the Closing, Recipient shall be deemed the sole member of each Project Company, and all rights and obligations of Contributor as sole member of each Project Company shall be transferred to and assumed by Recipient. The Parties agree to take all steps necessary and appropriate to update the books, records, and organizational documents of each Project Company to reflect Recipient as the sole member of each Project Company effective as of the Closing Date.

ARTICLE III — CLOSING

Section 3.1 — Closing. The Closing of the transactions contemplated by this Agreement shall take place simultaneously with the closing of the transactions contemplated by the LLCA, the Capital Contribution Agreement, the Tax Credit Purchase Agreement, and the other Transaction Documents, at such time, date, and place (including by electronic exchange of documents and signatures) as the Parties may agree in writing. The Closing is currently anticipated to occur on or about November 30, 2023, or such later date as the Parties may agree in writing; provided that the Closing shall occur no later than the Outside Date. The Parties acknowledge that the actual Closing occurred on December 8, 2023, following an eight (8)-day extension of the originally anticipated closing date, which extension was necessitated by the pending receipt of the final interconnection confirmation from the Electric Reliability Council of Texas for the Amistad Solar project, which confirmation was received on December 6, 2023. All transactions occurring at the Closing shall be deemed to have occurred simultaneously, and no transaction shall be deemed to have been completed or any document delivered until all transactions have been completed and all documents have been delivered.

Section 3.2 — Deliverables of Contributor at Closing. At or prior to the Closing, Contributor shall deliver, or cause to be delivered, to Recipient each of the following:

(a) duly executed assignments of membership interest for each of the seven (7) Project Companies, substantially in the form attached hereto as Exhibit A, assigning, transferring, and conveying one hundred percent (100%) of the membership interests in each Project Company from Contributor to Recipient, in form and substance reasonably satisfactory to Recipient and Ridgeline Capital Partners, LLC;

(b) a Secretary's Certificate of Calloway-Briggs Renewables Inc., executed by the Secretary or Assistant Secretary of Contributor, certifying: (i) resolutions of the Board of Directors of Contributor authorizing the execution, delivery, and performance of this Agreement and the other Transaction Documents to which Contributor is a party, and the consummation of the transactions contemplated hereby and thereby; (ii) the incumbency and specimen signatures of the officers of Contributor executing this Agreement and the other Transaction Documents; and (iii) the certificate of formation and bylaws (or equivalent organizational documents) of Contributor, each as in effect as of the Closing Date;

(c) an Officer's Closing Certificate of Calloway-Briggs Renewables Inc., substantially in the form attached hereto as Exhibit B, executed by Theo Vasquez, Chief Financial Officer of Contributor, certifying: (i) the accuracy and completeness of the representations and warranties of Contributor set forth in Article IV as of the Closing Date (or, in the case of representations and warranties that are made as of a specified date, as of such specified date); and (ii) the performance by Contributor of all covenants and agreements required to be performed by Contributor prior to or at the Closing;

(d) a certificate of good standing (or equivalent certificate) for Calloway-Briggs Renewables Inc. issued by the Texas Secretary of State, dated not more than ten (10) Business Days prior to the Closing Date;

(e) certificates of good standing (or equivalent certificates) for each of the seven (7) Project Companies issued by the Delaware Secretary of State, each dated not more than ten (10) Business Days prior to the Closing Date;

(f) evidence, in form and substance reasonably satisfactory to Recipient, that all required third-party consents for the consummation of the transactions contemplated by this Agreement have been obtained, including: (i) the consent of Osprey National Bank, N.A. under the Osprey Construction Facility (Agreement No. ONB-PF-2022-0341); (ii) any consents required under the Power Purchase Agreements; and (iii) any consents required under the EPC Agreement;

(g) UCC-3 termination statements or amendments, as applicable, duly authorized by Osprey National Bank, N.A., with respect to Osprey's existing UCC-1 financing statement filings under the Osprey Construction Facility (Agreement No. ONB-PF-2022-0341), to the extent necessary to permit the contribution of the Contributed Interests free and clear of all Encumbrances other than Permitted Encumbrances, or, in the alternative, amendments to such UCC-1 filings to reflect the change in the debtor's organizational structure resulting from the contribution;

(h) true, correct, and complete copies of all organizational documents of each Project Company, including Certificates of Formation filed with the Delaware Secretary of State and Limited Liability Company Agreements, in each case as in effect as of the Closing Date;

(i) evidence, in form and substance reasonably satisfactory to Recipient, that each Project Company is duly qualified to do business and in good standing (or equivalent status) in the state in which its respective Project is located (the State of Texas for Pecos Sun Solar, LLC, Red Mesa Solar, LLC, Coyote Flats Solar, LLC, Llano Verde Solar, LLC, and Amistad Solar, LLC; and the State of New Mexico for Cimarron Solar, LLC and Sandoval Ridge Solar, LLC); and

(j) an updated schedule of Permitted Encumbrances, reflecting any changes to the liens and encumbrances set forth on Schedule 4.4 since the date of this Agreement.

Section 3.3 — Deliverables of Recipient at Closing. At or prior to the Closing, Recipient shall deliver, or cause to be delivered, to Contributor each of the following:

(a) evidence, in form and substance reasonably satisfactory to Contributor, of Recipient's acceptance of the Contributed Interests and the updating of Recipient's books and records to reflect Recipient as the sole member of each Project Company;

(b) a duly executed counterpart of this Agreement;

(c) a certificate of good standing (or equivalent certificate) for Solstice Holdings, LLC issued by the Delaware Secretary of State, dated not more than ten (10) Business Days prior to the Closing Date; and

(d) a duly executed counterpart of the LLCA, reflecting the contribution of the Contributed Interests and the admission of Ridgeline Capital Partners, LLC as the Tax-Equity Member of Solstice Holdings, LLC.

ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR

Contributor hereby represents and warrants to Recipient as of the date hereof and as of the Closing Date (except where a particular representation or warranty expressly speaks as of a specified date, in which case as of such specified date) as follows:

Section 4.1 — Organization and Good Standing. Contributor is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas (Texas Secretary of State File No. 803762114). Contributor has full corporate power and authority to own, lease, and operate its properties and assets, including the Contributed Interests, and to conduct its business as currently conducted and as proposed to be conducted. Contributor is duly qualified to transact business and is in good standing in each jurisdiction where the character of its properties owned or held under lease or the nature of its activities makes such qualification necessary, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have a Material Adverse Effect.

Section 4.2 — Authorization. The execution, delivery, and performance by Contributor of this Agreement and each of the other Transaction Documents to which Contributor is a party, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary corporate action on the part of Contributor, including, without limitation, approval by the Board of Directors of Contributor at a meeting duly called and held or by unanimous written consent in lieu of a meeting. No vote or approval of the stockholders of Contributor is required for the execution, delivery, or performance of this Agreement or the consummation of the transactions contemplated hereby. The individual executing this Agreement on behalf of Contributor has been duly authorized to do so by all necessary corporate action.

Section 4.3 — Enforceability. This Agreement has been duly executed and delivered by Contributor and constitutes the legal, valid, and binding obligation of Contributor, enforceable against Contributor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, and similar laws of general applicability relating to or affecting creditors' rights generally, and to general equitable principles (whether considered in a proceeding in equity or at law) (collectively, the "Enforceability Exceptions").

Section 4.4 — Title to Contributed Interests. Contributor is the sole member and the record and beneficial owner of one hundred percent (100%) of the membership interests in each of the seven (7) Project Companies. The Contributed Interests constitute all of the outstanding membership interests in each Project Company. Contributor holds the Contributed Interests free and clear of all Encumbrances other than Permitted Encumbrances. There are no outstanding options, warrants, rights of conversion, exchange rights, subscription rights, preemptive rights, agreements, arrangements, calls, commitments, or rights of any kind that obligate Contributor or any Project Company to issue, sell, transfer, or otherwise dispose of, or to cause the issuance, sale, transfer, or other disposition of, any equity interests in any Project Company. Upon consummation of the contribution contemplated by this Agreement, Recipient will acquire good and valid title to the Contributed Interests, free and clear of all Encumbrances other than Permitted Encumbrances. The Contributed Interests have been duly authorized and validly issued, are fully paid and non-assessable (to the extent such concepts are applicable to limited liability company membership interests under the Delaware Limited Liability Company Act), and were not issued in violation of any preemptive or similar rights.

Section 4.5 — Project Company Organization and Good Standing. Each of the seven (7) Project Companies is a limited liability company duly formed, validly existing, and in good standing under the laws of the State of Delaware. Each Project Company has full limited liability company power and authority to own, lease, and operate its properties and assets and to conduct its business as currently conducted. Each Project Company is duly qualified to do business and in good standing in the state in which its respective Project is located: the State of Texas (with respect to Pecos Sun Solar, LLC, Red Mesa Solar, LLC, Coyote Flats Solar, LLC, Llano Verde Solar, LLC, and Amistad Solar, LLC) and the State of New Mexico (with respect to Cimarron Solar, LLC and Sandoval Ridge Solar, LLC). Each Project Company is treated as a disregarded entity for federal income tax purposes, with Contributor as the sole owner of such entity for such purposes. No Project Company has any subsidiaries or owns any equity interests in any other Person. The copies of the organizational documents of each Project Company that have been delivered or made available to Recipient are true, correct, and complete as of the date hereof.

Section 4.6 — No Conflicts. The execution, delivery, and performance by Contributor of this Agreement and the other Transaction Documents to which Contributor is a party, and the consummation of the transactions contemplated hereby and thereby, including the contribution of the Contributed Interests, do not and will not:

(a) violate, conflict with, or result in a breach of any provision of, or constitute a default (with or without the giving of notice, lapse of time, or both) under, the certificate of formation, bylaws, or other organizational documents of Contributor or any Project Company;

(b) violate any law, statute, regulation, rule, judgment, order, writ, decree, or injunction of any Governmental Authority applicable to Contributor or any Project Company, or any of their respective properties or assets;

(c) result in a breach of, constitute a default (with or without the giving of notice, lapse of time, or both) under, give rise to a right of termination, cancellation, or acceleration of any obligation or the loss of any benefit under, require any consent or approval under, or result in the creation or imposition of any Encumbrance (other than Permitted Encumbrances) upon any of the properties or assets of Contributor or any Project Company under, any material contract or agreement to which Contributor or any Project Company is a party or by which Contributor or any Project Company or any of their respective properties or assets is bound, including the EPC Agreement with Vasquez Brothers Construction, Inc., the Power Purchase Agreements with Lone Star Grid Solutions, LLC and Enchantment Power Cooperative, and the Osprey Construction Facility (Agreement No. ONB-PF-2022-0341); or

(d) result in the creation or imposition of any Encumbrance (other than Permitted Encumbrances) on the Contributed Interests or on any of the assets of any Project Company.

Section 4.7 — Consents and Approvals. All consents, approvals, authorizations, permits, orders, filings, registrations, and declarations required to be obtained by Contributor or any Project Company from, or to be made by Contributor or any Project Company with, any Governmental Authority or any other Person in connection with the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby have been obtained or made, including:

(a) the consent of Osprey National Bank, N.A., in its capacity as administrative agent and lender under the Osprey Construction Facility (Agreement No. ONB-PF-2022-0341), to the contribution of the Contributed Interests;

(b) any consents required under the Power Purchase Agreements with Lone Star Grid Solutions, LLC and Enchantment Power Cooperative, including any consent to the change of control of the applicable Project Companies resulting from the contribution;

(c) any consents required under the EPC Agreement with Vasquez Brothers Construction, Inc., including any consent to the change of control of the Project Companies resulting from the contribution; and

(d) any governmental filings, approvals, or notifications required in connection with the contribution, including filings with the Delaware Secretary of State and any applicable filings with the Texas Secretary of State and New Mexico Secretary of State.

No filing with, or notice to, the U.S. Securities and Exchange Commission or any other federal securities regulatory authority is required in connection with the execution, delivery, or performance of this Agreement or the consummation of the transactions contemplated hereby. The transactions contemplated by this Agreement are not subject to the notification requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

Section 4.8 — No Liabilities. Except as set forth on Schedule 4.8 hereto, no Project Company has any liabilities or obligations (whether absolute, accrued, contingent, fixed, or otherwise, and whether due or to become due) other than:

(a) liabilities reflected in the books and records of such Project Company as of the date hereof;

(b) liabilities incurred in the ordinary course of business consistent with past practice since the date of the most recent financial statements delivered to Recipient;

(c) liabilities arising under the EPC Agreement, the Power Purchase Agreements, site leases, interconnection agreements, and other material contracts listed on Schedule 4.11; and

(d) liabilities that, individually or in the aggregate, are not material to the business, assets, financial condition, or results of operations of such Project Company.

Section 4.9 — Absence of Litigation. There is no action, suit, proceeding, claim, arbitration, mediation, or investigation pending or, to the Knowledge of Contributor, threatened in writing, before any Governmental Authority or arbitral body against or relating to Contributor or any Project Company, or any of their respective properties, assets, or businesses, that: (a) would reasonably be expected to affect the Contributed Interests, the Projects, or the ability of Contributor to consummate the transactions contemplated by this Agreement; (b) challenges or seeks to prevent, enjoin, or materially delay the transactions contemplated hereby; or (c) would reasonably be expected to result in a Material Adverse Effect. Neither Contributor nor any Project Company is subject to any outstanding order, writ, judgment, injunction, decree, or ruling of any Governmental Authority that would materially adversely affect the transactions contemplated by this Agreement or the Projects.

Section 4.10 — Tax Matters.

(a) Each Project Company is, and at all times since its formation has been, treated as a disregarded entity for federal income tax purposes pursuant to Treasury Regulations Section 301.7701-3, with Contributor as the sole owner of each such entity for federal income tax purposes. No election has been made or filed to change the tax classification of any Project Company.

(b) All tax returns required to be filed by or with respect to each Project Company (including all returns filed by Contributor that include or report the income, deductions, gains, losses, or credits of any Project Company) have been timely filed (taking into account any extensions of time to file granted or obtained). All such tax returns are true, correct, and complete in all material respects.

(c) All taxes due and payable by or with respect to each Project Company have been timely paid in full. No Project Company has any outstanding deficiency, assessment, or claim for additional taxes. No audit or investigation by any taxing authority is currently pending or, to the Knowledge of Contributor, threatened with respect to any Project Company.

(d) No Project Company has any outstanding tax liens or tax assessments. No taxing authority has asserted or, to the Knowledge of Contributor, threatened any claim, deficiency, or adjustment with respect to any taxes of or allocable to any Project Company.

(e) No Project Company is a party to any tax sharing, tax allocation, tax indemnity, or similar agreement (other than the Transaction Documents), and no Project Company has any liability for the taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law), as a transferee or successor, by contract, or otherwise.

(f) No Project Company has made or has in effect any election under Section 754 or Section 761 of the Code.

(g) The contribution of the Contributed Interests to Recipient pursuant to this Agreement is intended to qualify as a tax-free contribution of property to a partnership in exchange for a partnership interest under Section 721(a) of the Code, and Contributor has not taken, and will not take, any action that would cause the contribution to fail to so qualify.

(h) Each Project Company has complied in all material respects with all applicable provisions of the Code, the IRA, and any Treasury Regulations, IRS guidance, or other applicable law relating to the eligibility of the Project for Investment Tax Credits under Section 48 of the Code, including the prevailing wage and apprenticeship requirements of Section 48(a)(10) of the Code (as added by the IRA) to the extent applicable.

Section 4.11 — Project Assets and Material Contracts. Each Project Company owns, or has valid rights (by lease, license, easement, or otherwise) to use, all assets, properties, and rights that are necessary for the construction, operation, and maintenance of its respective Project, in each case free and clear of all Encumbrances other than Permitted Encumbrances. Schedule 4.11 attached hereto sets forth a true, correct, and complete list of all material contracts of each Project Company, including: (a) the applicable Power Purchase Agreement; (b) the EPC Agreement with Vasquez Brothers Construction, Inc.; (c) the applicable site lease; (d) the applicable interconnection agreement (with ERCOT or Northgate Corporation/WECC, as applicable); (e) equipment supply agreements; and (f) operations and maintenance agreements. Each material contract listed on Schedule 4.11 is in full force and effect and constitutes a valid and binding obligation of the applicable Project Company and, to the Knowledge of Contributor, each other party thereto, enforceable in accordance with its terms, subject to the Enforceability Exceptions. Neither the applicable Project Company nor, to the Knowledge of Contributor, any other party thereto, is in material breach of or default under any material contract listed on Schedule 4.11. The aggregate EPC cost across all seven (7) Projects under the EPC Agreement is Three Hundred Eighty-Four Million Six Hundred Thousand Dollars ($384,600,000).

Section 4.12 — Real Property. Each Project Company holds valid leasehold interests, easements, rights-of-way, and other real property interests sufficient for the construction, operation, and maintenance of its respective Project, as more particularly described in Schedule 4.12 attached hereto. The site leases for each Project have terms that are co-extensive with, or exceed, the tenor of the applicable Power Purchase Agreement. No Project Company owns any real property in fee simple. To the Knowledge of Contributor, there are no pending or threatened condemnation proceedings, eminent domain actions, or similar proceedings affecting any material portion of any Project site. The real property interests held by each Project Company are subject only to Permitted Encumbrances.

Section 4.13 — Environmental Matters. Each Project Company is, and has been, in compliance in all material respects with all applicable environmental laws, rules, regulations, and orders. All environmental permits, licenses, approvals, and authorizations required for the construction and operation of each Project have been obtained or are in the process of being obtained in the ordinary course, and all such permits are, or upon issuance will be, in full force and effect. To the Knowledge of Contributor, there are no pending or threatened environmental claims, actions, suits, proceedings, or investigations against or relating to any Project Company or any Project site. No Project Company has generated, stored, treated, transported, disposed of, or released any hazardous substances at, on, under, or from any Project site in violation of any applicable environmental law, except as would not, individually or in the aggregate, have a Material Adverse Effect.

Section 4.14 — Insurance. Each Project Company maintains, or will maintain upon the occurrence of the applicable COD, insurance coverage meeting the requirements set forth in the LLCA and the applicable Transaction Documents. Such insurance coverage includes: (a) property and casualty insurance policies placed by Sentinel Underwriters, Inc. with Fortis Indemnity Company (or its successor), with coverage limits and deductibles consistent with industry standards for utility-scale solar photovoltaic projects of similar size and scope; and (b) performance bonds and surety bonds issued by Ironclad Surety Corp. in connection with the EPC Agreement. Schedule 4.14, which is incorporated herein by reference, sets forth a summary of all material insurance policies and bonds maintained by or for the benefit of each Project Company, including policy numbers, carriers, coverage amounts, deductibles, and expiration dates.

Section 4.15 — Permits and Regulatory Compliance. Each Project Company has obtained, or is in the process of obtaining in the ordinary course, all permits, licenses, approvals, authorizations, registrations, and certificates of any Governmental Authority that are necessary for the construction and operation of its respective Project, including:

(a) interconnection agreements with ERCOT (for the five Texas projects) and with Northgate Corporation/WECC (for the two New Mexico projects);

(b) county building permits and zoning approvals in the applicable county in which each Project is located;

(d) all other federal, state, and local permits and approvals required for the construction and operation of each Project.

All such permits that have been obtained are in full force and effect, and no proceeding is pending or, to the Knowledge of Contributor, threatened to revoke, suspend, modify, or limit any such permit. Each Project Company is in compliance in all material respects with all terms and conditions of each such permit. A complete list of all material permits for each Project is set forth in Schedule 4.15 attached hereto.

Section 4.16 — EPC and Construction Status. Construction of each Project is being performed by Vasquez Brothers Construction, Inc. under the EPC Agreement, in accordance with the plans, specifications, and schedule set forth therein. Contributor has provided, or will provide prior to Closing, a schedule of construction status for each Project, including percentage of construction completion, anticipated COD, and any budget variances. As of the date hereof, construction of each Project is proceeding substantially in accordance with the construction schedule set forth in the EPC Agreement, subject to customary and immaterial delays. The EPC contractor, Vasquez Brothers Construction, Inc., has maintained compliance with the prevailing wage and apprenticeship requirements of Section 48(a)(10) of the Code (as added by the IRA) throughout the construction of each Project, as required for each Project to qualify for the thirty percent (30%) base Investment Tax Credit rate. A summary of the construction status of each Project is set forth in Schedule 4.16 attached hereto.

Section 4.17 — Power Purchase Agreements. The following Power Purchase Agreements are in full force and effect as of the date hereof, have been duly authorized, executed, and delivered by the applicable Project Company and, to the Knowledge of Contributor, by the applicable counterparty, and constitute valid and binding obligations of the parties thereto:

(a) Texas Projects. Each of the five (5) Texas Project Companies (Pecos Sun Solar, LLC; Red Mesa Solar, LLC; Coyote Flats Solar, LLC; Llano Verde Solar, LLC; and Amistad Solar, LLC) is party to a Power Purchase Agreement with Lone Star Grid Solutions, LLC, at a weighted-average contract price of Thirty-Two Dollars and Fifty Cents per megawatt-hour ($32.50/MWh), with a one and one-half percent (1.5%) annual price escalator, for a term of fifteen (15) years from each respective COD.

(b) New Mexico Projects. Each of the two (2) New Mexico Project Companies (Cimarron Solar, LLC and Sandoval Ridge Solar, LLC) is party to a Power Purchase Agreement with Enchantment Power Cooperative, at a weighted-average contract price of Twenty-Nine Dollars and Seventy-Five Cents per megawatt-hour ($29.75/MWh), with a two percent (2.0%) annual price escalator, for a term of twenty (20) years from each respective COD.

Neither any Project Company nor, to the Knowledge of Contributor, any counterparty to a Power Purchase Agreement is in material breach of or default under any Power Purchase Agreement. No written notice of termination, breach, or default has been delivered by any party under any Power Purchase Agreement.

Section 4.18 — No Brokers. No broker, finder, investment banker, or other intermediary is entitled to any brokerage, finder's, or other fee or commission in connection with this Agreement or the transactions contemplated hereby based upon arrangements made by or on behalf of Contributor or any Project Company.

ARTICLE V — REPRESENTATIONS AND WARRANTIES OF RECIPIENT

Recipient hereby represents and warrants to Contributor as of the date hereof and as of the Closing Date (except where a particular representation or warranty expressly speaks as of a specified date, in which case as of such specified date) as follows:

Section 5.1 — Organization and Good Standing. Recipient is a limited liability company duly formed, validly existing, and in good standing under the laws of the State of Delaware (Employer Identification Number: 88-4071523), formed on August 14, 2023. Recipient has full limited liability company power and authority to own, lease, and operate its properties and assets and to conduct its business as currently conducted and as proposed to be conducted. Recipient is classified as a partnership for federal income tax purposes pursuant to Treasury Regulations Section 301.7701-3.

Section 5.2 — Authorization. The execution, delivery, and performance by Recipient of this Agreement and each of the other Transaction Documents to which Recipient is a party, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of Recipient, including, without limitation, approval by CBR Solstice Manager, LLC (Employer Identification Number: 88-4071597), a Delaware limited liability company, in its capacity as the Managing Member of Recipient. The individual executing this Agreement on behalf of Recipient has been duly authorized to do so by all necessary limited liability company action.

Section 5.3 — Enforceability. This Agreement has been duly executed and delivered by Recipient and constitutes the legal, valid, and binding obligation of Recipient, enforceable against Recipient in accordance with its terms, subject to the Enforceability Exceptions.

Section 5.4 — No Conflicts. The execution, delivery, and performance by Recipient of this Agreem

INTERCOMPANY CONTRIBUTION AGREEMENT
Dated as of September 21, 2023
by and between
CALLOWAY-BRIGGS RENEWABLES INC., a Texas corporation ("Contributor")
and
SOLSTICE HOLDINGS, LLC, a Delaware limited liability company ("Recipient")
In connection with the Solstice Portfolio Tax-Equity and Transferable-Credit Financing Transaction
TABLE OF CONTENTS
Right-click to update Table of Contents
INTERCOMPANY CONTRIBUTION AGREEMENT
This INTERCOMPANY CONTRIBUTION AGREEMENT (this "Agreement") is made and entered into as of September 21, 2023, by and between CALLOWAY-BRIGGS RENEWABLES INC., a Texas corporation ("Contributor" or "CBR"), and SOLSTICE HOLDINGS, LLC, a Delaware limited liability company ("Recipient" or the "Partnership"). Contributor and Recipient are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS:
A. Calloway-Briggs Renewables Inc. is a corporation duly organized and validly existing under the laws of the State of Texas (Employer Identification Number: 84-3291076; Texas Secretary of State File No.: 803762114), with its principal executive offices located at 2700 Post Oak Boulevard, Suite 1450, Houston, Texas 77056. CBR is engaged in the business of developing, owning, financing, constructing, and operating utility-scale solar photovoltaic generation projects throughout the southwestern United States, and has developed and maintained a portfolio of renewable energy assets representing significant investment in the domestic clean energy sector;
B. Solstice Holdings, LLC is a limited liability company duly formed and validly existing under the laws of the State of Delaware (Employer Identification Number: 88-4071523), formed on August 14, 2023, and maintaining its registered agent at Cascade Systems, 160 Greentree Drive, Suite 101, Dover, Delaware 19904. Solstice Holdings is, and at all times since its formation has been, classified as a partnership for federal income tax purposes pursuant to Treasury Regulations Section 301.7701-3;
C. CBR Solstice Manager, LLC, a Delaware limited liability company (Employer Identification Number: 88-4071597), is a wholly owned subsidiary of Contributor, formed on August 14, 2023, under the laws of the State of Delaware, and serves as the Managing Member of Solstice Holdings, LLC pursuant to the organizational documents of Solstice Holdings;
D. Ridgeline Capital Partners, LLC, a Delaware limited liability company (Employer Identification Number: 13-4827651), with its principal offices located at 390 Park Avenue, 22nd Floor, New York, New York 10022, will serve as the Tax-Equity Member of Solstice Holdings pursuant to the Amended and Restated Limited Liability Company Agreement of Solstice Holdings, LLC dated as of September 21, 2023 (the "LLCA"), and will make a capital contribution of One Hundred Twenty Million Dollars ($120,000,000) to Solstice Holdings in connection with the transactions contemplated by the LLCA and the related Transaction Documents;
E. Contributor is the sole member and owner of one hundred percent (100%) of the membership interests (each, a "Project Company Interest" and collectively, the "Contributed Interests") in each of the following seven (7) Delaware limited liability companies (each, a "Project Company" and collectively, the "Project Companies"), each of which is treated as a disregarded entity for federal income tax purposes and each of which holds a utility-scale solar photovoltaic project:
The foregoing seven (7) Project Companies collectively own and operate solar photovoltaic generation assets with an aggregate nameplate capacity of four hundred twenty megawatts direct current (420 MW(dc)) (the "Solstice Portfolio");
F. The contribution of the Contributed Interests pursuant to this Agreement is being made in connection with a One Hundred Eighty Million Dollar ($180,000,000) tax-equity and transferable tax-credit financing transaction (the "Transaction") comprising: (i) a One Hundred Twenty Million Dollar ($120,000,000) partnership-flip tax-equity investment by Ridgeline Capital Partners, LLC into Solstice Holdings, LLC; and (ii) a sale and transfer of Sixty Million Dollars ($60,000,000) face-value Investment Tax Credits to Pinehurst Insurance Group, Inc. pursuant to Section 6418 of the Internal Revenue Code of 1986, as amended;
G. The seven (7) Project Companies have entered into a Master Engineering, Procurement, and Construction Agreement (the "EPC Agreement") with Vasquez Brothers Construction, Inc. (Employer Identification Number: 75-2648103), a Texas corporation, providing for aggregate engineering, procurement, and construction costs of Three Hundred Eighty-Four Million Six Hundred Thousand Dollars ($384,600,000), which costs constitute a substantial portion of the eligible basis for purposes of determining Investment Tax Credits under Section 48 of the Internal Revenue Code of 1986, as amended;
H. The Parties intend that the contribution of the Contributed Interests by Contributor to Recipient pursuant to this Agreement shall qualify as a tax-free contribution of property to a partnership in exchange for a partnership interest under Section 721 of the Internal Revenue Code of 1986, as amended (the "Code"), and that no gain or loss shall be recognized by either Party as a result of such contribution;
I. In exchange for the contribution of the Contributed Interests, Contributor (acting through its wholly owned subsidiary, CBR Solstice Manager, LLC) will receive its membership interest in Solstice Holdings, LLC as set forth in the LLCA, and CBR Solstice Manager, LLC will make a cash capital contribution of Two Million Four Hundred Thousand Dollars ($2,400,000) to Solstice Holdings, representing two percent (2%) of Ridgeline Capital Partners' One Hundred Twenty Million Dollar ($120,000,000) capital contribution, consistent with the minimum investment requirements described in Revenue Procedure 2007-65; and
J. This Agreement is being entered into concurrently with: (i) the LLCA; (ii) the Tax Credit Purchase Agreement between CBR and Pinehurst Insurance Group, Inc. dated as of September 21, 2023 (the "TCPA"); (iii) the Capital Contribution Agreement between Ridgeline Capital Partners, LLC and Solstice Holdings, LLC dated as of September 21, 2023 (the "Capital Contribution Agreement"); (iv) the Tax Indemnity Agreement; (v) the Escrow Agreement; (vi) the Purchase Option Agreement; (vii) the Back-Leverage Intercreditor and Consent Agreement; (viii) the Pledge Agreement; and (ix) other ancillary transaction documents, each as more fully described herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I — DEFINITIONS
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 Article I shall have the meanings ascribed to them elsewhere in this Agreement or, to the extent not defined herein, in the LLCA.
"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 Person. For purposes of this definition, "control" (including the correlative terms "controlling," "controlled by," and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or other equity interests, by contract, or otherwise. Notwithstanding the foregoing, for purposes of this Agreement, neither Ridgeline Capital Partners, LLC nor Pinehurst Insurance Group, Inc. shall be deemed an Affiliate of Contributor solely by reason of its membership interest in or contractual relationship with Solstice Holdings, LLC.
"Amended and Restated LLC Agreement" or "LLCA" means the Amended and Restated Limited Liability Company Agreement of Solstice Holdings, LLC, dated as of September 21, 2023, by and among CBR Solstice Manager, LLC, as Managing Member, and Ridgeline Capital Partners, LLC, as Tax-Equity Member, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms.
"Business Day" means any day other than a Saturday, a Sunday, or a day on which commercial banks in New York, New York or Houston, Texas are authorized or required by law to close.
"Capital Contribution Agreement" means the Capital Contribution Agreement, dated as of September 21, 2023, by and between Ridgeline Capital Partners, LLC and Solstice Holdings, LLC, providing for Ridgeline's capital contribution of One Hundred Twenty Million Dollars ($120,000,000) to Solstice Holdings in connection with the Transaction.
"Closing" means the closing of the transactions contemplated by this Agreement, the LLCA, and the related Transaction Documents, as described in Article III hereof.
"Closing Date" means the date on which the Closing actually occurs, which is currently scheduled for November 30, 2023, subject to extension in accordance with this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder. Any reference to a specific provision of the Code shall include any successor provision thereto and any Treasury Regulation promulgated under such provision.
"COD" or "Commercial Operation Date" means, with respect to each Project, the date on which such Project achieves commercial operation, as defined in the applicable Power Purchase Agreement and as confirmed by the independent engineer.
"Contributed Interests" means one hundred percent (100%) of the membership interests in each of the seven (7) Project Companies, as more particularly described in Section 2.1 and Schedule 2.1 hereto.
"Contributor" means Calloway-Briggs Renewables Inc., a Texas corporation.
"Disclosure Schedules" means the disclosure schedules delivered by Contributor to Recipient concurrently with the execution and delivery of this Agreement, as the same may be updated prior to Closing with the consent of Recipient.
"Enchantment Power Cooperative" means Enchantment Power Cooperative, an electric cooperative organized under the laws of the State of New Mexico, which is the counterparty to the Power Purchase Agreements for the Cimarron Solar and Sandoval Ridge Solar projects.
"Encumbrance" means any lien, pledge, mortgage, deed of trust, security interest, charge, claim, community property interest, equitable interest, option, right of first refusal, right of first offer, restriction on transfer, restriction on use, condition, easement, encroachment, covenant, condition, or restriction, or any other encumbrance of any kind or nature whatsoever, whether voluntary or involuntary, choate or inchoate, perfected or unperfected, and whether arising by agreement, operation of law, or otherwise.
"EPC Agreement" means the Master Engineering, Procurement, and Construction Agreement, dated as of May 15, 2023, by and between Contributor (on behalf of the Project Companies) and Vasquez Brothers Construction, Inc. (Employer Identification Number: 75-2648103), a Texas corporation, providing for the engineering, procurement, and construction of the Solstice Portfolio for aggregate costs of Three Hundred Eighty-Four Million Six Hundred Thousand Dollars ($384,600,000), as the same may be amended or supplemented from time to time.
"ERCOT" means the Electric Reliability Council of Texas, Inc., the independent system operator for the majority of the electric grid in the State of Texas.
"Escrow Agreement" means the Escrow Agreement entered into in connection with the Transaction, providing for the escrow of certain funds pending satisfaction of conditions precedent to the funding of Ridgeline's capital contribution.
"FAA" means the Federal Aviation Administration of the United States Department of Transportation.
"Fundamental Representations" means the representations and warranties set forth in Sections 4.1 (Organization and Good Standing), 4.2 (Authorization), 4.4 (Title to Contributed Interests), 4.10 (Tax Matters), 5.1 (Organization and Good Standing), 5.2 (Authorization), and 5.5 (Tax Treatment).
"Governmental Authority" means any government or political subdivision thereof, whether federal, state, county, local, municipal, or foreign, or any agency, authority, board, bureau, commission, department, office, public utility, instrumentality, or other regulatory body or entity of any of the foregoing, including any court, tribunal, or arbitral body of competent jurisdiction, and including ERCOT, the Public Utility Commission of Texas, the New Mexico Public Regulation Commission, and any successor entities thereto.
"IRA" means the Inflation Reduction Act of 2022 (Pub. L. 117-169).
"ITC" or "Investment Tax Credit" means the energy investment tax credit available under Section 48 of the Code, as amended by the IRA, including the base credit amount and any bonus credit amounts applicable thereto.
"Knowledge" means, with respect to Contributor, the actual knowledge of Marcus Calloway (Chairman & CEO), Theo Vasquez (CFO), and Priya Anand (VP, Project Finance), in each case after reasonable inquiry of direct reports with primary responsibility for the relevant subject matter.
"Lone Star Grid Solutions, LLC" means Lone Star Grid Solutions, LLC, a Texas limited liability company, which is the counterparty to the Power Purchase Agreements for the five Texas projects in the Solstice Portfolio.
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, penalties, fines, costs, or expenses (including reasonable attorneys' fees and expenses, expert witness fees, and costs of investigation and litigation), whether or not involving a third-party claim.
"Material Adverse Effect" means any event, change, circumstance, occurrence, effect, or development that, individually or in the aggregate with all other events, changes, circumstances, occurrences, effects, or developments, has had or would reasonably be expected to have a material adverse effect on (a) the assets, liabilities, financial condition, results of operations, or business of any Project Company, taken as a whole, (b) the ability of Contributor to consummate the transactions contemplated by this Agreement, or (c) the eligibility of any Project for ITC; provided, however, that none of the following, individually or in the aggregate, shall be deemed to constitute, or shall be taken into account in determining whether there has been, a Material Adverse Effect: (i) changes in general economic, business, financial, or market conditions; (ii) changes in conditions generally affecting the solar photovoltaic industry; (iii) changes in applicable law or accounting standards; (iv) the announcement or pendency of the transactions contemplated hereby; (v) acts of war, terrorism, or natural disasters, except to the extent disproportionately affecting the Projects; or (vi) weather-related delays in construction not exceeding forty-five (45) days in the aggregate.
"Offtake Agreements" or "PPAs" or "Power Purchase Agreements" means, collectively, the power purchase agreements between the applicable Project Companies and the applicable offtake purchasers, consisting of: (a) the Power Purchase Agreements with Lone Star Grid Solutions, LLC for the five Texas projects (Pecos Sun Solar, Red Mesa Solar, Coyote Flats Solar, Llano Verde Solar, and Amistad Solar), providing for a weighted-average contract price of Thirty-Two Dollars and Fifty Cents per megawatt-hour ($32.50/MWh), with a one and one-half percent (1.5%) annual price escalator, for a term of fifteen (15) years from each respective COD; and (b) the Power Purchase Agreements with Enchantment Power Cooperative for the two New Mexico projects (Cimarron Solar and Sandoval Ridge Solar), providing for a weighted-average contract price of Twenty-Nine Dollars and Seventy-Five Cents per megawatt-hour ($29.75/MWh), with a two percent (2.0%) annual price escalator, for a term of twenty (20) years from each respective COD.
"Osprey Construction Facility" means the Two Hundred Forty-Five Million Dollar ($245,000,000) construction-to-term loan facility under Agreement No. ONB-PF-2022-0341 with Osprey National Bank, N.A., as administrative agent and lender, pursuant to which the Project Companies have obtained financing for the construction of the Projects.
"Outside Date" means December 31, 2023, or such later date as the Parties may agree in writing.
"Permitted Encumbrances" means: (a) liens securing obligations of the Project Companies under the Osprey Construction Facility (Agreement No. ONB-PF-2022-0341), including UCC-1 financing statements filed by Osprey National Bank, N.A. against the Project Companies; (b) standard utility and transmission easements and rights-of-way recorded in the applicable county in which each Project is located, as set forth in Schedule 4.4 hereto; (c) real property encumbrances and other title matters identified in the Real Property and Lease Diligence Summary prepared by Derek Saunders; (d) liens for taxes not yet due and payable or being contested in good faith by appropriate proceedings; (e) mechanics', materialmen's, and similar statutory liens arising in the ordinary course of construction, provided such liens are bonded or otherwise secured to the reasonable satisfaction of Recipient; and (f) such other encumbrances as may be set forth in Schedule 4.4 hereto.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization, Governmental Authority, or any other legal entity.
"Pinehurst Insurance Group, Inc." means Pinehurst Insurance Group, Inc., a North Carolina corporation, which is the purchaser of transferable Investment Tax Credits pursuant to the Tax Credit Purchase Agreement.
"Pledge Agreement" means the Pledge Agreement entered into in connection with the Transaction, pursuant to which certain membership interests are pledged to secure obligations under the Transaction Documents.
"Project" means, with respect to each Project Company, the utility-scale solar photovoltaic generation project owned and operated by such Project Company, as more particularly described in the Recitals and Schedule 2.1 hereto.
"Project Companies" means, collectively, Pecos Sun Solar, LLC; Red Mesa Solar, LLC; Coyote Flats Solar, LLC; Llano Verde Solar, LLC; Cimarron Solar, LLC; Sandoval Ridge Solar, LLC; and Amistad Solar, LLC, each a Delaware limited liability company.
"Purchase Option Agreement" means the Purchase Option Agreement entered into in connection with the Transaction, providing the Managing Member or its Affiliate with the option to purchase Ridgeline's interest in Solstice Holdings following the flip date, as defined in the LLCA.
"Recipient" means Solstice Holdings, LLC, a Delaware limited liability company.
"Ridgeline" means Ridgeline Capital Partners, LLC, a Delaware limited liability company.
"Section 721 Contribution" means the contribution of the Contributed Interests by Contributor to Recipient as contemplated by this Agreement, which is intended to qualify as a tax-free contribution under Section 721(a) of the Code.
"Solstice Portfolio" means, collectively, the seven (7) solar photovoltaic generation projects owned by the Project Companies, having an aggregate nameplate capacity of four hundred twenty megawatts direct current (420 MW(dc)).
"Tax Credit Purchase Agreement" or "TCPA" means the Tax Credit Purchase Agreement, dated as of September 21, 2023, by and between Calloway-Briggs Renewables Inc. (or its designee) and Pinehurst Insurance Group, Inc., providing for the sale and transfer of Sixty Million Dollars ($60,000,000) face-value Investment Tax Credits pursuant to Section 6418 of the Code.
"Tax Indemnity Agreement" means the Tax Indemnity Agreement entered into in connection with the Transaction, pursuant to which Contributor and/or the Managing Member provides certain tax-related indemnities to Ridgeline Capital Partners, LLC.
"Transaction Documents" means, collectively, this Agreement, the LLCA, the Capital Contribution Agreement, the TCPA, the Tax Indemnity Agreement, the Escrow Agreement, the Purchase Option Agreement, the Back-Leverage Intercreditor and Consent Agreement, the Pledge Agreement, and all other agreements, instruments, certificates, and documents entered into or delivered in connection with the transactions contemplated hereby, in each case as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Treasury Regulations" means the temporary and final regulations of the United States Department of the Treasury promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
"Vasquez Brothers Construction, Inc." means Vasquez Brothers Construction, Inc. (Employer Identification Number: 75-2648103), a Texas corporation, which is the engineering, procurement, and construction contractor for the Solstice Portfolio under the EPC Agreement.
Section 1.2 — Rules of Construction. Unless the context of this Agreement otherwise requires: (a) words of any gender include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms "hereof," "herein," "hereby," "hereto," and derivative or similar words refer to this entire Agreement; (d) the terms "Article," "Section," "Schedule," and "Exhibit" refer to the specified Article, Section, Schedule, or Exhibit of or to this Agreement, unless otherwise specified; (e) the word "including" shall mean "including, without limitation"; (f) references to any Person include such Person's successors and permitted assigns; (g) references to any law, statute, rule, or regulation include any amendment, modification, or replacement thereof and any rules, regulations, and interpretive guidance issued thereunder, in each case as in effect from time to time; (h) references to any Section of the Code shall include any successor provision thereto and any Treasury Regulation promulgated under such Section; (i) the word "or" is not exclusive; (j) the word "extent" in the phrase "to the extent" means the degree to which a subject or other thing extends, and such phrase does not mean simply "if"; (k) all dollar amounts are expressed in United States Dollars; and (l) the headings and table of contents contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The Parties have participated jointly in the negotiation and drafting of this Agreement, and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
ARTICLE II — CONTRIBUTION
Section 2.1 — Contribution of Interests. Subject to the terms and conditions set forth in this Agreement, and in reliance upon the representations, warranties, covenants, and agreements contained herein, at the Closing, Contributor hereby agrees to contribute, assign, transfer, convey, and deliver to Recipient, and Recipient hereby agrees to accept from Contributor, free and clear of all Encumbrances other than Permitted Encumbrances, one hundred percent (100%) of the membership interests in each of the following Project Companies:
(a) one hundred percent (100%) of the membership interests in Pecos Sun Solar, LLC, a Delaware limited liability company, owning and developing an eighty-five megawatt direct current (85 MW(dc)) solar photovoltaic project located in Reeves County, Texas;
(b) one hundred percent (100%) of the membership interests in Red Mesa Solar, LLC, a Delaware limited liability company, owning and developing a seventy megawatt direct current (70 MW(dc)) solar photovoltaic project located in Pecos County, Texas;
(c) one hundred percent (100%) of the membership interests in Coyote Flats Solar, LLC, a Delaware limited liability company, owning and developing a sixty-five megawatt direct current (65 MW(dc)) solar photovoltaic project located in Ward County, Texas;
(d) one hundred percent (100%) of the membership interests in Llano Verde Solar, LLC, a Delaware limited liability company, owning and developing a fifty-five megawatt direct current (55 MW(dc)) solar photovoltaic project located in Hudspeth County, Texas;
(e) one hundred percent (100%) of the membership interests in Cimarron Solar, LLC, a Delaware limited liability company, owning and developing a fifty megawatt direct current (50 MW(dc)) solar photovoltaic project located in Lea County, New Mexico;
(f) one hundred percent (100%) of the membership interests in Sandoval Ridge Solar, LLC, a Delaware limited liability company, owning and developing a fifty megawatt direct current (50 MW(dc)) solar photovoltaic project located in Sandoval County, New Mexico; and
(g) one hundred percent (100%) of the membership interests in Amistad Solar, LLC, a Delaware limited liability company, owning and developing a forty-five megawatt direct current (45 MW(dc)) solar photovoltaic project located in Val Verde County, Texas.
The Contributed Interests are more particularly described in Schedule 2.1 attached hereto. The contribution effected pursuant to this Section 2.1 shall include, without limitation, all rights and obligations of Contributor as sole member of each Project Company, including all economic, governance, voting, consent, information, and other rights associated with the Contributed Interests.
Section 2.2 — Consideration. In consideration of the contribution of the Contributed Interests by Contributor to Recipient pursuant to Section 2.1 hereof:
(a) Recipient hereby issues to CBR Solstice Manager, LLC (as Contributor's designee and the Managing Member of Recipient) the Managing Member Interest in Solstice Holdings, LLC, as such interest is defined, and with the rights, preferences, obligations, and characteristics set forth, in the LLCA; and
(b) CBR Solstice Manager, LLC shall make a cash capital contribution of Two Million Four Hundred Thousand Dollars ($2,400,000) to Solstice Holdings, LLC on or prior to the Closing Date, which cash capital contribution represents two percent (2%) of Ridgeline Capital Partners' One Hundred Twenty Million Dollar ($120,000,000) capital contribution, consistent with the minimum investment requirements described in Revenue Procedure 2007-65 for the Managing Member's investment in a partnership-flip tax-equity structure.
The Parties acknowledge and agree that the foregoing consideration constitutes the entire consideration payable by Recipient to Contributor in connection with the contribution contemplated by this Agreement, and that such consideration is fair and adequate.
Section 2.3 — Tax Treatment.
(a) The Parties intend and agree that the contribution of the Contributed Interests by Contributor to Recipient pursuant to this Agreement shall be treated as a contribution of property to a partnership in exchange for a partnership interest under Section 721(a) of the Code, and that no gain or loss shall be recognized by Contributor or Recipient as a result of such contribution.
(b) The initial tax basis of the Contributed Interests in the hands of Recipient shall be determined under Section 723 of the Code, which provides that the basis of property contributed to a partnership by a partner shall be the adjusted basis of such property to the contributing partner at the time of the contribution (carryover basis).
(c) Contributor's tax basis in its partnership interest received in connection with the contribution (held through CBR Solstice Manager, LLC) shall be determined under Section 722 of the Code, which provides that the basis of an interest in a partnership acquired by a contribution of property, including money, to the partnership shall be the amount of such money and the adjusted basis of such property to the contributing partner at the time of the contribution, increased by the amount (if any) of gain recognized under Section 721(b) of the Code to the contributing partner at such time.
(d) The Parties agree not to take any position inconsistent with the treatment described in this Section 2.3 on any tax return, amended tax return, claim for refund, or in any administrative or judicial proceeding, unless otherwise required by a final determination (as defined in Section 1313 of the Code) or a change in applicable law after the date hereof.
(e) The Parties acknowledge that, following the contribution, each Project Company will continue to be treated as a disregarded entity for federal income tax purposes, with Solstice Holdings, LLC (as a partnership for federal income tax purposes) being treated as the owner of the assets and liabilities of each Project Company for federal income tax purposes.
Section 2.4 — Effective Time. The contribution of the Contributed Interests shall be effective as of the Closing. Immediately upon the effectiveness of the Closing, Recipient shall be deemed the sole member of each Project Company, and all rights and obligations of Contributor as sole member of each Project Company shall be transferred to and assumed by Recipient. The Parties agree to take all steps necessary and appropriate to update the books, records, and organizational documents of each Project Company to reflect Recipient as the sole member of each Project Company effective as of the Closing Date.
ARTICLE III — CLOSING
Section 3.1 — Closing. The Closing of the transactions contemplated by this Agreement shall take place simultaneously with the closing of the transactions contemplated by the LLCA, the Capital Contribution Agreement, the Tax Credit Purchase Agreement, and the other Transaction Documents, at such time, date, and place (including by electronic exchange of documents and signatures) as the Parties may agree in writing. The Closing is currently anticipated to occur on or about November 30, 2023, or such later date as the Parties may agree in writing; provided that the Closing shall occur no later than the Outside Date. The Parties acknowledge that the actual Closing occurred on December 8, 2023, following an eight (8)-day extension of the originally anticipated closing date, which extension was necessitated by the pending receipt of the final interconnection confirmation from the Electric Reliability Council of Texas for the Amistad Solar project, which confirmation was received on December 6, 2023. All transactions occurring at the Closing shall be deemed to have occurred simultaneously, and no transaction shall be deemed to have been completed or any document delivered until all transactions have been completed and all documents have been delivered.
Section 3.2 — Deliverables of Contributor at Closing. At or prior to the Closing, Contributor shall deliver, or cause to be delivered, to Recipient each of the following:
(a) duly executed assignments of membership interest for each of the seven (7) Project Companies, substantially in the form attached hereto as Exhibit A, assigning, transferring, and conveying one hundred percent (100%) of the membership interests in each Project Company from Contributor to Recipient, in form and substance reasonably satisfactory to Recipient and Ridgeline Capital Partners, LLC;
(b) a Secretary's Certificate of Calloway-Briggs Renewables Inc., executed by the Secretary or Assistant Secretary of Contributor, certifying: (i) resolutions of the Board of Directors of Contributor authorizing the execution, delivery, and performance of this Agreement and the other Transaction Documents to which Contributor is a party, and the consummation of the transactions contemplated hereby and thereby; (ii) the incumbency and specimen signatures of the officers of Contributor executing this Agreement and the other Transaction Documents; and (iii) the certificate of formation and bylaws (or equivalent organizational documents) of Contributor, each as in effect as of the Closing Date;
(c) an Officer's Closing Certificate of Calloway-Briggs Renewables Inc., substantially in the form attached hereto as Exhibit B, executed by Theo Vasquez, Chief Financial Officer of Contributor, certifying: (i) the accuracy and completeness of the representations and warranties of Contributor set forth in Article IV as of the Closing Date (or, in the case of representations and warranties that are made as of a specified date, as of such specified date); and (ii) the performance by Contributor of all covenants and agreements required to be performed by Contributor prior to or at the Closing;
(d) a certificate of good standing (or equivalent certificate) for Calloway-Briggs Renewables Inc. issued by the Texas Secretary of State, dated not more than ten (10) Business Days prior to the Closing Date;
(e) certificates of good standing (or equivalent certificates) for each of the seven (7) Project Companies issued by the Delaware Secretary of State, each dated not more than ten (10) Business Days prior to the Closing Date;
(f) evidence, in form and substance reasonably satisfactory to Recipient, that all required third-party consents for the consummation of the transactions contemplated by this Agreement have been obtained, including: (i) the consent of Osprey National Bank, N.A. under the Osprey Construction Facility (Agreement No. ONB-PF-2022-0341); (ii) any consents required under the Power Purchase Agreements; and (iii) any consents required under the EPC Agreement;
(g) UCC-3 termination statements or amendments, as applicable, duly authorized by Osprey National Bank, N.A., with respect to Osprey's existing UCC-1 financing statement filings under the Osprey Construction Facility (Agreement No. ONB-PF-2022-0341), to the extent necessary to permit the contribution of the Contributed Interests free and clear of all Encumbrances other than Permitted Encumbrances, or, in the alternative, amendments to such UCC-1 filings to reflect the change in the debtor's organizational structure resulting from the contribution;
(h) true, correct, and complete copies of all organizational documents of each Project Company, including Certificates of Formation filed with the Delaware Secretary of State and Limited Liability Company Agreements, in each case as in effect as of the Closing Date;
(i) evidence, in form and substance reasonably satisfactory to Recipient, that each Project Company is duly qualified to do business and in good standing (or equivalent status) in the state in which its respective Project is located (the State of Texas for Pecos Sun Solar, LLC, Red Mesa Solar, LLC, Coyote Flats Solar, LLC, Llano Verde Solar, LLC, and Amistad Solar, LLC; and the State of New Mexico for Cimarron Solar, LLC and Sandoval Ridge Solar, LLC); and
(j) an updated schedule of Permitted Encumbrances, reflecting any changes to the liens and encumbrances set forth on Schedule 4.4 since the date of this Agreement.
Section 3.3 — Deliverables of Recipient at Closing. At or prior to the Closing, Recipient shall deliver, or cause to be delivered, to Contributor each of the following:
(a) evidence, in form and substance reasonably satisfactory to Contributor, of Recipient's acceptance of the Contributed Interests and the updating of Recipient's books and records to reflect Recipient as the sole member of each Project Company;
(b) a duly executed counterpart of this Agreement;
(c) a certificate of good standing (or equivalent certificate) for Solstice Holdings, LLC issued by the Delaware Secretary of State, dated not more than ten (10) Business Days prior to the Closing Date; and
(d) a duly executed counterpart of the LLCA, reflecting the contribution of the Contributed Interests and the admission of Ridgeline Capital Partners, LLC as the Tax-Equity Member of Solstice Holdings, LLC.
ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR
Contributor hereby represents and warrants to Recipient as of the date hereof and as of the Closing Date (except where a particular representation or warranty expressly speaks as of a specified date, in which case as of such specified date) as follows:
Section 4.1 — Organization and Good Standing. Contributor is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas (Texas Secretary of State File No. 803762114). Contributor has full corporate power and authority to own, lease, and operate its properties and assets, including the Contributed Interests, and to conduct its business as currently conducted and as proposed to be conducted. Contributor is duly qualified to transact business and is in good standing in each jurisdiction where the character of its properties owned or held under lease or the nature of its activities makes such qualification necessary, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
Section 4.2 — Authorization. The execution, delivery, and performance by Contributor of this Agreement and each of the other Transaction Documents to which Contributor is a party, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary corporate action on the part of Contributor, including, without limitation, approval by the Board of Directors of Contributor at a meeting duly called and held or by unanimous written consent in lieu of a meeting. No vote or approval of the stockholders of Contributor is required for the execution, delivery, or performance of this Agreement or the consummation of the transactions contemplated hereby. The individual executing this Agreement on behalf of Contributor has been duly authorized to do so by all necessary corporate action.
Section 4.3 — Enforceability. This Agreement has been duly executed and delivered by Contributor and constitutes the legal, valid, and binding obligation of Contributor, enforceable against Contributor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, and similar laws of general applicability relating to or affecting creditors' rights generally, and to general equitable principles (whether considered in a proceeding in equity or at law) (collectively, the "Enforceability Exceptions").
Section 4.4 — Title to Contributed Interests. Contributor is the sole member and the record and beneficial owner of one hundred percent (100%) of the membership interests in each of the seven (7) Project Companies. The Contributed Interests constitute all of the outstanding membership interests in each Project Company. Contributor holds the Contributed Interests free and clear of all Encumbrances other than Permitted Encumbrances. There are no outstanding options, warrants, rights of conversion, exchange rights, subscription rights, preemptive rights, agreements, arrangements, calls, commitments, or rights of any kind that obligate Contributor or any Project Company to issue, sell, transfer, or otherwise dispose of, or to cause the issuance, sale, transfer, or other disposition of, any equity interests in any Project Company. Upon consummation of the contribution contemplated by this Agreement, Recipient will acquire good and valid title to the Contributed Interests, free and clear of all Encumbrances other than Permitted Encumbrances. The Contributed Interests have been duly authorized and validly issued, are fully paid and non-assessable (to the extent such concepts are applicable to limited liability company membership interests under the Delaware Limited Liability Company Act), and were not issued in violation of any preemptive or similar rights.
Section 4.5 — Project Company Organization and Good Standing. Each of the seven (7) Project Companies is a limited liability company duly formed, validly existing, and in good standing under the laws of the State of Delaware. Each Project Company has full limited liability company power and authority to own, lease, and operate its properties and assets and to conduct its business as currently conducted. Each Project Company is duly qualified to do business and in good standing in the state in which its respective Project is located: the State of Texas (with respect to Pecos Sun Solar, LLC, Red Mesa Solar, LLC, Coyote Flats Solar, LLC, Llano Verde Solar, LLC, and Amistad Solar, LLC) and the State of New Mexico (with respect to Cimarron Solar, LLC and Sandoval Ridge Solar, LLC). Each Project Company is treated as a disregarded entity for federal income tax purposes, with Contributor as the sole owner of such entity for such purposes. No Project Company has any subsidiaries or owns any equity interests in any other Person. The copies of the organizational documents of each Project Company that have been delivered or made available to Recipient are true, correct, and complete as of the date hereof.
Section 4.6 — No Conflicts. The execution, delivery, and performance by Contributor of this Agreement and the other Transaction Documents to which Contributor is a party, and the consummation of the transactions contemplated hereby and thereby, including the contribution of the Contributed Interests, do not and will not:
(a) violate, conflict with, or result in a breach of any provision of, or constitute a default (with or without the giving of notice, lapse of time, or both) under, the certificate of formation, bylaws, or other organizational documents of Contributor or any Project Company;
(b) violate any law, statute, regulation, rule, judgment, order, writ, decree, or injunction of any Governmental Authority applicable to Contributor or any Project Company, or any of their respective properties or assets;
(c) result in a breach of, constitute a default (with or without the giving of notice, lapse of time, or both) under, give rise to a right of termination, cancellation, or acceleration of any obligation or the loss of any benefit under, require any consent or approval under, or result in the creation or imposition of any Encumbrance (other than Permitted Encumbrances) upon any of the properties or assets of Contributor or any Project Company under, any material contract or agreement to which Contributor or any Project Company is a party or by which Contributor or any Project Company or any of their respective properties or assets is bound, including the EPC Agreement with Vasquez Brothers Construction, Inc., the Power Purchase Agreements with Lone Star Grid Solutions, LLC and Enchantment Power Cooperative, and the Osprey Construction Facility (Agreement No. ONB-PF-2022-0341); or
(d) result in the creation or imposition of any Encumbrance (other than Permitted Encumbrances) on the Contributed Interests or on any of the assets of any Project Company.
Section 4.7 — Consents and Approvals. All consents, approvals, authorizations, permits, orders, filings, registrations, and declarations required to be obtained by Contributor or any Project Company from, or to be made by Contributor or any Project Company with, any Governmental Authority or any other Person in connection with the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby have been obtained or made, including:
(a) the consent of Osprey National Bank, N.A., in its capacity as administrative agent and lender under the Osprey Construction Facility (Agreement No. ONB-PF-2022-0341), to the contribution of the Contributed Interests;
(b) any consents required under the Power Purchase Agreements with Lone Star Grid Solutions, LLC and Enchantment Power Cooperative, including any consent to the change of control of the applicable Project Companies resulting from the contribution;
(c) any consents required under the EPC Agreement with Vasquez Brothers Construction, Inc., including any consent to the change of control of the Project Companies resulting from the contribution; and
(d) any governmental filings, approvals, or notifications required in connection with the contribution, including filings with the Delaware Secretary of State and any applicable filings with the Texas Secretary of State and New Mexico Secretary of State.
No filing with, or notice to, the U.S. Securities and Exchange Commission or any other federal securities regulatory authority is required in connection with the execution, delivery, or performance of this Agreement or the consummation of the transactions contemplated hereby. The transactions contemplated by this Agreement are not subject to the notification requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
Section 4.8 — No Liabilities. Except as set forth on Schedule 4.8 hereto, no Project Company has any liabilities or obligations (whether absolute, accrued, contingent, fixed, or otherwise, and whether due or to become due) other than:
(a) liabilities reflected in the books and records of such Project Company as of the date hereof;
(b) liabilities incurred in the ordinary course of business consistent with past practice since the date of the most recent financial statements delivered to Recipient;
(c) liabilities arising under the EPC Agreement, the Power Purchase Agreements, site leases, interconnection agreements, and other material contracts listed on Schedule 4.11; and
(d) liabilities that, individually or in the aggregate, are not material to the business, assets, financial condition, or results of operations of such Project Company.
Section 4.9 — Absence of Litigation. There is no action, suit, proceeding, claim, arbitration, mediation, or investigation pending or, to the Knowledge of Contributor, threatened in writing, before any Governmental Authority or arbitral body against or relating to Contributor or any Project Company, or any of their respective properties, assets, or businesses, that: (a) would reasonably be expected to affect the Contributed Interests, the Projects, or the ability of Contributor to consummate the transactions contemplated by this Agreement; (b) challenges or seeks to prevent, enjoin, or materially delay the transactions contemplated hereby; or (c) would reasonably be expected to result in a Material Adverse Effect. Neither Contributor nor any Project Company is subject to any outstanding order, writ, judgment, injunction, decree, or ruling of any Governmental Authority that would materially adversely affect the transactions contemplated by this Agreement or the Projects.
Section 4.10 — Tax Matters.
(a) Each Project Company is, and at all times since its formation has been, treated as a disregarded entity for federal income tax purposes pursuant to Treasury Regulations Section 301.7701-3, with Contributor as the sole owner of each such entity for federal income tax purposes. No election has been made or filed to change the tax classification of any Project Company.
(b) All tax returns required to be filed by or with respect to each Project Company (including all returns filed by Contributor that include or report the income, deductions, gains, losses, or credits of any Project Company) have been timely filed (taking into account any extensions of time to file granted or obtained). All such tax returns are true, correct, and complete in all material respects.
(c) All taxes due and payable by or with respect to each Project Company have been timely paid in full. No Project Company has any outstanding deficiency, assessment, or claim for additional taxes. No audit or investigation by any taxing authority is currently pending or, to the Knowledge of Contributor, threatened with respect to any Project Company.
(d) No Project Company has any outstanding tax liens or tax assessments. No taxing authority has asserted or, to the Knowledge of Contributor, threatened any claim, deficiency, or adjustment with respect to any taxes of or allocable to any Project Company.
(e) No Project Company is a party to any tax sharing, tax allocation, tax indemnity, or similar agreement (other than the Transaction Documents), and no Project Company has any liability for the taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law), as a transferee or successor, by contract, or otherwise.
(f) No Project Company has made or has in effect any election under Section 754 or Section 761 of the Code.
(g) The contribution of the Contributed Interests to Recipient pursuant to this Agreement is intended to qualify as a tax-free contribution of property to a partnership in exchange for a partnership interest under Section 721(a) of the Code, and Contributor has not taken, and will not take, any action that would cause the contribution to fail to so qualify.
(h) Each Project Company has complied in all material respects with all applicable provisions of the Code, the IRA, and any Treasury Regulations, IRS guidance, or other applicable law relating to the eligibility of the Project for Investment Tax Credits under Section 48 of the Code, including the prevailing wage and apprenticeship requirements of Section 48(a)(10) of the Code (as added by the IRA) to the extent applicable.
Section 4.11 — Project Assets and Material Contracts. Each Project Company owns, or has valid rights (by lease, license, easement, or otherwise) to use, all assets, properties, and rights that are necessary for the construction, operation, and maintenance of its respective Project, in each case free and clear of all Encumbrances other than Permitted Encumbrances. Schedule 4.11 attached hereto sets forth a true, correct, and complete list of all material contracts of each Project Company, including: (a) the applicable Power Purchase Agreement; (b) the EPC Agreement with Vasquez Brothers Construction, Inc.; (c) the applicable site lease; (d) the applicable interconnection agreement (with ERCOT or Northgate Corporation/WECC, as applicable); (e) equipment supply agreements; and (f) operations and maintenance agreements. Each material contract listed on Schedule 4.11 is in full force and effect and constitutes a valid and binding obligation of the applicable Project Company and, to the Knowledge of Contributor, each other party thereto, enforceable in accordance with its terms, subject to the Enforceability Exceptions. Neither the applicable Project Company nor, to the Knowledge of Contributor, any other party thereto, is in material breach of or default under any material contract listed on Schedule 4.11. The aggregate EPC cost across all seven (7) Projects under the EPC Agreement is Three Hundred Eighty-Four Million Six Hundred Thousand Dollars ($384,600,000).
Section 4.12 — Real Property. Each Project Company holds valid leasehold interests, easements, rights-of-way, and other real property interests sufficient for the construction, operation, and maintenance of its respective Project, as more particularly described in Schedule 4.12 attached hereto. The site leases for each Project have terms that are co-extensive with, or exceed, the tenor of the applicable Power Purchase Agreement. No Project Company owns any real property in fee simple. To the Knowledge of Contributor, there are no pending or threatened condemnation proceedings, eminent domain actions, or similar proceedings affecting any material portion of any Project site. The real property interests held by each Project Company are subject only to Permitted Encumbrances.
Section 4.13 — Environmental Matters. Each Project Company is, and has been, in compliance in all material respects with all applicable environmental laws, rules, regulations, and orders. All environmental permits, licenses, approvals, and authorizations required for the construction and operation of each Project have been obtained or are in the process of being obtained in the ordinary course, and all such permits are, or upon issuance will be, in full force and effect. To the Knowledge of Contributor, there are no pending or threatened environmental claims, actions, suits, proceedings, or investigations against or relating to any Project Company or any Project site. No Project Company has generated, stored, treated, transported, disposed of, or released any hazardous substances at, on, under, or from any Project site in violation of any applicable environmental law, except as would not, individually or in the aggregate, have a Material Adverse Effect.
Section 4.14 — Insurance. Each Project Company maintains, or will maintain upon the occurrence of the applicable COD, insurance coverage meeting the requirements set forth in the LLCA and the applicable Transaction Documents. Such insurance coverage includes: (a) property and casualty insurance policies placed by Sentinel Underwriters, Inc. with Fortis Indemnity Company (or its successor), with coverage limits and deductibles consistent with industry standards for utility-scale solar photovoltaic projects of similar size and scope; and (b) performance bonds and surety bonds issued by Ironclad Surety Corp. in connection with the EPC Agreement. Schedule 4.14, which is incorporated herein by reference, sets forth a summary of all material insurance policies and bonds maintained by or for the benefit of each Project Company, including policy numbers, carriers, coverage amounts, deductibles, and expiration dates.
Section 4.15 — Permits and Regulatory Compliance. Each Project Company has obtained, or is in the process of obtaining in the ordinary course, all permits, licenses, approvals, authorizations, registrations, and certificates of any Governmental Authority that are necessary for the construction and operation of its respective Project, including:
(a) interconnection agreements with ERCOT (for the five Texas projects) and with Northgate Corporation/WECC (for the two New Mexico projects);
(b) county building permits and zoning approvals in the applicable county in which each Project is located;
(c) determinations of no hazard from the FAA with respect to any structures that may affect navigable airspace; and
(d) all other federal, state, and local permits and approvals required for the construction and operation of each Project.
All such permits that have been obtained are in full force and effect, and no proceeding is pending or, to the Knowledge of Contributor, threatened to revoke, suspend, modify, or limit any such permit. Each Project Company is in compliance in all material respects with all terms and conditions of each such permit. A complete list of all material permits for each Project is set forth in Schedule 4.15 attached hereto.
Section 4.16 — EPC and Construction Status. Construction of each Project is being performed by Vasquez Brothers Construction, Inc. under the EPC Agreement, in accordance with the plans, specifications, and schedule set forth therein. Contributor has provided, or will provide prior to Closing, a schedule of construction status for each Project, including percentage of construction completion, anticipated COD, and any budget variances. As of the date hereof, construction of each Project is proceeding substantially in accordance with the construction schedule set forth in the EPC Agreement, subject to customary and immaterial delays. The EPC contractor, Vasquez Brothers Construction, Inc., has maintained compliance with the prevailing wage and apprenticeship requirements of Section 48(a)(10) of the Code (as added by the IRA) throughout the construction of each Project, as required for each Project to qualify for the thirty percent (30%) base Investment Tax Credit rate. A summary of the construction status of each Project is set forth in Schedule 4.16 attached hereto.
Section 4.17 — Power Purchase Agreements. The following Power Purchase Agreements are in full force and effect as of the date hereof, have been duly authorized, executed, and delivered by the applicable Project Company and, to the Knowledge of Contributor, by the applicable counterparty, and constitute valid and binding obligations of the parties thereto:
(a) Texas Projects. Each of the five (5) Texas Project Companies (Pecos Sun Solar, LLC; Red Mesa Solar, LLC; Coyote Flats Solar, LLC; Llano Verde Solar, LLC; and Amistad Solar, LLC) is party to a Power Purchase Agreement with Lone Star Grid Solutions, LLC, at a weighted-average contract price of Thirty-Two Dollars and Fifty Cents per megawatt-hour ($32.50/MWh), with a one and one-half percent (1.5%) annual price escalator, for a term of fifteen (15) years from each respective COD.
(b) New Mexico Projects. Each of the two (2) New Mexico Project Companies (Cimarron Solar, LLC and Sandoval Ridge Solar, LLC) is party to a Power Purchase Agreement with Enchantment Power Cooperative, at a weighted-average contract price of Twenty-Nine Dollars and Seventy-Five Cents per megawatt-hour ($29.75/MWh), with a two percent (2.0%) annual price escalator, for a term of twenty (20) years from each respective COD.
Neither any Project Company nor, to the Knowledge of Contributor, any counterparty to a Power Purchase Agreement is in material breach of or default under any Power Purchase Agreement. No written notice of termination, breach, or default has been delivered by any party under any Power Purchase Agreement.
Section 4.18 — No Brokers. No broker, finder, investment banker, or other intermediary is entitled to any brokerage, finder's, or other fee or commission in connection with this Agreement or the transactions contemplated hereby based upon arrangements made by or on behalf of Contributor or any Project Company.
ARTICLE V — REPRESENTATIONS AND WARRANTIES OF RECIPIENT
Recipient hereby represents and warrants to Contributor as of the date hereof and as of the Closing Date (except where a particular representation or warranty expressly speaks as of a specified date, in which case as of such specified date) as follows:
Section 5.1 — Organization and Good Standing. Recipient is a limited liability company duly formed, validly existing, and in good standing under the laws of the State of Delaware (Employer Identification Number: 88-4071523), formed on August 14, 2023. Recipient has full limited liability company power and authority to own, lease, and operate its properties and assets and to conduct its business as currently conducted and as proposed to be conducted. Recipient is classified as a partnership for federal income tax purposes pursuant to Treasury Regulations Section 301.7701-3.
Section 5.2 — Authorization. The execution, delivery, and performance by Recipient of this Agreement and each of the other Transaction Documents to which Recipient is a party, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of Recipient, including, without limitation, approval by CBR Solstice Manager, LLC (Employer Identification Number: 88-4071597), a Delaware limited liability company, in its capacity as the Managing Member of Recipient. The individual executing this Agreement on behalf of Recipient has been duly authorized to do so by all necessary limited liability company action.
Section 5.3 — Enforceability. This Agreement has been duly executed and delivered by Recipient and constitutes the legal, valid, and binding obligation of Recipient, enforceable against Recipient in accordance with its terms, subject to the Enforceability Exceptions.
Section 5.4 — No Conflicts. The execution, delivery, and performance by Recipient of this Agreem

INTERCOMPANY CONTRIBUTION AGREEMENT

TABLE OF CONTENTS

INTERCOMPANY CONTRIBUTION AGREEMENT

RECITALS

WHEREAS:

Record

Parties

Dates

Amounts