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TAX INDEMNITY AGREEMENT

dated as of

September 21, 2023

CALLOWAY-BRIGGS RENEWABLES INC.

as Indemnitor

in favor of

PINEHURST INSURANCE GROUP, INC.

as Indemnitee

TAX INDEMNITY AGREEMENT

THIS TAX INDEMNITY AGREEMENT (this "Agreement") is made and entered into as of September 21, 2023 (the "Signing Date"), by and between:

CALLOWAY-BRIGGS RENEWABLES INC., a Texas corporation ("Indemnitor" or "CBR"), with its principal offices at 2700 Post Oak Boulevard, Suite 1450, Houston, TX 77056, Employer Identification Number 84-3291076,

in favor of

PINEHURST INSURANCE GROUP, INC., a Connecticut corporation ("Indemnitee" or "Purchaser"), with its principal offices at 175 Constitution Plaza, Hartford, CT 06103, Employer Identification Number 06-1938274.

CBR and Purchaser are sometimes referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, CBR is the sole member of CBR Solstice Manager, LLC, a Delaware limited liability company ("CBR Manager"), Employer Identification Number 88-4071597, which is the managing member of Solstice Holdings, LLC, a Delaware limited liability company (the "Partnership"), Employer Identification Number 88-4071523;

WHEREAS, the Partnership holds one hundred percent (100%) of the membership interests in seven project companies, each organized as a Delaware limited liability company and treated as a disregarded entity for federal income tax purposes (each, a "Project Company" and collectively, the "Project Companies"), each of which owns and operates a utility-scale solar photovoltaic generating facility (each, a "Project" and collectively, the "Solstice Portfolio" or the "Projects"), with a combined nameplate capacity of 420 megawatts (direct current) ("MW(dc)"), as more fully described in Exhibit A hereto, consisting of the following:

(i) Pecos Sun Solar, LLC (85 MW(dc), Reeves County, Texas);

(ii) Red Mesa Solar, LLC (70 MW(dc), Pecos County, Texas);

(iii) Coyote Flats Solar, LLC (65 MW(dc), Ward County, Texas);

(iv) Llano Verde Solar, LLC (55 MW(dc), Hudspeth County, Texas);

(v) Cimarron Solar, LLC (50 MW(dc), Lea County, New Mexico);

(vi) Sandoval Ridge Solar, LLC (50 MW(dc), Sandoval County, New Mexico); and

(vii) Amistad Solar, LLC (45 MW(dc), Val Verde County, Texas);

WHEREAS, the Projects constitute "energy property" eligible for investment tax credits ("ITCs") under Section 48 of the Internal Revenue Code of 1986, as amended (the "Code"), at an aggregate ITC rate of forty percent (40%), consisting of (a) a base rate of thirty percent (30%) pursuant to the satisfaction of the prevailing wage and apprenticeship requirements of the Inflation Reduction Act of 2022 ("IRA") as set forth in Section 48(a) of the Code, and (b) a ten percent (10%) domestic content bonus credit adder pursuant to Section 48(a)(12) of the Code;

WHEREAS, the aggregate eligible basis of the Projects is Three Hundred Eighty-Four Million Six Hundred Thousand Dollars ($384,600,000), generating total ITCs in the amount of One Hundred Fifty-Three Million Eight Hundred Forty Thousand Dollars ($153,840,000);

WHEREAS, certain of such ITCs in the aggregate face-value amount of Sixty-Four Million Eight Hundred Thousand Dollars ($64,800,000) have been designated for transfer under Section 6418 of the Code, of which Sixty Million Dollars ($60,000,000) (the "Transferred Credits") are being sold to Purchaser and Four Million Eight Hundred Thousand Dollars ($4,800,000) are being retained by CBR for its own use;

WHEREAS, CBR (in the capacity of "Seller") and Purchaser (in the capacity of "Buyer") have entered into that certain Tax Credit Purchase Agreement dated as of September 21, 2023 (the "TCPA"), pursuant to which CBR has agreed to sell, and Purchaser has agreed to purchase, the Transferred Credits at a purchase price of $0.92 per $1.00 of credit, for an aggregate purchase price of Fifty-Five Million Two Hundred Thousand Dollars ($55,200,000) (the "Aggregate Purchase Price");

WHEREAS, as a material condition precedent to Purchaser's obligations under the TCPA and as an inducement for Purchaser to consummate the transactions contemplated thereby, CBR has agreed to indemnify Purchaser against certain tax losses arising from the recapture, disallowance, reduction, or other unavailability of the Transferred Credits upon the terms and subject to the conditions set forth in this Agreement; and

WHEREAS, this Agreement is being entered into simultaneously with the execution and delivery of the TCPA and the other Transaction Documents (as defined herein), and shall become effective upon the Closing Date (as defined herein).

NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties contained herein, 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 Agreement shall have the meanings ascribed to them in the TCPA unless the context otherwise requires.

"Affiliate" means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For purposes of this definition, "control" (including the terms "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 ownership of voting securities, by contract, or otherwise.

"Aggregate Purchase Price" means Fifty-Five Million Two Hundred Thousand Dollars ($55,200,000), being the product of the Credit Amount ($60,000,000) multiplied by $0.92, as set forth in the TCPA.

"Applicable Tax Rate" means the highest marginal federal corporate income tax rate in effect under the Code for the relevant taxable year. As of the Signing Date, the Applicable Tax Rate is twenty-one percent (21%).

"Cap" means Sixty-Nine Million Dollars ($69,000,000), being one hundred twenty-five percent (125%) of the Aggregate Purchase Price (i.e., $55,200,000 × 1.25 = $69,000,000), as more fully described in Section 2.4 and Exhibit E hereto.

"Capital Contribution Agreement" means that certain Capital Contribution Agreement dated as of September 21, 2023, by and among Ridgeline Capital Partners, LLC, CBR Manager, and Solstice Holdings, LLC, as the same may be amended, restated, supplemented, or otherwise modified from time to time.

"Closing Date" means December 8, 2023, or such other date as CBR and Purchaser may mutually agree in writing as the closing date under the TCPA.

"Code" means the Internal Revenue Code of 1986, as amended from time to time, and any successor statute thereto. References to any section of the Code shall include any successor provision and any regulations promulgated thereunder (whether in final, temporary, or proposed form), as the same may be in effect from time to time.

"COD" or "Commercial Operation Date" means, with respect to each Project, the date on which such Project achieves commercial operation as certified by the applicable independent engineer in accordance with the terms of the applicable engineering, procurement, and construction agreement. The individual CODs of the Projects range from September 30, 2023 (Cimarron Solar) through November 18, 2023 (Amistad Solar), with a capacity-weighted-average COD of October 25, 2023, as more fully set forth in Exhibit A and Exhibit D hereto.

"Credit Amount" means Sixty Million Dollars ($60,000,000), being the face value of the Transferred Credits to be transferred to Purchaser pursuant to the TCPA and the Transfer Election.

"Disallowance Event" means any final determination by the Internal Revenue Service, any court of competent jurisdiction, or any other governmental authority that any portion of the Transferred Credits is not allowable to, or may not be claimed by, the Purchaser on its federal income tax return for any reason, including (without limitation) a determination that (a) the Projects or any of them do not constitute "energy property" under Section 48 of the Code, (b) the Transfer Election is invalid or was not properly made, (c) the eligible basis of the Projects is less than the amount upon which the Transferred Credits were calculated, or (d) the ITC rate applicable to the Projects is less than forty percent (40%).

"EPC Contractor" means Vasquez Brothers Construction, Inc., a Texas corporation, Employer Identification Number 75-2648103, which served as the primary engineering, procurement, and construction contractor for each of the Projects.

"Escrow Agent" means Clearwater Escrow Services, Inc., a Delaware corporation, serving in its capacity as escrow agent under the Escrow Agreement.

"Escrow Agreement" means that certain Escrow Agreement dated as of September 21, 2023, by and among CBR, Ridgeline Capital Partners, LLC, Pinehurst Insurance Group, Inc., and Clearwater Escrow Services, Inc., as escrow agent, with respect to Escrow Account No. CES-2023-80114, as the same may be amended, restated, supplemented, or otherwise modified from time to time.

"Governmental Authority" means any federal, state, local, or foreign government or any court, tribunal, administrative agency, commission, regulatory body, or other governmental instrumentality, authority, or entity, including the Internal Revenue Service and any state or local tax authority.

"Gross-Up Amount" has the meaning set forth in Section 2.3.

"Indemnified Tax Loss" has the meaning set forth in Section 2.1.

"IRS" means the Internal Revenue Service of the United States Department of the Treasury.

"ITC" means an investment tax credit under Section 48 of the Code.

"ITC Rate" means forty percent (40%), consisting of the thirty percent (30%) base ITC rate applicable to Projects that satisfy the prevailing wage and apprenticeship requirements under Section 48(a) of the Code (as enhanced by the five-times multiplier under IRA § 48(a)), plus the ten percent (10%) domestic content bonus credit adder under Section 48(a)(12) of the Code.

"LLCA" means that certain Amended and Restated Limited Liability Company Agreement of Solstice Holdings, LLC, dated as of September 21, 2023, by and among CBR Manager, Ridgeline Capital Partners, LLC, and such other members as may be parties thereto from time to time, as the same may be amended, restated, supplemented, or otherwise modified from time to time.

"Partnership" or "Solstice Holdings" means Solstice Holdings, LLC, a Delaware limited liability company, Employer Identification Number 88-4071523.

"Person" means any individual, corporation, partnership, limited liability company, joint venture, trust, estate, unincorporated organization, association, governmental authority, or any other entity.

"Project Companies" means the seven Delaware limited liability companies identified in the Recitals hereof, each of which is wholly owned by the Partnership and treated as a disregarded entity for federal income tax purposes, and "Project Company" means any one of them.

"Projects" means the seven utility-scale solar photovoltaic generating facilities owned by the Project Companies, as more fully described in Exhibit A hereto, and "Project" means any one of them.

"Purchaser" means Pinehurst Insurance Group, Inc., a Connecticut corporation.

"Recapture Event" means any event or occurrence causing the recapture of all or any portion of the Transferred Credits under Section 50(a) of the Code, including (without limitation) (a) any sale, exchange, or other disposition of any Project (or any interest therein) during the Recapture Period, (b) any cessation of use of any Project as "energy property" during the Recapture Period, or (c) any other change in circumstances during the Recapture Period that results in recapture of ITCs under Section 50(a) of the Code.

"Recapture Period" means, with respect to each Project, the five-year period beginning on the date such Project is placed in service (i.e., the applicable COD) and ending on the fifth anniversary of such date, as more fully set forth in Exhibit D hereto. For the avoidance of doubt, because the COD of each Project differs, the Recapture Period for each Project shall be calculated independently based on such Project's individual COD.

"Signing Date" means September 21, 2023, the date of execution of this Agreement.

"Solstice Portfolio" means, collectively, the seven Projects.

"Survival Period" has the meaning set forth in Section 5.1.

"Tax-Equity Investor" means Ridgeline Capital Partners, LLC, a Delaware limited liability company, which has made capital contributions to the Partnership in connection with the partnership-flip tax-equity structure described in the LLCA and the Capital Contribution Agreement.

"Tax Credit Purchase Agreement" or "TCPA" means that certain Tax Credit Purchase Agreement dated as of September 21, 2023, by and between CBR, as seller, and Purchaser, as buyer, as the same may be amended, restated, supplemented, or otherwise modified from time to time.

"Transaction Documents" means, collectively, the TCPA, this Agreement, the LLCA, the Capital Contribution Agreement, the Escrow Agreement, that certain Purchase Option Agreement dated as of September 21, 2023, by and among CBR and Ridgeline Capital Partners, LLC, that certain Intercompany Contribution Agreement dated as of September 21, 2023, by and among CBR, CBR Manager, and the Partnership, and all certificates, instruments, agreements, and other documents executed and delivered in connection with the transactions contemplated thereby.

"Transfer Election" means the election made by each applicable Project Company (or the Partnership, as applicable) under Section 6418 of the Code to transfer the Transferred Credits to Purchaser in exchange for the consideration set forth in the TCPA.

"Transfer Election Statement" means, with respect to each applicable Project Company, the statement or form (including IRS Form 3800 and any successor or additional form prescribed by the IRS) filed with the IRS in connection with the Transfer Election, together with all supporting documentation required under Section 6418 of the Code and applicable Treasury Regulations or IRS guidance.

"Transferred Credits" means ITCs in the aggregate face value of Sixty Million Dollars ($60,000,000) that are being transferred to Purchaser pursuant to the TCPA and the Transfer Election under Section 6418 of the Code, as more fully described in Exhibit B hereto.

"Treasury Regulations" means the final, temporary, and proposed regulations promulgated under the Code by the United States Department of the Treasury, as the same may be in effect from time to time.

Section 1.2 Rules of Construction. For purposes of this Agreement:

(a) References to "Articles," "Sections," "Exhibits," and "Schedules" are to the articles, sections, exhibits, and schedules of this Agreement unless otherwise indicated.

(b) Words in the singular include the plural and words in the plural include the singular.

(d) The word "including" and words of similar import mean "including, without limitation" and shall not be construed to limit any general statement to the specific or similar items or matters immediately following it.

(e) References to any statute, rule, or regulation include any amendment thereof and any successor statute, rule, or regulation, together with any regulations and guidance promulgated thereunder.

(f) References to any agreement, instrument, or document mean such agreement, instrument, or document as it may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof.

(g) The headings in this Agreement are for convenience of reference only and shall not affect the interpretation or construction of this Agreement.

(h) References to "days" mean calendar days unless "business days" is expressly specified. A "business day" means any day other than a Saturday, Sunday, or a day on which banking institutions in Houston, Texas or Hartford, Connecticut are authorized or required by law to be closed.

(i) References to "$" and "Dollars" mean the lawful currency of the United States of America.

(j) The Parties have participated jointly in the negotiation and drafting of this Agreement. 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

INDEMNIFICATION

Section 2.1 Indemnification Obligation. CBR hereby agrees to indemnify, defend, and hold harmless Purchaser and its Affiliates, and their respective officers, directors, employees, agents, successors, and permitted assigns (each, an "Indemnified Party") from and against any and all Indemnified Tax Losses. As used in this Agreement, "Indemnified Tax Loss" means any and all losses, liabilities, damages, costs, charges, or expenses (including, without limitation, reasonable attorneys' fees, accountants' fees, consultant fees, interest, and penalties) actually incurred or suffered by any Indemnified Party as a result of, arising out of, or in connection with:

(a) any Recapture Event with respect to all or any portion of the Transferred Credits, including any recapture of ITCs under Section 50(a) of the Code resulting from a sale, disposition, cessation of qualified use, or other change affecting any Project during the applicable Recapture Period;

(b) any Disallowance Event with respect to all or any portion of the Transferred Credits, including any determination by the IRS or any court or other Governmental Authority that any portion of the Transferred Credits is not allowable to or may not be claimed by the Purchaser;

(c) any breach by CBR of any of its representations, warranties, or covenants contained in this Agreement or in Articles IV and V of the TCPA;

(d) any failure by CBR, any Project Company, or the Partnership to make a valid Transfer Election under Section 6418 of the Code with respect to the Transferred Credits, including any failure to properly prepare, timely file, or otherwise perfect the Transfer Election Statements or to complete the IRS pre-filing registration requirements;

(e) any determination by the IRS, any court, or any other Governmental Authority that the Projects, or any of them, do not constitute "energy property" eligible for ITCs under Section 48 of the Code, or that the eligible basis of any Project is less than the amount set forth in Exhibit B hereto;

(f) any determination that the ITC rate applicable to the Projects, or any of them, is less than forty percent (40%), including (i) any reduction or loss of the ten percent (10%) domestic content bonus credit adder under Section 48(a)(12) of the Code, (ii) any reduction or loss of the prevailing wage and apprenticeship five-times (5x) multiplier resulting in the application of a base ITC rate of six percent (6%) rather than thirty percent (30%), or (iii) any combination thereof; and

(g) any penalties, interest, additions to tax, or other amounts assessed against or imposed upon Purchaser by the IRS or any other taxing authority in connection with any of the foregoing.

For the avoidance of doubt, the indemnification obligation of CBR under this Section 2.1 is a primary obligation and not merely a guaranty of payment, and shall not be contingent upon or subject to any requirement that Purchaser first proceed against any other Person or exhaust any other remedy before seeking indemnification hereunder.

Section 2.2 Indemnity Amount. The base indemnity amount for any Indemnified Tax Loss shall be calculated as follows:

(a) Dollar-for-Dollar Credit Reimbursement. The base indemnity amount shall equal one hundred percent (100%) of the dollar amount of the Transferred Credits that are recaptured, disallowed, reduced, or otherwise rendered unavailable to Purchaser. By way of illustration, if Ten Million Dollars ($10,000,000) of the Sixty Million Dollars ($60,000,000) of Transferred Credits are recaptured pursuant to a Recapture Event, the base indemnity amount shall be Ten Million Dollars ($10,000,000).

(b) Interest and Penalties. In addition to the base indemnity amount, CBR shall reimburse Purchaser for any and all interest, penalties, and additions to tax assessed by the IRS or any other taxing authority in connection with such Indemnified Tax Loss, including (without limitation) any underpayment interest under Section 6601 of the Code and any accuracy-related penalties under Section 6662 of the Code.

(c) Gross-Up Amount. In addition to the amounts described in clauses (a) and (b) above, CBR shall pay to Purchaser the Gross-Up Amount, as calculated in accordance with Section 2.3.

(d) Other Costs and Expenses. CBR shall reimburse Purchaser for all reasonable and documented out-of-pocket costs and expenses incurred by Purchaser in connection with any Indemnified Tax Loss, including reasonable attorneys' fees, accountants' fees, and consultant fees, to the extent such costs and expenses are not otherwise recovered by Purchaser.

Section 2.3 Gross-Up. Each indemnity payment made by CBR to Purchaser under this Article II shall include a gross-up amount (the "Gross-Up Amount") such that, after the payment by Purchaser of all federal, state, and local income taxes imposed on or with respect to the receipt of such indemnity payment, the Purchaser retains a net after-tax amount equal to the full amount of the Indemnified Tax Loss (including the base indemnity amount, interest, penalties, and all costs and expenses as described in Section 2.2).

The Gross-Up Amount shall be calculated in accordance with the following formula:

Gross-Up Amount = (Indemnified Tax Loss × Applicable Tax Rate) ÷ (1 – Applicable Tax Rate)

The purpose of the gross-up is to ensure that Purchaser is made whole on a complete after-tax basis for (i) the lost credit benefit arising from the recapture, disallowance, or reduction of the Transferred Credits, and (ii) any incremental income tax cost incurred by Purchaser as a result of receiving the indemnity payment itself, which is treated as taxable income to Purchaser.

Illustration. By way of example, assuming (i) an Indemnified Tax Loss of $10,000,000 (exclusive of the Gross-Up Amount), (ii) the Applicable Tax Rate is twenty-one percent (21%), and (iii) no state or local income taxes apply for purposes of this illustration:

Gross-Up Amount = ($10,000,000 × 0.21) / (1 – 0.21)

Gross-Up Amount = $2,100,000 / 0.79

Gross-Up Amount = $2,658,228 (rounded to the nearest dollar)

Total indemnity payment = $10,000,000 + $2,658,228 = $12,658,228

In such example, the Purchaser would receive a total indemnity payment of $12,658,228. After paying federal income tax of $2,658,228 (i.e., 21% × $12,658,228 = $2,658,228 (rounded)) on such indemnity payment, Purchaser would retain a net amount of approximately $10,000,000, thereby making Purchaser whole on an after-tax basis. If state or local income taxes are applicable, the Gross-Up Amount shall be appropriately adjusted to account for the combined effective tax rate.

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

Cap = $55,200,000 × 1.25 = $69,000,000

The Cap shall apply to the cumulative total of all indemnity payments made by CBR under this Agreement (including all base indemnity amounts, Gross-Up Amounts, interest, penalties, and reimbursed costs and expenses). Once the aggregate of all indemnity payments made by CBR hereunder equals the Cap, CBR shall have no further obligation to make any indemnity payment under this Agreement. The calculation of the Cap is set forth in further detail in Exhibit E hereto. For the avoidance of doubt, the Cap is a cumulative cap applicable to the aggregate of all claims under this Article II and is not a per-claim limitation.

Section 2.5 Payment Timing. CBR shall make any indemnity payment required under this Article II within thirty (30) calendar days after the earlier of:

(a) the date on which there is a "final determination" (within the meaning of Section 1313(a) of the Code) giving rise to the Indemnified Tax Loss, including (without limitation) a decision by the United States Tax Court that has become final, a closing agreement entered into under Section 7121 of the Code, an accepted Form 870-AD or similar form, or the expiration of the time for filing a claim for refund or the time for instituting a suit with respect thereto; or

(b) the date on which Purchaser makes payment of any additional federal, state, or local income tax, interest, penalty, or addition to tax attributable to a Recapture Event or Disallowance Event, as evidenced by written notice from Purchaser to CBR, together with reasonable supporting documentation.

All indemnity payments shall be made by wire transfer of immediately available funds to an account designated in writing by Purchaser (or such other method of payment as the Parties may mutually agree). If CBR fails to make any indemnity payment when due, such unpaid amount shall bear interest from the date due until the date paid at a rate equal to the lesser of (x) the prime rate as published in The Wall Street Journal on the date such payment was due, plus two percent (2%) per annum, and (y) the maximum rate permitted by applicable law.

Section 2.6 No Duplication. To the extent that Purchaser actually recovers any amount from any third party (including, without limitation, any insurance carrier, the EPC Contractor, or any other Person obligated to Purchaser pursuant to any separate indemnification, guarantee, warranty, or insurance arrangement) with respect to the same Indemnified Tax Loss for which CBR has made or is obligated to make an indemnity payment under this Agreement, the amount of such third-party recovery (net of any costs and expenses incurred by Purchaser in obtaining such recovery) shall reduce CBR's indemnity obligation under this Agreement on a dollar-for-dollar basis. Purchaser shall promptly notify CBR of any such third-party recovery. Nothing in this Section 2.6 shall require Purchaser to pursue any third-party claim prior to seeking indemnification from CBR hereunder, and CBR's indemnity obligation hereunder shall remain primary regardless of the availability of any other source of recovery.

Section 2.7 Right of Offset. Without prejudice to any other rights or remedies available to Purchaser, Purchaser shall have the right, upon thirty (30) days' prior written notice to CBR, to offset any amounts owed by CBR to Purchaser under this Agreement against any amounts otherwise payable by Purchaser to CBR under the TCPA or any other Transaction Document. Such written notice shall specify the basis for the offset, the amount being offset, and the Indemnified Tax Loss giving rise to the offset claim. The exercise by Purchaser of its offset right under this Section 2.7 shall not constitute a waiver of any other right or remedy available to Purchaser hereunder or under any other Transaction Document.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF CBR

CBR hereby represents and warrants to Purchaser as of the Signing Date and as of the Closing Date as follows:

Section 3.1 Organization and Good Standing. CBR is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas, Texas Secretary of State File No. 803762114. CBR is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the ownership of its properties or the conduct of its business requires such qualification or licensing, except where the failure to be so qualified or licensed would not reasonably be expected to have a material adverse effect on CBR's ability to perform its obligations under this Agreement. Each Project Company is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware and is duly qualified to do business in the state in which its respective Project is located.

Section 3.2 Authority and Enforceability. CBR has full corporate power and authority to execute, deliver, and perform this Agreement and each other Transaction Document to which it is a party, and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance by CBR of this Agreement and each such other Transaction Document have been duly authorized by all necessary corporate action on the part of CBR, including all requisite approvals of CBR's board of directors (by unanimous written consent dated September 18, 2023). This Agreement has been duly executed and delivered by CBR and constitutes the valid and binding obligation of CBR, enforceable against CBR 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, and to general equity principles (whether considered in a proceeding in equity or at law).

Section 3.3 No Conflicts. The execution, delivery, and performance by CBR of this Agreement, and the consummation of the transactions contemplated hereby, do not and will not (a) violate or conflict with the Articles of Incorporation or Bylaws of CBR, (b) violate or conflict with any applicable law, statute, regulation, rule, order, judgment, or decree of any Governmental Authority binding upon CBR or any of its properties or assets, (c) result in a breach of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or give rise to any right of termination, cancellation, acceleration, or modification of, any material agreement, contract, instrument, or obligation to which CBR is a party or by which CBR or any of its properties or assets is bound, or (d) result in the creation or imposition of any lien, encumbrance, security interest, or other charge upon any of CBR's properties or assets, including the Transferred Credits.

Section 3.4 ITC Eligibility. Each Project constitutes, or upon achievement of its COD will constitute, "energy property" within the meaning of Section 48(a)(3) of the Code. Each Project has been or will be "placed in service" within the meaning of Section 48 of the Code and applicable Treasury Regulations on or before December 31, 2023. The aggregate eligible basis of the Projects (determined in accordance with Section 48(a)(1) of the Code) is not less than Three Hundred Eighty-Four Million Six Hundred Thousand Dollars ($384,600,000), as set forth in Exhibit B hereto. Each Project qualifies for the thirty percent (30%) base ITC rate by reason of the satisfaction of the prevailing wage and apprenticeship requirements set forth in Section 48(a) of the Code, as modified by the IRA. Each Project qualifies for the ten percent (10%) domestic content bonus credit adder under Section 48(a)(12) of the Code and applicable IRS guidance, including IRS Notice 2023-38 and any successor guidance. Accordingly, the aggregate ITC rate applicable to the Projects is forty percent (40%).

Section 3.5 Prevailing Wage and Apprenticeship Compliance. All construction, alteration, and repair work on the Projects has been performed, and will continue to be performed, in compliance with the prevailing wage requirements set forth in IRA Section 45(b)(7) (as applied through Section 48(a) of the Code) and the apprenticeship requirements set forth in IRA Section 45(b)(8) (as applied through Section 48(a) of the Code). The EPC Contractor, Vasquez Brothers Construction, Inc. (EIN 75-2648103), has certified to CBR in writing its compliance with all applicable prevailing wage and apprenticeship requirements for each of the Projects, including the payment of wages at rates not less than the prevailing rates determined by the Secretary of Labor for corresponding classes of laborers and mechanics employed on projects of a similar character in the locality in which the work was performed. CBR has maintained and preserved, and shall continue to maintain and preserve, records sufficient to substantiate compliance with all prevailing wage and apprenticeship requirements, including certified payroll records, apprenticeship program registration documentation, and good-faith-effort documentation for each Project.

Section 3.6 Domestic Content. The Projects satisfy the domestic content requirements of Section 48(a)(12) of the Code and applicable IRS guidance, including IRS Notice 2023-38 and any successor guidance, notices, or regulations. Specifically, all steel and iron components incorporated into the Projects were produced in the United States (including all stages of the manufacturing process, from initial melting through application of coatings), and the manufactured products incorporated into the Projects meet the applicable percentage thresholds for domestic content as set forth in the applicable IRS guidance. CBR has obtained and maintained certifications from the EPC Contractor and relevant suppliers with respect to domestic content compliance and has documentation sufficient to substantiate such compliance.

Section 3.7 Transfer Election Validity. Each applicable Project Company (or the Partnership, as the case may be) is an "eligible taxpayer" entitled to make a Transfer Election under Section 6418 of the Code and applicable Treasury Regulations or IRS guidance (including IRS proposed regulations under Section 6418 published at 88 Fed. Reg. 40528 (June 21, 2023), and any final regulations). Pinehurst Insurance Group, Inc. is a valid "transferee taxpayer" eligible to receive the Transferred Credits under Section 6418 of the Code. The Transfer Election Statements have been or will be duly prepared and timely filed with the applicable federal income tax returns for the taxable year in which the applicable Projects are placed in service. CBR has completed, or will timely complete, all IRS pre-filing registration requirements for each Project, including any registration through the IRS Energy Credits Online portal, and has obtained or will obtain a valid registration number for each Project prior to making the Transfer Election.

Section 3.8 No Recapture Events. No Recapture Event has occurred with respect to any Project or any portion of the Transferred Credits as of the Signing Date. CBR is not aware of any facts, circumstances, events, or conditions that exist as of the Signing Date that would reasonably be expected to give rise to a Recapture Event during the Recapture Period. No Project Company has sold, exchanged, disposed of, or otherwise transferred any Project (or any interest therein), and no Project has undergone any change in use that would give rise to recapture under Section 50(a) of the Code.

Section 3.9 No Prior Transfers or Encumbrances on Credits. The Transferred Credits have not been previously sold, assigned, transferred, pledged, encumbered, hypothecated, or otherwise disposed of to any Person other than Purchaser pursuant to the TCPA. No Person other than Purchaser has any right, title, interest, lien, security interest, encumbrance, or claim of any kind with respect to the Transferred Credits. CBR has not entered into, and is not a party to, any agreement, arrangement, or understanding that would conflict with or impair the transfer of the Transferred Credits to Purchaser in accordance with the TCPA and this Agreement.

Section 3.10 Tax Returns and Compliance. CBR and each Project Company have filed (or will timely file, taking into account any valid extensions) all federal, state, and local tax returns required to be filed by them as of the Signing Date. All such tax returns are true, correct, and complete in all material respects. All taxes due and payable with respect to such tax returns have been timely paid or will be timely paid when due. As of the Signing Date, no audits, examinations, investigations, or proceedings by the IRS or any other tax authority are pending or, to the knowledge of CBR, threatened with respect to CBR, any Project Company, the Partnership, the Projects, or the ITCs generated by the Projects. There are no outstanding waivers or extensions of any statute of limitations with respect to any taxes or tax returns of CBR or any Project Company relating to the Projects.

Section 3.11 No Litigation. As of the Signing Date, no litigation, action, suit, proceeding, claim, or governmental investigation is pending or, to the knowledge of CBR, threatened against CBR, any Project Company, the Partnership, or any of the Projects that could reasonably be expected to adversely affect the validity, availability, or amount of the Transferred Credits, or the ability of CBR to perform its obligations under this Agreement or any other Transaction Document. CBR has not received any written communication from any Governmental Authority indicating that any of the foregoing is contemplated.

ARTICLE IV

COVENANTS

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

(a) sell, exchange, dispose of, convey, transfer, or otherwise alienate any Project or any material portion thereof (including any material component or equipment that constitutes part of the eligible basis of such Project);

(b) enter into any lease, sublease, license, or similar arrangement with respect to any Project (or any material portion thereof) that would cause such Project to cease to be "energy property" or that would otherwise trigger a Recapture Event;

(c) cause or permit any cessation of the qualified use of any Project as a solar photovoltaic generating facility during the Recapture Period; or

(d) take, or fail to take, any action that would reasonably be expected to give rise to a Recapture Event.

In the event that any disposition or change in use of a Project is required by applicable law, regulation, or Governmental Authority order, CBR shall promptly notify Purchaser and shall use commercially reasonable efforts to preserve the ITC qualification of the affected Project and to minimize any resulting Recapture Event.

Section 4.2 Continued Compliance with Prevailing Wage and Apprenticeship Requirements. CBR shall maintain and preserve all records relating to prevailing wage and apprenticeship compliance for each Project for a period of not less than seven (7) years following the date each applicable Project is placed in service. Such records shall include, without limitation, certified payroll records, apprenticeship program documentation, wage rate determinations, and all certifications received from the EPC Contractor or any subcontractor. CBR shall promptly cure any non-compliance with prevailing wage or apprenticeship requirements discovered during the Recapture Period, to the extent such non-compliance is curable under applicable IRS guidance (including, without limitation, correction and penalty procedures set forth in IRS Notice 2022-61, IRS proposed regulations, or any final guidance), and shall promptly notify Purchaser of any such non-compliance and the corrective actions taken.

Section 4.3 Domestic Content Compliance. CBR shall maintain and preserve all records and documentation substantiating the domestic content qualification of each Project under Section 48(a)(12) of the Code and applicable IRS guidance for a period of not less than seven (7) years following the date each applicable Project is placed in service. Such records shall include, without limitation, supplier certifications, bills of materials, country-of-origin documentation, and cost calculations demonstrating that the applicable percentage thresholds for domestic content have been satisfied. CBR shall promptly notify Purchaser of any facts or circumstances that could reasonably be expected to affect the domestic content qualification of any Project.

Section 4.4 Transfer Election Filings. CBR shall cause each applicable Project Company to timely prepare and file the Transfer Election Statement with such Project Company's federal income tax return (or the Partnership's federal income tax return, as applicable) for the taxable year in which the applicable Project is placed in service. CBR shall ensure that all Transfer Election Statements are complete, accurate, and in compliance with Section 6418 of the Code and all applicable Treasury Regulations and IRS guidance. CBR shall provide Purchaser with copies of all filed Transfer Election Statements, together with evidence of IRS acceptance thereof (including any registration confirmation or acknowledgment), within ten (10) business days following the date of such filing. CBR shall promptly notify Purchaser of any deficiency, error, or IRS inquiry relating to any Transfer Election Statement and shall take all corrective actions reasonably necessary to perfect such Transfer Election.

Section 4.5 Notice of Recapture or Disallowance Events. CBR shall promptly notify Purchaser in writing (in no event later than five (5) business days after CBR becomes aware of such event) of:

(a) any event, occurrence, or circumstance that has occurred or that could reasonably be expected to constitute a Recapture Event or a Disallowance Event;

(b) any inquiry, audit, examination, notice of deficiency, notice of proposed adjustment, revenue agent's report, 30-day letter, 90-day letter, or other communication from the IRS or any other taxing authority relating to the Transferred Credits, the ITCs, the Projects, or the Transfer Elections;

(c) any sale, disposition, lease, sublease, change in use, or material damage to or destruction of any Project or any material component thereof during the Recapture Period;

(d) any material litigation, proceeding, or governmental investigation that is commenced or threatened against CBR, any Project Company, the Partnership, or any of the Projects that could reasonably be expected to affect the Transferred Credits; and

(e) any material breach of any representation, warranty, or covenant of CBR under this Agreement or the TCPA.

Each notice delivered pursuant to this Section 4.5 shall describe in reasonable detail the nature of the event, the relevant facts and circumstances, the potential impact on the Transferred Credits, and the actions CBR has taken or proposes to take in response thereto.

Section 4.6 Cooperation with Tax Proceedings. CBR shall fully cooperate with Purchaser in connection with any IRS audit, examination, dispute, administrative proceeding, or judicial proceeding relating to the Transferred Credits or any matter that could give rise to an Indemnified Tax Loss. Such cooperation shall include, without limitation:

(a) providing Purchaser and its advisors with access to all relevant books, records, documents, files, and correspondence in the possession or control of CBR, any Project Company, or the Partnership;

(b) making available to Purchaser and its advisors the officers, directors, employees, agents, and representatives of CBR, any Project Company, the EPC Contractor, and the Partnership for interviews, meetings, and testimony as reasonably requested;

(c) executing and delivering such powers of attorney, authorizations, and other documents as Purchaser may reasonably request to facilitate Purchaser's participation in any such proceeding; and

(d) providing Purchaser with prompt notice of all material developments in any such proceeding.

Purchaser shall have the right to participate in (but, except as provided in Section 4.8, not to control) any IRS or other tax authority proceeding relating to the Transferred Credits, at Purchaser's own expense. CBR shall not settle, compromise, or concede any issue in any such proceeding that would adversely affect the Transferred Credits or give rise to an Indemnified Tax Loss without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned, or delayed.

Section 4.7 Insurance. CBR shall maintain, or shall cause the applicable Project Company or the Partnership to maintain, at all times during the Recapture Period, insurance coverage on terms and in amounts no less favorable than those required by the LLCA, including (without limitation):

(a) property (all-risk) insurance for each Project, placed by Sentinel Underwriters, Inc. with Fortis Indemnity Company (or a replacement insurer of comparable financial strength and creditworthiness), in an amount sufficient to cover the full replacement cost of each Project;

(b) commercial general liability insurance with limits of not less than $5,000,000 per occurrence and $10,000,000 in the aggregate;

(c) performance bonds issued by Ironclad Surety Corp. (or a replacement surety of comparable financial strength) in connection with the EPC Contractor's obligations under the applicable engineering, procurement, and construction agreements; and

(d) such other insurance as may be required under the LLCA or any applicable power purchase agreement or interconnection agreement.

CBR shall deliver to Purchaser, upon request, certificates of insurance evidencing such coverage and naming Purchaser as an additional insured to the extent required under the LLCA.

Section 4.8 Tax Contest Provisions. In the event that Purchaser receives notice of any IRS audit, examination, proposed adjustment, or administrative or judicial proceeding relating to or affecting the Transferred Credits:

(a) Notice. Purchaser shall promptly notify CBR in writing (in no event later than ten (10) business days after receipt of such notice) of the nature and substance of such audit, examination, or proceeding, together with copies of all relevant correspondence and communications received from the IRS or other Governmental Authority. The failure by Purchaser to provide timely notice shall not relieve CBR of its indemnification obligations under this Agreement, except to the extent that CBR is actually and materially prejudiced by such failure.

(b) Control of Defense. CBR shall have the right, at its sole cost and expense, to assume and control the defense, prosecution, or settlement of any claim, audit, or proceeding with respect to the Transferred Credits that could give rise to an Indemnified Tax Loss (a "Tax Claim"), by providing written notice to Purchaser within twenty (20) business days after CBR receives notice of such Tax Claim from Purchaser. If CBR assumes control of such Tax Claim, CBR shall select counsel reasonably acceptable to Purchaser, shall keep Purchaser informed of all material developments, and shall not settle or compromise such Tax Claim on terms that would adversely affect Purchaser's tax position without the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned, or delayed). If any proposed settlement would result in any residual tax liability, penalty, or adverse tax consequence to Purchaser that is not fully indemnified by CBR under this Agreement, Purchaser's consent to such settlement may be withheld in Purchaser's sole discretion.

(c) Purchaser Participation. Purchaser shall have the right, at its own expense, to participate in (but not control, except as provided in this Section 4.8) any Tax Claim, and CBR shall cooperate with Purchaser in connection therewith. If CBR does not assume control of a Tax Claim within the twenty (20) business day period described in clause (b) above, Purchaser shall have the right to control such Tax Claim, and CBR shall cooperate with and provide assistance to Purchaser as reasonably requested.

(d) Cooperation. Purchaser shall cooperate with CBR in connection with any Tax Claim controlled by CBR, including executing such documents and providing such information and access as CBR may reasonably request.

Section 4.9 Annual Compliance Certifications. On each anniversary of the Closing Date during the Recapture Period (and, with respect to the final certification, on or before the date that is thirty (30) days following the expiration of the last Recapture Period), CBR shall deliver to Purchaser an annual compliance certificate substantially in the form set forth in Exhibit C hereto (an "Annual Compliance Certificate"), signed by the Chief Financial Officer of CBR (currently, Theo Vasquez, or his duly appointed successor), certifying as to the following matters:

(a) no Recapture Event has occurred with respect to any Project since the date of the prior Annual Compliance Certificate (or, in the case of the first Annual Compliance Certificate, since the Signing Date);

(b) all Projects continue to be used as "energy property" within the meaning of Section 48 of the Code;

(c) all prevailing wage, apprenticeship, and domestic content requirements with respect to each Project continue to be satisfied;

(d) no material litigation, proceeding, or governmental investigation is pending or, to the knowledge of CBR, threatened with respect to CBR, any Project Company, the Partnership, or the Projects that could reasonably be expected to adversely affect the Transferred Credits; and

(e) no IRS audit, examination, or inquiry is pending or, to the knowledge of CBR, threatened with respect to the Transferred Credits or the ITCs generated by the Projects.

Each Annual Compliance Certificate shall be delivered together with such supporting documentation as Purchaser may reasonably request.

Section 4.10 Restrictions on Transfer of Obligations. CBR shall not assign, delegate, or otherwise transfer any of its obligations under this Agreement to any other Person without the prior written consent of Purchaser, which consent may be granted or withheld in Purchaser's sole discretion. Any purported assignment, delegation, or transfer in violation of this Section 4.10 shall be null and void and of no force or effect. Notwithstanding the foregoing, no assignment or transfer of CBR's obligations hereunder shall relieve CBR of its primary liability under this Agreement unless Purchaser expressly agrees in writing to release CBR from such liability.

ARTICLE V

SURVIVAL; TERM

Section 5.1 Survival Period. The representations, warranties, covenants, and indemnification obligations of CBR under this Agreement shall survive the execution and delivery of this Agreement, the Closing Date, and the consummation of the transactions contemplated by the TCPA and the other Transaction Documents, and shall remain in full force and effect until the date that is sixty (60) days following the expiration of the last Recapture Period applicable to any Project (the "Survival Period"). Given that the last Project to achieve COD is Amistad Solar, LLC, with a COD of November 18, 2023, the Recapture Period for Amistad Solar expires on November 18, 2028; accordingly, the Survival Period is expected to extend through approximately January 17, 2029. The Recapture Period and Survival Period for each Project are set forth in detail in Exhibit D hereto.

Notwithstanding the foregoing, any claim for indemnification under this Agreement that is asserted in writing by Purchaser to CBR prior to the expiration of the Survival Period shall survive the expiration of the Survival Period and shall continue in full force and effect until the final resolution and payment of such claim. For the avoidance of doubt, the Survival Period does not limit any obligation of CBR with respect to a claim that has been timely asserted in writing prior to the expiration of the Survival Period.

Section 5.2 Termination. This Agreement shall terminate upon the later of:

(a) the expiration of the Survival Period, provided that no claims under this Agreement are pending or unresolved as of such date; and

(b) the date on which all pending claims under this Agreement have been finally resolved and all indemnity payments required under this Agreement have been made in full.

Upon termination of this Agreement, the obligations of the Parties hereunder shall cease, except that (i) the provisions of Article VI (Limitations on Liability), Article VII (Dispute Resolution), and Article VIII (Miscellaneous) shall survive such termination, and (ii) any rights and obligations that, by their nature, are intended to survive termination shall so survive.

ARTICLE VI

LIMITATIONS ON LIABILITY

Section 6.1 Aggregate Cap. As set forth in Section 2.4, CBR's aggregate cumulative liability under Article II of this Agreement shall not exceed the Cap of Sixty-Nine Million Dollars ($69,000,000), being one hundred twenty-five percent (125%) of the Aggregate Purchase Price of Fifty-Five Million Two Hundred Thousand Dollars ($55,200,000) (i.e., $55,200,000 × 1.25 = $69,000,000). The Cap shall apply to the cumulative total of all indemnity payments made by CBR under this Agreement, inclusive of base indemnity amounts, Gross-Up Amounts, interest, penalties, and reimbursed costs and expenses. The Cap shall not apply to, and shall not limit, any liability of CBR arising from fraud, willful misconduct, or criminal conduct.

Section 6.2 Sole Remedy. Except in the case of fraud, willful misconduct, or criminal conduct, this Agreement and the indemnification provisions set forth in the TCPA shall provide the sole and exclusive remedy of Purchaser and the other Indemnified Parties with respect to any claim arising out of or relating to any ITC recapture, disallowance, reduction, or other unavailability of the Transferred Credits, and no Indemnified Party shall be entitled to pursue any other claim, action, or remedy at law or in equity with respect to such matters. Nothing in this Section 6.2 shall be construed to limit any right of Purchaser under the TCPA or any other Transaction Document with respect to matters that are not related to the indemnification provided under this Agreement.

Section 6.3 Mitigation. Each Party shall use commercially reasonable efforts to mitigate any losses, damages, or costs that may give rise to, or increase the amount of, an Indemnified Tax Loss. Without limiting the generality of the foregoing:

(a) Purchaser shall take all reasonable steps to preserve the benefit of the Transferred Credits, including timely filing all federal income tax returns claiming such credits in accordance with applicable law and IRS guidance, and taking any corrective actions that may be available under IRS guidance to cure or mitigate any Disallowance Event; and

(b) CBR shall take all reasonable steps to prevent or mitigate any Recapture Event or Disallowance Event, including maintaining each Project in compliance with the requirements of Section 48 of the Code and cooperating fully with Purchaser and the IRS as set forth in Article IV.

The failure by either Party to take reasonable mitigation steps shall reduce the indemnification obligations of CBR hereunder to the extent that such failure materially increased the amount of the Indemnified Tax Loss.

Section 6.4 No Consequential Damages. EXCEPT TO THE EXTENT THAT ANY SUCH DAMAGES (A) ARE INCLUDED IN THE GROSS-UP AMOUNT CALCULATED IN ACCORDANCE WITH SECTION 2.3, (B) ARE PAYABLE TO A TAXING AUTHORITY (INCLUDING, WITHOUT LIMITATION, ANY PENALTIES, INTEREST, OR ADDITIONS TO TAX ASSESSED BY THE IRS), OR (C) ARISE FROM FRAUD, WILLFUL MISCONDUCT, OR CRIMINAL CONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY DAMAGES FOR LOST PROFITS, LOSS OF BUSINESS, DIMINUTION IN VALUE, OR LOSS OF GOODWILL, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

ARTICLE VII

DISPUTE RESOLUTION

Section 7.1 Negotiation. In the event of any dispute, controversy, or claim arising out of or relating to this Agreement, including (without limitation) any dispute regarding the interpretation, breach, termination, or validity of this Agreement (a "Dispute"), the Parties shall first attempt in good faith to resolve such Dispute through direct negotiations between senior executives of the Parties having authority to settle such Dispute. Either Party may initiate such negotiations by delivering written notice to the other Party describing the Dispute in reasonable detail. The Parties shall use good-faith efforts to resolve such Dispute through senior executive discussions for a period of not less than thirty (30) days following the date of such notice (the "Negotiation Period"). During the Negotiation Period, the senior executives designated by the Parties (who shall initially be Marcus Calloway, Chairman & CEO of CBR, and Gerald Fontaine, CEO of Purchaser, or their respective designees) shall meet in person or by videoconference at least once and shall exchange such information as may be reasonably necessary to facilitate a resolution of the Dispute.

Section 7.2 Independent Tax Expert. If a Dispute relates primarily to a tax calculation, a technical tax issue, or the determination of whether a particular event constitutes a Recapture Event or Disallowance Event (a "Tax Dispute"), and such Tax Dispute has not been resolved during the Negotiation Period, either Party may, by written notice to the other Party, propose that the Parties jointly engage an independent, nationally recognized tax advisor (the "Independent Tax Expert") to render a determination with respect to such Tax Dispute. The Independent Tax Expert shall initially be Greystone Worthington, LLC (or such firm's successor), and if Greystone Worthington, LLC is unavailable or conflicted, the Parties shall mutually agree upon another nationally recognized independent tax advisory firm of comparable expertise and reputation within fifteen (15) business days following the date of the proposing Party's notice.

The Independent Tax Expert shall be retained pursuant to an engagement letter agreed upon by both Parties and shall render its determination within sixty (60) days after being retained (or such longer period as the Parties may agree). Each Party shall have the opportunity to submit written materials and make oral presentations to the Independent Tax Expert. The determination of the Independent Tax Expert shall be final and binding upon the Parties, absent manifest error. The costs and fees of the Independent Tax Expert shall be borne equally by the Parties unless the Independent Tax Expert determines that one Party's position was frivolous or without reasonable basis, in which case the losing Party shall bear all such costs and fees.

Section 7.3 Litigation. Any Dispute that is not resolved pursuant to Sections 7.1 or 7.2 (including any Dispute that is not a Tax Dispute) shall be submitted exclusively to the courts of the State of New York sitting in New York County, or the United States District Court for the Southern District of New York. Each Party hereby irrevocably and unconditionally (a) submits to the exclusive jurisdiction of such courts for purposes of any action, suit, or proceeding arising out of or relating to this Agreement, (b) consents to the personal jurisdiction of such courts over such Party, (c) waives any objection that i

TAX INDEMNITY AGREEMENT
dated as of
September 21, 2023
by
CALLOWAY-BRIGGS RENEWABLES INC.
as Indemnitor
in favor of
PINEHURST INSURANCE GROUP, INC.
as Indemnitee
TAX INDEMNITY AGREEMENT
THIS TAX INDEMNITY AGREEMENT (this "Agreement") is made and entered into as of September 21, 2023 (the "Signing Date"), by and between:
CALLOWAY-BRIGGS RENEWABLES INC., a Texas corporation ("Indemnitor" or "CBR"), with its principal offices at 2700 Post Oak Boulevard, Suite 1450, Houston, TX 77056, Employer Identification Number 84-3291076,
in favor of
PINEHURST INSURANCE GROUP, INC., a Connecticut corporation ("Indemnitee" or "Purchaser"), with its principal offices at 175 Constitution Plaza, Hartford, CT 06103, Employer Identification Number 06-1938274.
CBR and Purchaser are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, CBR is the sole member of CBR Solstice Manager, LLC, a Delaware limited liability company ("CBR Manager"), Employer Identification Number 88-4071597, which is the managing member of Solstice Holdings, LLC, a Delaware limited liability company (the "Partnership"), Employer Identification Number 88-4071523;
WHEREAS, the Partnership holds one hundred percent (100%) of the membership interests in seven project companies, each organized as a Delaware limited liability company and treated as a disregarded entity for federal income tax purposes (each, a "Project Company" and collectively, the "Project Companies"), each of which owns and operates a utility-scale solar photovoltaic generating facility (each, a "Project" and collectively, the "Solstice Portfolio" or the "Projects"), with a combined nameplate capacity of 420 megawatts (direct current) ("MW(dc)"), as more fully described in Exhibit A hereto, consisting of the following:
(i) Pecos Sun Solar, LLC (85 MW(dc), Reeves County, Texas);
(ii) Red Mesa Solar, LLC (70 MW(dc), Pecos County, Texas);
(iii) Coyote Flats Solar, LLC (65 MW(dc), Ward County, Texas);
(iv) Llano Verde Solar, LLC (55 MW(dc), Hudspeth County, Texas);
(v) Cimarron Solar, LLC (50 MW(dc), Lea County, New Mexico);
(vi) Sandoval Ridge Solar, LLC (50 MW(dc), Sandoval County, New Mexico); and
(vii) Amistad Solar, LLC (45 MW(dc), Val Verde County, Texas);
WHEREAS, the Projects constitute "energy property" eligible for investment tax credits ("ITCs") under Section 48 of the Internal Revenue Code of 1986, as amended (the "Code"), at an aggregate ITC rate of forty percent (40%), consisting of (a) a base rate of thirty percent (30%) pursuant to the satisfaction of the prevailing wage and apprenticeship requirements of the Inflation Reduction Act of 2022 ("IRA") as set forth in Section 48(a) of the Code, and (b) a ten percent (10%) domestic content bonus credit adder pursuant to Section 48(a)(12) of the Code;
WHEREAS, the aggregate eligible basis of the Projects is Three Hundred Eighty-Four Million Six Hundred Thousand Dollars ($384,600,000), generating total ITCs in the amount of One Hundred Fifty-Three Million Eight Hundred Forty Thousand Dollars ($153,840,000);
WHEREAS, certain of such ITCs in the aggregate face-value amount of Sixty-Four Million Eight Hundred Thousand Dollars ($64,800,000) have been designated for transfer under Section 6418 of the Code, of which Sixty Million Dollars ($60,000,000) (the "Transferred Credits") are being sold to Purchaser and Four Million Eight Hundred Thousand Dollars ($4,800,000) are being retained by CBR for its own use;
WHEREAS, CBR (in the capacity of "Seller") and Purchaser (in the capacity of "Buyer") have entered into that certain Tax Credit Purchase Agreement dated as of September 21, 2023 (the "TCPA"), pursuant to which CBR has agreed to sell, and Purchaser has agreed to purchase, the Transferred Credits at a purchase price of $0.92 per $1.00 of credit, for an aggregate purchase price of Fifty-Five Million Two Hundred Thousand Dollars ($55,200,000) (the "Aggregate Purchase Price");
WHEREAS, as a material condition precedent to Purchaser's obligations under the TCPA and as an inducement for Purchaser to consummate the transactions contemplated thereby, CBR has agreed to indemnify Purchaser against certain tax losses arising from the recapture, disallowance, reduction, or other unavailability of the Transferred Credits upon the terms and subject to the conditions set forth in this Agreement; and
WHEREAS, this Agreement is being entered into simultaneously with the execution and delivery of the TCPA and the other Transaction Documents (as defined herein), and shall become effective upon the Closing Date (as defined herein).
NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties contained herein, 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 Agreement shall have the meanings ascribed to them in the TCPA unless the context otherwise requires.
"Affiliate" means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For purposes of this definition, "control" (including the terms "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 ownership of voting securities, by contract, or otherwise.
"Aggregate Purchase Price" means Fifty-Five Million Two Hundred Thousand Dollars ($55,200,000), being the product of the Credit Amount ($60,000,000) multiplied by $0.92, as set forth in the TCPA.
"Applicable Tax Rate" means the highest marginal federal corporate income tax rate in effect under the Code for the relevant taxable year. As of the Signing Date, the Applicable Tax Rate is twenty-one percent (21%).
"Cap" means Sixty-Nine Million Dollars ($69,000,000), being one hundred twenty-five percent (125%) of the Aggregate Purchase Price (i.e., $55,200,000 × 1.25 = $69,000,000), as more fully described in Section 2.4 and Exhibit E hereto.
"Capital Contribution Agreement" means that certain Capital Contribution Agreement dated as of September 21, 2023, by and among Ridgeline Capital Partners, LLC, CBR Manager, and Solstice Holdings, LLC, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Closing Date" means December 8, 2023, or such other date as CBR and Purchaser may mutually agree in writing as the closing date under the TCPA.
"Code" means the Internal Revenue Code of 1986, as amended from time to time, and any successor statute thereto. References to any section of the Code shall include any successor provision and any regulations promulgated thereunder (whether in final, temporary, or proposed form), as the same may be in effect from time to time.
"COD" or "Commercial Operation Date" means, with respect to each Project, the date on which such Project achieves commercial operation as certified by the applicable independent engineer in accordance with the terms of the applicable engineering, procurement, and construction agreement. The individual CODs of the Projects range from September 30, 2023 (Cimarron Solar) through November 18, 2023 (Amistad Solar), with a capacity-weighted-average COD of October 25, 2023, as more fully set forth in Exhibit A and Exhibit D hereto.
"Credit Amount" means Sixty Million Dollars ($60,000,000), being the face value of the Transferred Credits to be transferred to Purchaser pursuant to the TCPA and the Transfer Election.
"Disallowance Event" means any final determination by the Internal Revenue Service, any court of competent jurisdiction, or any other governmental authority that any portion of the Transferred Credits is not allowable to, or may not be claimed by, the Purchaser on its federal income tax return for any reason, including (without limitation) a determination that (a) the Projects or any of them do not constitute "energy property" under Section 48 of the Code, (b) the Transfer Election is invalid or was not properly made, (c) the eligible basis of the Projects is less than the amount upon which the Transferred Credits were calculated, or (d) the ITC rate applicable to the Projects is less than forty percent (40%).
"EPC Contractor" means Vasquez Brothers Construction, Inc., a Texas corporation, Employer Identification Number 75-2648103, which served as the primary engineering, procurement, and construction contractor for each of the Projects.
"Escrow Agent" means Clearwater Escrow Services, Inc., a Delaware corporation, serving in its capacity as escrow agent under the Escrow Agreement.
"Escrow Agreement" means that certain Escrow Agreement dated as of September 21, 2023, by and among CBR, Ridgeline Capital Partners, LLC, Pinehurst Insurance Group, Inc., and Clearwater Escrow Services, Inc., as escrow agent, with respect to Escrow Account No. CES-2023-80114, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Governmental Authority" means any federal, state, local, or foreign government or any court, tribunal, administrative agency, commission, regulatory body, or other governmental instrumentality, authority, or entity, including the Internal Revenue Service and any state or local tax authority.
"Gross-Up Amount" has the meaning set forth in Section 2.3.
"Indemnified Tax Loss" has the meaning set forth in Section 2.1.
"IRS" means the Internal Revenue Service of the United States Department of the Treasury.
"ITC" means an investment tax credit under Section 48 of the Code.
"ITC Rate" means forty percent (40%), consisting of the thirty percent (30%) base ITC rate applicable to Projects that satisfy the prevailing wage and apprenticeship requirements under Section 48(a) of the Code (as enhanced by the five-times multiplier under IRA § 48(a)), plus the ten percent (10%) domestic content bonus credit adder under Section 48(a)(12) of the Code.
"LLCA" means that certain Amended and Restated Limited Liability Company Agreement of Solstice Holdings, LLC, dated as of September 21, 2023, by and among CBR Manager, Ridgeline Capital Partners, LLC, and such other members as may be parties thereto from time to time, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Partnership" or "Solstice Holdings" means Solstice Holdings, LLC, a Delaware limited liability company, Employer Identification Number 88-4071523.
"Person" means any individual, corporation, partnership, limited liability company, joint venture, trust, estate, unincorporated organization, association, governmental authority, or any other entity.
"Project Companies" means the seven Delaware limited liability companies identified in the Recitals hereof, each of which is wholly owned by the Partnership and treated as a disregarded entity for federal income tax purposes, and "Project Company" means any one of them.
"Projects" means the seven utility-scale solar photovoltaic generating facilities owned by the Project Companies, as more fully described in Exhibit A hereto, and "Project" means any one of them.
"Purchaser" means Pinehurst Insurance Group, Inc., a Connecticut corporation.
"Recapture Event" means any event or occurrence causing the recapture of all or any portion of the Transferred Credits under Section 50(a) of the Code, including (without limitation) (a) any sale, exchange, or other disposition of any Project (or any interest therein) during the Recapture Period, (b) any cessation of use of any Project as "energy property" during the Recapture Period, or (c) any other change in circumstances during the Recapture Period that results in recapture of ITCs under Section 50(a) of the Code.
"Recapture Period" means, with respect to each Project, the five-year period beginning on the date such Project is placed in service (i.e., the applicable COD) and ending on the fifth anniversary of such date, as more fully set forth in Exhibit D hereto. For the avoidance of doubt, because the COD of each Project differs, the Recapture Period for each Project shall be calculated independently based on such Project's individual COD.
"Signing Date" means September 21, 2023, the date of execution of this Agreement.
"Solstice Portfolio" means, collectively, the seven Projects.
"Survival Period" has the meaning set forth in Section 5.1.
"Tax-Equity Investor" means Ridgeline Capital Partners, LLC, a Delaware limited liability company, which has made capital contributions to the Partnership in connection with the partnership-flip tax-equity structure described in the LLCA and the Capital Contribution Agreement.
"Tax Credit Purchase Agreement" or "TCPA" means that certain Tax Credit Purchase Agreement dated as of September 21, 2023, by and between CBR, as seller, and Purchaser, as buyer, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
"Transaction Documents" means, collectively, the TCPA, this Agreement, the LLCA, the Capital Contribution Agreement, the Escrow Agreement, that certain Purchase Option Agreement dated as of September 21, 2023, by and among CBR and Ridgeline Capital Partners, LLC, that certain Intercompany Contribution Agreement dated as of September 21, 2023, by and among CBR, CBR Manager, and the Partnership, and all certificates, instruments, agreements, and other documents executed and delivered in connection with the transactions contemplated thereby.
"Transfer Election" means the election made by each applicable Project Company (or the Partnership, as applicable) under Section 6418 of the Code to transfer the Transferred Credits to Purchaser in exchange for the consideration set forth in the TCPA.
"Transfer Election Statement" means, with respect to each applicable Project Company, the statement or form (including IRS Form 3800 and any successor or additional form prescribed by the IRS) filed with the IRS in connection with the Transfer Election, together with all supporting documentation required under Section 6418 of the Code and applicable Treasury Regulations or IRS guidance.
"Transferred Credits" means ITCs in the aggregate face value of Sixty Million Dollars ($60,000,000) that are being transferred to Purchaser pursuant to the TCPA and the Transfer Election under Section 6418 of the Code, as more fully described in Exhibit B hereto.
"Treasury Regulations" means the final, temporary, and proposed regulations promulgated under the Code by the United States Department of the Treasury, as the same may be in effect from time to time.
Section 1.2 Rules of Construction. For purposes of this Agreement:
(a) References to "Articles," "Sections," "Exhibits," and "Schedules" are to the articles, sections, exhibits, and schedules of this Agreement unless otherwise indicated.
(b) Words in the singular include the plural and words in the plural include the singular.
(c) References to any gender include every other gender.
(d) The word "including" and words of similar import mean "including, without limitation" and shall not be construed to limit any general statement to the specific or similar items or matters immediately following it.
(e) References to any statute, rule, or regulation include any amendment thereof and any successor statute, rule, or regulation, together with any regulations and guidance promulgated thereunder.
(f) References to any agreement, instrument, or document mean such agreement, instrument, or document as it may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof.
(g) The headings in this Agreement are for convenience of reference only and shall not affect the interpretation or construction of this Agreement.
(h) References to "days" mean calendar days unless "business days" is expressly specified. A "business day" means any day other than a Saturday, Sunday, or a day on which banking institutions in Houston, Texas or Hartford, Connecticut are authorized or required by law to be closed.
(i) References to "$" and "Dollars" mean the lawful currency of the United States of America.
(j) The Parties have participated jointly in the negotiation and drafting of this Agreement. 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
INDEMNIFICATION
Section 2.1 Indemnification Obligation. CBR hereby agrees to indemnify, defend, and hold harmless Purchaser and its Affiliates, and their respective officers, directors, employees, agents, successors, and permitted assigns (each, an "Indemnified Party") from and against any and all Indemnified Tax Losses. As used in this Agreement, "Indemnified Tax Loss" means any and all losses, liabilities, damages, costs, charges, or expenses (including, without limitation, reasonable attorneys' fees, accountants' fees, consultant fees, interest, and penalties) actually incurred or suffered by any Indemnified Party as a result of, arising out of, or in connection with:
(a) any Recapture Event with respect to all or any portion of the Transferred Credits, including any recapture of ITCs under Section 50(a) of the Code resulting from a sale, disposition, cessation of qualified use, or other change affecting any Project during the applicable Recapture Period;
(b) any Disallowance Event with respect to all or any portion of the Transferred Credits, including any determination by the IRS or any court or other Governmental Authority that any portion of the Transferred Credits is not allowable to or may not be claimed by the Purchaser;
(c) any breach by CBR of any of its representations, warranties, or covenants contained in this Agreement or in Articles IV and V of the TCPA;
(d) any failure by CBR, any Project Company, or the Partnership to make a valid Transfer Election under Section 6418 of the Code with respect to the Transferred Credits, including any failure to properly prepare, timely file, or otherwise perfect the Transfer Election Statements or to complete the IRS pre-filing registration requirements;
(e) any determination by the IRS, any court, or any other Governmental Authority that the Projects, or any of them, do not constitute "energy property" eligible for ITCs under Section 48 of the Code, or that the eligible basis of any Project is less than the amount set forth in Exhibit B hereto;
(f) any determination that the ITC rate applicable to the Projects, or any of them, is less than forty percent (40%), including (i) any reduction or loss of the ten percent (10%) domestic content bonus credit adder under Section 48(a)(12) of the Code, (ii) any reduction or loss of the prevailing wage and apprenticeship five-times (5x) multiplier resulting in the application of a base ITC rate of six percent (6%) rather than thirty percent (30%), or (iii) any combination thereof; and
(g) any penalties, interest, additions to tax, or other amounts assessed against or imposed upon Purchaser by the IRS or any other taxing authority in connection with any of the foregoing.
For the avoidance of doubt, the indemnification obligation of CBR under this Section 2.1 is a primary obligation and not merely a guaranty of payment, and shall not be contingent upon or subject to any requirement that Purchaser first proceed against any other Person or exhaust any other remedy before seeking indemnification hereunder.
Section 2.2 Indemnity Amount. The base indemnity amount for any Indemnified Tax Loss shall be calculated as follows:
(a) Dollar-for-Dollar Credit Reimbursement. The base indemnity amount shall equal one hundred percent (100%) of the dollar amount of the Transferred Credits that are recaptured, disallowed, reduced, or otherwise rendered unavailable to Purchaser. By way of illustration, if Ten Million Dollars ($10,000,000) of the Sixty Million Dollars ($60,000,000) of Transferred Credits are recaptured pursuant to a Recapture Event, the base indemnity amount shall be Ten Million Dollars ($10,000,000).
(b) Interest and Penalties. In addition to the base indemnity amount, CBR shall reimburse Purchaser for any and all interest, penalties, and additions to tax assessed by the IRS or any other taxing authority in connection with such Indemnified Tax Loss, including (without limitation) any underpayment interest under Section 6601 of the Code and any accuracy-related penalties under Section 6662 of the Code.
(c) Gross-Up Amount. In addition to the amounts described in clauses (a) and (b) above, CBR shall pay to Purchaser the Gross-Up Amount, as calculated in accordance with Section 2.3.
(d) Other Costs and Expenses. CBR shall reimburse Purchaser for all reasonable and documented out-of-pocket costs and expenses incurred by Purchaser in connection with any Indemnified Tax Loss, including reasonable attorneys' fees, accountants' fees, and consultant fees, to the extent such costs and expenses are not otherwise recovered by Purchaser.
Section 2.3 Gross-Up. Each indemnity payment made by CBR to Purchaser under this Article II shall include a gross-up amount (the "Gross-Up Amount") such that, after the payment by Purchaser of all federal, state, and local income taxes imposed on or with respect to the receipt of such indemnity payment, the Purchaser retains a net after-tax amount equal to the full amount of the Indemnified Tax Loss (including the base indemnity amount, interest, penalties, and all costs and expenses as described in Section 2.2).
The Gross-Up Amount shall be calculated in accordance with the following formula:
Gross-Up Amount = (Indemnified Tax Loss × Applicable Tax Rate) ÷ (1 – Applicable Tax Rate)
The purpose of the gross-up is to ensure that Purchaser is made whole on a complete after-tax basis for (i) the lost credit benefit arising from the recapture, disallowance, or reduction of the Transferred Credits, and (ii) any incremental income tax cost incurred by Purchaser as a result of receiving the indemnity payment itself, which is treated as taxable income to Purchaser.
Illustration. By way of example, assuming (i) an Indemnified Tax Loss of $10,000,000 (exclusive of the Gross-Up Amount), (ii) the Applicable Tax Rate is twenty-one percent (21%), and (iii) no state or local income taxes apply for purposes of this illustration:
Gross-Up Amount = ($10,000,000 × 0.21) / (1 – 0.21)
Gross-Up Amount = $2,100,000 / 0.79
Gross-Up Amount = $2,658,228 (rounded to the nearest dollar)
Total indemnity payment = $10,000,000 + $2,658,228 = $12,658,228
In such example, the Purchaser would receive a total indemnity payment of $12,658,228. After paying federal income tax of $2,658,228 (i.e., 21% × $12,658,228 = $2,658,228 (rounded)) on such indemnity payment, Purchaser would retain a net amount of approximately $10,000,000, thereby making Purchaser whole on an after-tax basis. If state or local income taxes are applicable, the Gross-Up Amount shall be appropriately adjusted to account for the combined effective tax rate.
Section 2.4 Aggregate Cap. Notwithstanding anything to the contrary in this Agreement, the aggregate cumulative liability of CBR under this Article II shall not exceed the Cap, which is Sixty-Nine Million Dollars ($69,000,000). The Cap was calculated as one hundred twenty-five percent (125%) of the Aggregate Purchase Price, as follows:
Cap = $55,200,000 × 1.25 = $69,000,000
The Cap shall apply to the cumulative total of all indemnity payments made by CBR under this Agreement (including all base indemnity amounts, Gross-Up Amounts, interest, penalties, and reimbursed costs and expenses). Once the aggregate of all indemnity payments made by CBR hereunder equals the Cap, CBR shall have no further obligation to make any indemnity payment under this Agreement. The calculation of the Cap is set forth in further detail in Exhibit E hereto. For the avoidance of doubt, the Cap is a cumulative cap applicable to the aggregate of all claims under this Article II and is not a per-claim limitation.
Section 2.5 Payment Timing. CBR shall make any indemnity payment required under this Article II within thirty (30) calendar days after the earlier of:
(a) the date on which there is a "final determination" (within the meaning of Section 1313(a) of the Code) giving rise to the Indemnified Tax Loss, including (without limitation) a decision by the United States Tax Court that has become final, a closing agreement entered into under Section 7121 of the Code, an accepted Form 870-AD or similar form, or the expiration of the time for filing a claim for refund or the time for instituting a suit with respect thereto; or
(b) the date on which Purchaser makes payment of any additional federal, state, or local income tax, interest, penalty, or addition to tax attributable to a Recapture Event or Disallowance Event, as evidenced by written notice from Purchaser to CBR, together with reasonable supporting documentation.
All indemnity payments shall be made by wire transfer of immediately available funds to an account designated in writing by Purchaser (or such other method of payment as the Parties may mutually agree). If CBR fails to make any indemnity payment when due, such unpaid amount shall bear interest from the date due until the date paid at a rate equal to the lesser of (x) the prime rate as published in The Wall Street Journal on the date such payment was due, plus two percent (2%) per annum, and (y) the maximum rate permitted by applicable law.
Section 2.6 No Duplication. To the extent that Purchaser actually recovers any amount from any third party (including, without limitation, any insurance carrier, the EPC Contractor, or any other Person obligated to Purchaser pursuant to any separate indemnification, guarantee, warranty, or insurance arrangement) with respect to the same Indemnified Tax Loss for which CBR has made or is obligated to make an indemnity payment under this Agreement, the amount of such third-party recovery (net of any costs and expenses incurred by Purchaser in obtaining such recovery) shall reduce CBR's indemnity obligation under this Agreement on a dollar-for-dollar basis. Purchaser shall promptly notify CBR of any such third-party recovery. Nothing in this Section 2.6 shall require Purchaser to pursue any third-party claim prior to seeking indemnification from CBR hereunder, and CBR's indemnity obligation hereunder shall remain primary regardless of the availability of any other source of recovery.
Section 2.7 Right of Offset. Without prejudice to any other rights or remedies available to Purchaser, Purchaser shall have the right, upon thirty (30) days' prior written notice to CBR, to offset any amounts owed by CBR to Purchaser under this Agreement against any amounts otherwise payable by Purchaser to CBR under the TCPA or any other Transaction Document. Such written notice shall specify the basis for the offset, the amount being offset, and the Indemnified Tax Loss giving rise to the offset claim. The exercise by Purchaser of its offset right under this Section 2.7 shall not constitute a waiver of any other right or remedy available to Purchaser hereunder or under any other Transaction Document.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CBR
CBR hereby represents and warrants to Purchaser as of the Signing Date and as of the Closing Date as follows:
Section 3.1 Organization and Good Standing. CBR is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas, Texas Secretary of State File No. 803762114. CBR is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the ownership of its properties or the conduct of its business requires such qualification or licensing, except where the failure to be so qualified or licensed would not reasonably be expected to have a material adverse effect on CBR's ability to perform its obligations under this Agreement. Each Project Company is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware and is duly qualified to do business in the state in which its respective Project is located.
Section 3.2 Authority and Enforceability. CBR has full corporate power and authority to execute, deliver, and perform this Agreement and each other Transaction Document to which it is a party, and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance by CBR of this Agreement and each such other Transaction Document have been duly authorized by all necessary corporate action on the part of CBR, including all requisite approvals of CBR's board of directors (by unanimous written consent dated September 18, 2023). This Agreement has been duly executed and delivered by CBR and constitutes the valid and binding obligation of CBR, enforceable against CBR 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, and to general equity principles (whether considered in a proceeding in equity or at law).
Section 3.3 No Conflicts. The execution, delivery, and performance by CBR of this Agreement, and the consummation of the transactions contemplated hereby, do not and will not (a) violate or conflict with the Articles of Incorporation or Bylaws of CBR, (b) violate or conflict with any applicable law, statute, regulation, rule, order, judgment, or decree of any Governmental Authority binding upon CBR or any of its properties or assets, (c) result in a breach of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or give rise to any right of termination, cancellation, acceleration, or modification of, any material agreement, contract, instrument, or obligation to which CBR is a party or by which CBR or any of its properties or assets is bound, or (d) result in the creation or imposition of any lien, encumbrance, security interest, or other charge upon any of CBR's properties or assets, including the Transferred Credits.
Section 3.4 ITC Eligibility. Each Project constitutes, or upon achievement of its COD will constitute, "energy property" within the meaning of Section 48(a)(3) of the Code. Each Project has been or will be "placed in service" within the meaning of Section 48 of the Code and applicable Treasury Regulations on or before December 31, 2023. The aggregate eligible basis of the Projects (determined in accordance with Section 48(a)(1) of the Code) is not less than Three Hundred Eighty-Four Million Six Hundred Thousand Dollars ($384,600,000), as set forth in Exhibit B hereto. Each Project qualifies for the thirty percent (30%) base ITC rate by reason of the satisfaction of the prevailing wage and apprenticeship requirements set forth in Section 48(a) of the Code, as modified by the IRA. Each Project qualifies for the ten percent (10%) domestic content bonus credit adder under Section 48(a)(12) of the Code and applicable IRS guidance, including IRS Notice 2023-38 and any successor guidance. Accordingly, the aggregate ITC rate applicable to the Projects is forty percent (40%).
Section 3.5 Prevailing Wage and Apprenticeship Compliance. All construction, alteration, and repair work on the Projects has been performed, and will continue to be performed, in compliance with the prevailing wage requirements set forth in IRA Section 45(b)(7) (as applied through Section 48(a) of the Code) and the apprenticeship requirements set forth in IRA Section 45(b)(8) (as applied through Section 48(a) of the Code). The EPC Contractor, Vasquez Brothers Construction, Inc. (EIN 75-2648103), has certified to CBR in writing its compliance with all applicable prevailing wage and apprenticeship requirements for each of the Projects, including the payment of wages at rates not less than the prevailing rates determined by the Secretary of Labor for corresponding classes of laborers and mechanics employed on projects of a similar character in the locality in which the work was performed. CBR has maintained and preserved, and shall continue to maintain and preserve, records sufficient to substantiate compliance with all prevailing wage and apprenticeship requirements, including certified payroll records, apprenticeship program registration documentation, and good-faith-effort documentation for each Project.
Section 3.6 Domestic Content. The Projects satisfy the domestic content requirements of Section 48(a)(12) of the Code and applicable IRS guidance, including IRS Notice 2023-38 and any successor guidance, notices, or regulations. Specifically, all steel and iron components incorporated into the Projects were produced in the United States (including all stages of the manufacturing process, from initial melting through application of coatings), and the manufactured products incorporated into the Projects meet the applicable percentage thresholds for domestic content as set forth in the applicable IRS guidance. CBR has obtained and maintained certifications from the EPC Contractor and relevant suppliers with respect to domestic content compliance and has documentation sufficient to substantiate such compliance.
Section 3.7 Transfer Election Validity. Each applicable Project Company (or the Partnership, as the case may be) is an "eligible taxpayer" entitled to make a Transfer Election under Section 6418 of the Code and applicable Treasury Regulations or IRS guidance (including IRS proposed regulations under Section 6418 published at 88 Fed. Reg. 40528 (June 21, 2023), and any final regulations). Pinehurst Insurance Group, Inc. is a valid "transferee taxpayer" eligible to receive the Transferred Credits under Section 6418 of the Code. The Transfer Election Statements have been or will be duly prepared and timely filed with the applicable federal income tax returns for the taxable year in which the applicable Projects are placed in service. CBR has completed, or will timely complete, all IRS pre-filing registration requirements for each Project, including any registration through the IRS Energy Credits Online portal, and has obtained or will obtain a valid registration number for each Project prior to making the Transfer Election.
Section 3.8 No Recapture Events. No Recapture Event has occurred with respect to any Project or any portion of the Transferred Credits as of the Signing Date. CBR is not aware of any facts, circumstances, events, or conditions that exist as of the Signing Date that would reasonably be expected to give rise to a Recapture Event during the Recapture Period. No Project Company has sold, exchanged, disposed of, or otherwise transferred any Project (or any interest therein), and no Project has undergone any change in use that would give rise to recapture under Section 50(a) of the Code.
Section 3.9 No Prior Transfers or Encumbrances on Credits. The Transferred Credits have not been previously sold, assigned, transferred, pledged, encumbered, hypothecated, or otherwise disposed of to any Person other than Purchaser pursuant to the TCPA. No Person other than Purchaser has any right, title, interest, lien, security interest, encumbrance, or claim of any kind with respect to the Transferred Credits. CBR has not entered into, and is not a party to, any agreement, arrangement, or understanding that would conflict with or impair the transfer of the Transferred Credits to Purchaser in accordance with the TCPA and this Agreement.
Section 3.10 Tax Returns and Compliance. CBR and each Project Company have filed (or will timely file, taking into account any valid extensions) all federal, state, and local tax returns required to be filed by them as of the Signing Date. All such tax returns are true, correct, and complete in all material respects. All taxes due and payable with respect to such tax returns have been timely paid or will be timely paid when due. As of the Signing Date, no audits, examinations, investigations, or proceedings by the IRS or any other tax authority are pending or, to the knowledge of CBR, threatened with respect to CBR, any Project Company, the Partnership, the Projects, or the ITCs generated by the Projects. There are no outstanding waivers or extensions of any statute of limitations with respect to any taxes or tax returns of CBR or any Project Company relating to the Projects.
Section 3.11 No Litigation. As of the Signing Date, no litigation, action, suit, proceeding, claim, or governmental investigation is pending or, to the knowledge of CBR, threatened against CBR, any Project Company, the Partnership, or any of the Projects that could reasonably be expected to adversely affect the validity, availability, or amount of the Transferred Credits, or the ability of CBR to perform its obligations under this Agreement or any other Transaction Document. CBR has not received any written communication from any Governmental Authority indicating that any of the foregoing is contemplated.
ARTICLE IV
COVENANTS
Section 4.1 Maintenance of Qualified Use. CBR shall cause each Project Company to maintain and operate each Project as "energy property" within the meaning of Section 48 of the Code throughout the applicable Recapture Period. Without limiting the generality of the foregoing, during each Project's Recapture Period, CBR shall not, and shall cause each Project Company not to, without the prior written consent of Purchaser:
(a) sell, exchange, dispose of, convey, transfer, or otherwise alienate any Project or any material portion thereof (including any material component or equipment that constitutes part of the eligible basis of such Project);
(b) enter into any lease, sublease, license, or similar arrangement with respect to any Project (or any material portion thereof) that would cause such Project to cease to be "energy property" or that would otherwise trigger a Recapture Event;
(c) cause or permit any cessation of the qualified use of any Project as a solar photovoltaic generating facility during the Recapture Period; or
(d) take, or fail to take, any action that would reasonably be expected to give rise to a Recapture Event.
In the event that any disposition or change in use of a Project is required by applicable law, regulation, or Governmental Authority order, CBR shall promptly notify Purchaser and shall use commercially reasonable efforts to preserve the ITC qualification of the affected Project and to minimize any resulting Recapture Event.
Section 4.2 Continued Compliance with Prevailing Wage and Apprenticeship Requirements. CBR shall maintain and preserve all records relating to prevailing wage and apprenticeship compliance for each Project for a period of not less than seven (7) years following the date each applicable Project is placed in service. Such records shall include, without limitation, certified payroll records, apprenticeship program documentation, wage rate determinations, and all certifications received from the EPC Contractor or any subcontractor. CBR shall promptly cure any non-compliance with prevailing wage or apprenticeship requirements discovered during the Recapture Period, to the extent such non-compliance is curable under applicable IRS guidance (including, without limitation, correction and penalty procedures set forth in IRS Notice 2022-61, IRS proposed regulations, or any final guidance), and shall promptly notify Purchaser of any such non-compliance and the corrective actions taken.
Section 4.3 Domestic Content Compliance. CBR shall maintain and preserve all records and documentation substantiating the domestic content qualification of each Project under Section 48(a)(12) of the Code and applicable IRS guidance for a period of not less than seven (7) years following the date each applicable Project is placed in service. Such records shall include, without limitation, supplier certifications, bills of materials, country-of-origin documentation, and cost calculations demonstrating that the applicable percentage thresholds for domestic content have been satisfied. CBR shall promptly notify Purchaser of any facts or circumstances that could reasonably be expected to affect the domestic content qualification of any Project.
Section 4.4 Transfer Election Filings. CBR shall cause each applicable Project Company to timely prepare and file the Transfer Election Statement with such Project Company's federal income tax return (or the Partnership's federal income tax return, as applicable) for the taxable year in which the applicable Project is placed in service. CBR shall ensure that all Transfer Election Statements are complete, accurate, and in compliance with Section 6418 of the Code and all applicable Treasury Regulations and IRS guidance. CBR shall provide Purchaser with copies of all filed Transfer Election Statements, together with evidence of IRS acceptance thereof (including any registration confirmation or acknowledgment), within ten (10) business days following the date of such filing. CBR shall promptly notify Purchaser of any deficiency, error, or IRS inquiry relating to any Transfer Election Statement and shall take all corrective actions reasonably necessary to perfect such Transfer Election.
Section 4.5 Notice of Recapture or Disallowance Events. CBR shall promptly notify Purchaser in writing (in no event later than five (5) business days after CBR becomes aware of such event) of:
(a) any event, occurrence, or circumstance that has occurred or that could reasonably be expected to constitute a Recapture Event or a Disallowance Event;
(b) any inquiry, audit, examination, notice of deficiency, notice of proposed adjustment, revenue agent's report, 30-day letter, 90-day letter, or other communication from the IRS or any other taxing authority relating to the Transferred Credits, the ITCs, the Projects, or the Transfer Elections;
(c) any sale, disposition, lease, sublease, change in use, or material damage to or destruction of any Project or any material component thereof during the Recapture Period;
(d) any material litigation, proceeding, or governmental investigation that is commenced or threatened against CBR, any Project Company, the Partnership, or any of the Projects that could reasonably be expected to affect the Transferred Credits; and
(e) any material breach of any representation, warranty, or covenant of CBR under this Agreement or the TCPA.
Each notice delivered pursuant to this Section 4.5 shall describe in reasonable detail the nature of the event, the relevant facts and circumstances, the potential impact on the Transferred Credits, and the actions CBR has taken or proposes to take in response thereto.
Section 4.6 Cooperation with Tax Proceedings. CBR shall fully cooperate with Purchaser in connection with any IRS audit, examination, dispute, administrative proceeding, or judicial proceeding relating to the Transferred Credits or any matter that could give rise to an Indemnified Tax Loss. Such cooperation shall include, without limitation:
(a) providing Purchaser and its advisors with access to all relevant books, records, documents, files, and correspondence in the possession or control of CBR, any Project Company, or the Partnership;
(b) making available to Purchaser and its advisors the officers, directors, employees, agents, and representatives of CBR, any Project Company, the EPC Contractor, and the Partnership for interviews, meetings, and testimony as reasonably requested;
(c) executing and delivering such powers of attorney, authorizations, and other documents as Purchaser may reasonably request to facilitate Purchaser's participation in any such proceeding; and
(d) providing Purchaser with prompt notice of all material developments in any such proceeding.
Purchaser shall have the right to participate in (but, except as provided in Section 4.8, not to control) any IRS or other tax authority proceeding relating to the Transferred Credits, at Purchaser's own expense. CBR shall not settle, compromise, or concede any issue in any such proceeding that would adversely affect the Transferred Credits or give rise to an Indemnified Tax Loss without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned, or delayed.
Section 4.7 Insurance. CBR shall maintain, or shall cause the applicable Project Company or the Partnership to maintain, at all times during the Recapture Period, insurance coverage on terms and in amounts no less favorable than those required by the LLCA, including (without limitation):
(a) property (all-risk) insurance for each Project, placed by Sentinel Underwriters, Inc. with Fortis Indemnity Company (or a replacement insurer of comparable financial strength and creditworthiness), in an amount sufficient to cover the full replacement cost of each Project;
(b) commercial general liability insurance with limits of not less than $5,000,000 per occurrence and $10,000,000 in the aggregate;
(c) performance bonds issued by Ironclad Surety Corp. (or a replacement surety of comparable financial strength) in connection with the EPC Contractor's obligations under the applicable engineering, procurement, and construction agreements; and
(d) such other insurance as may be required under the LLCA or any applicable power purchase agreement or interconnection agreement.
CBR shall deliver to Purchaser, upon request, certificates of insurance evidencing such coverage and naming Purchaser as an additional insured to the extent required under the LLCA.
Section 4.8 Tax Contest Provisions. In the event that Purchaser receives notice of any IRS audit, examination, proposed adjustment, or administrative or judicial proceeding relating to or affecting the Transferred Credits:
(a) Notice. Purchaser shall promptly notify CBR in writing (in no event later than ten (10) business days after receipt of such notice) of the nature and substance of such audit, examination, or proceeding, together with copies of all relevant correspondence and communications received from the IRS or other Governmental Authority. The failure by Purchaser to provide timely notice shall not relieve CBR of its indemnification obligations under this Agreement, except to the extent that CBR is actually and materially prejudiced by such failure.
(b) Control of Defense. CBR shall have the right, at its sole cost and expense, to assume and control the defense, prosecution, or settlement of any claim, audit, or proceeding with respect to the Transferred Credits that could give rise to an Indemnified Tax Loss (a "Tax Claim"), by providing written notice to Purchaser within twenty (20) business days after CBR receives notice of such Tax Claim from Purchaser. If CBR assumes control of such Tax Claim, CBR shall select counsel reasonably acceptable to Purchaser, shall keep Purchaser informed of all material developments, and shall not settle or compromise such Tax Claim on terms that would adversely affect Purchaser's tax position without the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned, or delayed). If any proposed settlement would result in any residual tax liability, penalty, or adverse tax consequence to Purchaser that is not fully indemnified by CBR under this Agreement, Purchaser's consent to such settlement may be withheld in Purchaser's sole discretion.
(c) Purchaser Participation. Purchaser shall have the right, at its own expense, to participate in (but not control, except as provided in this Section 4.8) any Tax Claim, and CBR shall cooperate with Purchaser in connection therewith. If CBR does not assume control of a Tax Claim within the twenty (20) business day period described in clause (b) above, Purchaser shall have the right to control such Tax Claim, and CBR shall cooperate with and provide assistance to Purchaser as reasonably requested.
(d) Cooperation. Purchaser shall cooperate with CBR in connection with any Tax Claim controlled by CBR, including executing such documents and providing such information and access as CBR may reasonably request.
Section 4.9 Annual Compliance Certifications. On each anniversary of the Closing Date during the Recapture Period (and, with respect to the final certification, on or before the date that is thirty (30) days following the expiration of the last Recapture Period), CBR shall deliver to Purchaser an annual compliance certificate substantially in the form set forth in Exhibit C hereto (an "Annual Compliance Certificate"), signed by the Chief Financial Officer of CBR (currently, Theo Vasquez, or his duly appointed successor), certifying as to the following matters:
(a) no Recapture Event has occurred with respect to any Project since the date of the prior Annual Compliance Certificate (or, in the case of the first Annual Compliance Certificate, since the Signing Date);
(b) all Projects continue to be used as "energy property" within the meaning of Section 48 of the Code;
(c) all prevailing wage, apprenticeship, and domestic content requirements with respect to each Project continue to be satisfied;
(d) no material litigation, proceeding, or governmental investigation is pending or, to the knowledge of CBR, threatened with respect to CBR, any Project Company, the Partnership, or the Projects that could reasonably be expected to adversely affect the Transferred Credits; and
(e) no IRS audit, examination, or inquiry is pending or, to the knowledge of CBR, threatened with respect to the Transferred Credits or the ITCs generated by the Projects.
Each Annual Compliance Certificate shall be delivered together with such supporting documentation as Purchaser may reasonably request.
Section 4.10 Restrictions on Transfer of Obligations. CBR shall not assign, delegate, or otherwise transfer any of its obligations under this Agreement to any other Person without the prior written consent of Purchaser, which consent may be granted or withheld in Purchaser's sole discretion. Any purported assignment, delegation, or transfer in violation of this Section 4.10 shall be null and void and of no force or effect. Notwithstanding the foregoing, no assignment or transfer of CBR's obligations hereunder shall relieve CBR of its primary liability under this Agreement unless Purchaser expressly agrees in writing to release CBR from such liability.
ARTICLE V
SURVIVAL; TERM
Section 5.1 Survival Period. The representations, warranties, covenants, and indemnification obligations of CBR under this Agreement shall survive the execution and delivery of this Agreement, the Closing Date, and the consummation of the transactions contemplated by the TCPA and the other Transaction Documents, and shall remain in full force and effect until the date that is sixty (60) days following the expiration of the last Recapture Period applicable to any Project (the "Survival Period"). Given that the last Project to achieve COD is Amistad Solar, LLC, with a COD of November 18, 2023, the Recapture Period for Amistad Solar expires on November 18, 2028; accordingly, the Survival Period is expected to extend through approximately January 17, 2029. The Recapture Period and Survival Period for each Project are set forth in detail in Exhibit D hereto.
Notwithstanding the foregoing, any claim for indemnification under this Agreement that is asserted in writing by Purchaser to CBR prior to the expiration of the Survival Period shall survive the expiration of the Survival Period and shall continue in full force and effect until the final resolution and payment of such claim. For the avoidance of doubt, the Survival Period does not limit any obligation of CBR with respect to a claim that has been timely asserted in writing prior to the expiration of the Survival Period.
Section 5.2 Termination. This Agreement shall terminate upon the later of:
(a) the expiration of the Survival Period, provided that no claims under this Agreement are pending or unresolved as of such date; and
(b) the date on which all pending claims under this Agreement have been finally resolved and all indemnity payments required under this Agreement have been made in full.
Upon termination of this Agreement, the obligations of the Parties hereunder shall cease, except that (i) the provisions of Article VI (Limitations on Liability), Article VII (Dispute Resolution), and Article VIII (Miscellaneous) shall survive such termination, and (ii) any rights and obligations that, by their nature, are intended to survive termination shall so survive.
ARTICLE VI
LIMITATIONS ON LIABILITY
Section 6.1 Aggregate Cap. As set forth in Section 2.4, CBR's aggregate cumulative liability under Article II of this Agreement shall not exceed the Cap of Sixty-Nine Million Dollars ($69,000,000), being one hundred twenty-five percent (125%) of the Aggregate Purchase Price of Fifty-Five Million Two Hundred Thousand Dollars ($55,200,000) (i.e., $55,200,000 × 1.25 = $69,000,000). The Cap shall apply to the cumulative total of all indemnity payments made by CBR under this Agreement, inclusive of base indemnity amounts, Gross-Up Amounts, interest, penalties, and reimbursed costs and expenses. The Cap shall not apply to, and shall not limit, any liability of CBR arising from fraud, willful misconduct, or criminal conduct.
Section 6.2 Sole Remedy. Except in the case of fraud, willful misconduct, or criminal conduct, this Agreement and the indemnification provisions set forth in the TCPA shall provide the sole and exclusive remedy of Purchaser and the other Indemnified Parties with respect to any claim arising out of or relating to any ITC recapture, disallowance, reduction, or other unavailability of the Transferred Credits, and no Indemnified Party shall be entitled to pursue any other claim, action, or remedy at law or in equity with respect to such matters. Nothing in this Section 6.2 shall be construed to limit any right of Purchaser under the TCPA or any other Transaction Document with respect to matters that are not related to the indemnification provided under this Agreement.
Section 6.3 Mitigation. Each Party shall use commercially reasonable efforts to mitigate any losses, damages, or costs that may give rise to, or increase the amount of, an Indemnified Tax Loss. Without limiting the generality of the foregoing:
(a) Purchaser shall take all reasonable steps to preserve the benefit of the Transferred Credits, including timely filing all federal income tax returns claiming such credits in accordance with applicable law and IRS guidance, and taking any corrective actions that may be available under IRS guidance to cure or mitigate any Disallowance Event; and
(b) CBR shall take all reasonable steps to prevent or mitigate any Recapture Event or Disallowance Event, including maintaining each Project in compliance with the requirements of Section 48 of the Code and cooperating fully with Purchaser and the IRS as set forth in Article IV.
The failure by either Party to take reasonable mitigation steps shall reduce the indemnification obligations of CBR hereunder to the extent that such failure materially increased the amount of the Indemnified Tax Loss.
Section 6.4 No Consequential Damages. EXCEPT TO THE EXTENT THAT ANY SUCH DAMAGES (A) ARE INCLUDED IN THE GROSS-UP AMOUNT CALCULATED IN ACCORDANCE WITH SECTION 2.3, (B) ARE PAYABLE TO A TAXING AUTHORITY (INCLUDING, WITHOUT LIMITATION, ANY PENALTIES, INTEREST, OR ADDITIONS TO TAX ASSESSED BY THE IRS), OR (C) ARISE FROM FRAUD, WILLFUL MISCONDUCT, OR CRIMINAL CONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY DAMAGES FOR LOST PROFITS, LOSS OF BUSINESS, DIMINUTION IN VALUE, OR LOSS OF GOODWILL, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE VII
DISPUTE RESOLUTION
Section 7.1 Negotiation. In the event of any dispute, controversy, or claim arising out of or relating to this Agreement, including (without limitation) any dispute regarding the interpretation, breach, termination, or validity of this Agreement (a "Dispute"), the Parties shall first attempt in good faith to resolve such Dispute through direct negotiations between senior executives of the Parties having authority to settle such Dispute. Either Party may initiate such negotiations by delivering written notice to the other Party describing the Dispute in reasonable detail. The Parties shall use good-faith efforts to resolve such Dispute through senior executive discussions for a period of not less than thirty (30) days following the date of such notice (the "Negotiation Period"). During the Negotiation Period, the senior executives designated by the Parties (who shall initially be Marcus Calloway, Chairman & CEO of CBR, and Gerald Fontaine, CEO of Purchaser, or their respective designees) shall meet in person or by videoconference at least once and shall exchange such information as may be reasonably necessary to facilitate a resolution of the Dispute.
Section 7.2 Independent Tax Expert. If a Dispute relates primarily to a tax calculation, a technical tax issue, or the determination of whether a particular event constitutes a Recapture Event or Disallowance Event (a "Tax Dispute"), and such Tax Dispute has not been resolved during the Negotiation Period, either Party may, by written notice to the other Party, propose that the Parties jointly engage an independent, nationally recognized tax advisor (the "Independent Tax Expert") to render a determination with respect to such Tax Dispute. The Independent Tax Expert shall initially be Greystone Worthington, LLC (or such firm's successor), and if Greystone Worthington, LLC is unavailable or conflicted, the Parties shall mutually agree upon another nationally recognized independent tax advisory firm of comparable expertise and reputation within fifteen (15) business days following the date of the proposing Party's notice.
The Independent Tax Expert shall be retained pursuant to an engagement letter agreed upon by both Parties and shall render its determination within sixty (60) days after being retained (or such longer period as the Parties may agree). Each Party shall have the opportunity to submit written materials and make oral presentations to the Independent Tax Expert. The determination of the Independent Tax Expert shall be final and binding upon the Parties, absent manifest error. The costs and fees of the Independent Tax Expert shall be borne equally by the Parties unless the Independent Tax Expert determines that one Party's position was frivolous or without reasonable basis, in which case the losing Party shall bear all such costs and fees.
Section 7.3 Litigation. Any Dispute that is not resolved pursuant to Sections 7.1 or 7.2 (including any Dispute that is not a Tax Dispute) shall be submitted exclusively to the courts of the State of New York sitting in New York County, or the United States District Court for the Southern District of New York. Each Party hereby irrevocably and unconditionally (a) submits to the exclusive jurisdiction of such courts for purposes of any action, suit, or proceeding arising out of or relating to this Agreement, (b) consents to the personal jurisdiction of such courts over such Party, (c) waives any objection that i

TAX INDEMNITY AGREEMENT

CALLOWAY-BRIGGS RENEWABLES INC.

PINEHURST INSURANCE GROUP, INC.

TAX INDEMNITY AGREEMENT

RECITALS

ARTICLE I

DEFINITIONS

ARTICLE II

INDEMNIFICATION

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF CBR

ARTICLE IV

COVENANTS

ARTICLE V

ARTICLE VI

LIMITATIONS ON LIABILITY

ARTICLE VII

DISPUTE RESOLUTION

Record

Parties

Dates

Amounts