Asset Purchase Agreement

Asset Purchase Agreement



Exhibit 10.1
Execution Version

by and among
UNION POWER PARTNERS, L.P.
as Seller,
ENTEGRA TC LLC,
solely with respect to Section 6.4(h), Section 6.12, Section 6.13(d), Section 6.15(c), Section 6.23(d) and Section 11.12,
and
ENTERGY GULF STATES LOUISIANA, L.L.C., and
ENTERGY TEXAS, INC.,
as Purchasers
Dated as of December 8, 2014

    






EXHIBITS AND SCHEDULES

Item
Description
Exhibit A-1
Form of PB1 Assignment and Assumption Agreement
Exhibit A-2
Form of PB2 Assignment and Assumption Agreement
Exhibit A-3
Form of PB3 Assignment and Assumption Agreement
Exhibit A-4
Form of PB4 Assignment and Assumption Agreement
Exhibit B-1
Form of PB1 Bill of Sale
Exhibit B-2
Form of PB2 Bill of Sale
Exhibit B-3
Form of PB3 Bill of Sale
Exhibit B-4
Form of PB4 Bill of Sale
Exhibit C-1
Form of PB1 Deed
Exhibit C-2
Form of PB2 Deed
Exhibit C-3
Form of PB3 Deed
Exhibit C-4
Form of PB4 Deed
Exhibit D-1
Form of PB1 Escrow Agreement
Exhibit D-2
Form of PB2 Escrow Agreement
Exhibit D-3
Form of PB3 Escrow Agreement
Exhibit D-4
Form of PB4 Escrow Agreement
Exhibit E
Form of Post-Closing Confidentiality Agreement
Exhibit F
Form of Title Affidavit
Exhibit G
Form of Affidavit of Non-Foreign Status
Exhibit H
Form of Joint Defense Agreement
Exhibit I-1
Form of PB1 MISO Transition Agreement
Exhibit I-2
Form of PB2 MISO Transition Agreement
Exhibit I-3
Form of PB3 MISO Transition Agreement
Exhibit I-4
Form of PB4 MISO Transition Agreement
Exhibit J
Form of Replacement Power Agreement
Schedule AC
Approved Contractors
Schedule AV
Approved Valuation Firms
Schedule MOR
Form of Monthly Operating Report
Schedule MMS-1
PB1 Major Maintenance Spares
Schedule MMS-2
PB2 Major Maintenance Spares
Schedule MMS-3
PB3 Major Maintenance Spares
Schedule MMS-4
PB4 Major Maintenance Spares
Schedule MMS-5
Common Facilities Major Maintenance Spares
Schedule 1.1A
Persons With Seller's Knowledge
Schedule 1.1B
Persons With Purchasers' Knowledge
Schedule 1.1C
Certain Permitted Encumbrances
Schedule 1.1D
Description of Project
Schedule 1.1E
Title Exceptions - Leases and Subleases
Schedule 2.1(a)
PB1 Owned Real Property
Schedule 2.1(b)
PB1 Leased Real Property
Schedule 2.1(c)
PB1 Easements
Schedule 2.1(d)
PB1 Tangible Personal Property
Schedule 2.1(e)
PB1 Inventory
Schedule 2.1(f)
PB1 Contracts
Schedule 2.1(g)
PB1 Permits
Schedule 2.1(i)
PB1 Warranties





Schedule 2.1(k)
PB1 Prepaid Items
Schedule 2.2(b)
Specified PB1 Excluded Assets
Schedule 2.2(c)
Specified PB1 Excluded Contracts
Schedule 2.2(h)
Specified PB1 Excluded Intellectual Property Rights
Schedule 2.2(l)
Surviving PB1 Affiliate Contracts
Schedule 2.5(a)
PB2 Owned Real Property
Schedule 2.5(b)
PB2 Leased Real Property
Schedule 2.5(c)
PB2 Easements
Schedule 2.5(d)
PB2 Tangible Personal Property
Schedule 2.5(e)
PB2 Inventory
Schedule 2.5(f)
PB2 Contracts
Schedule 2.5(g)
PB2 Permits
Schedule 2.5(i)
PB2 Warranties
Schedule 2.5(k)
PB2 Prepaid Items
Schedule 2.6(b)
Specified PB2 Excluded Assets
Schedule 2.6(c)
Specified PB2 Excluded Contracts
Schedule 2.6(h)
Specified PB2 Excluded Intellectual Property Rights
Schedule 2.6(l)
Surviving PB2 Affiliate Contracts
Schedule 2.9(a)
PB3 Owned Real Property
Schedule 2.9(b)
PB3 Leased Real Property
Schedule 2.9(c)
PB3 Easements
Schedule 2.9(d)
PB3 Tangible Personal Property
Schedule 2.9(e)
PB3 Inventory
Schedule 2.9(f)
PB3 Contracts
Schedule 2.9(g)
PB3 Permits
Schedule 2.9(i)
PB3 Warranties
Schedule 2.9(k)
PB3 Prepaid Items
Schedule 2.10(b)
Specified PB3 Excluded Assets
Schedule 2.10(c)
Specified PB3 Excluded Contracts
Schedule 2.10(h)
Specified PB3 Excluded Intellectual Property Rights
Schedule 2.10(l)
Surviving PB3 Affiliate Contracts
Schedule 2.13(a)
PB4 Owned Real Property
Schedule 2.13(b)
PB4 Leased Real Property
Schedule 2.13(c)
PB4 Easements
Schedule 2.13(d)
PB4 Tangible Personal Property
Schedule 2.13(e)
PB4 Inventory
Schedule 2.13(f)
PB4 Contracts
Schedule 2.13(g)
PB4 Permits
Schedule 2.13(i)
PB4 Warranties
Schedule 2.13(k)
PB4 Prepaid Items
Schedule 2.14(b)
Specified PB4 Excluded Assets
Schedule 2.14(c)
Specified PB4 Excluded Contracts
Schedule 2.14(h)
Specified PB4 Excluded Intellectual Property Rights
Schedule 2.14(l)
Surviving PB4 Affiliate Contracts
Schedule 2.17(a)
Common Facilities Owned Real Property
Schedule 2.17(b)
Common Facilities Leased Real Property
Schedule 2.17(c)
Common Facilities Easements
Schedule 2.17(d)
Common Facilities Tangible Personal Property
Schedule 2.17(e)
Common Facilities Inventory
Schedule 2.17(f)
Common Facilities Contracts





Schedule 2.17(g)
Common Facilities Permits
Schedule 2.17(i)
Common Facilities Warranties
Schedule 2.17(k)
Common Facilities Prepaid Items
Schedule 2.18(b)
Common Facilities Excluded Assets
Schedule 2.18(c)
Common Facilities Excluded Contracts
Schedule 2.18(h)
Common Facilities Excluded Intellectual Property Rights
Schedule 4.3
Seller's Consents, Seller's Regulatory Approvals and No Violation
Schedule 4.4
Compliance with Laws
Schedule 4.6(a)
Seller's Litigation
Schedule 4.6(b)
Seller's Orders
Schedule 4.7(k)
Title Exceptions
Schedule 4.7(n)
Owned Real Property; Easements - Consents
Schedule 4.7(o)
Owned Real Property; Easements - Actions
Schedule 4.8(a)
PB1 Leased Personal Property
Schedule 4.8(b)
PB2 Leased Personal Property
Schedule 4.8(c)
PB3 Leased Personal Property
Schedule 4.8(d)
PB4 Leased Personal Property
Schedule 4.8(e)
Common Facilities Leased Personal Property
Schedule 4.10
Purchased Contract Matters
Schedule 4.11
Permit Matters
Schedule 4.13
Intellectual Property
Schedule 4.14(a)
Condition of Purchased Assets; Defects
Schedule 4.14(b)
Sufficiency of Purchased Assets
Schedule 4.14(c)
Assets owned by Affiliates
Schedule 4.15(a)
Environmental Conditions
Schedule 4.16
Tax Matters
Schedule 4.17(a)
Employee Benefit Matters
Schedule 4.17(d)
Employee Benefit Actions
Schedule 4.18(a)
Employees
Schedule 4.18(b)
Project Employee Compliance
Schedule 4.19
Insurance Policies
Schedule 4.21
Pipeline Status
Schedule 5.3
Purchasers' Consents, Purchasers' Regulatory Approvals and No Violation
Schedule 5.4
Purchasers' Litigation
Schedule 5.5
Purchasers' Brokers
Schedule 6.2(a)
Transaction Expenses; Title Policy Endorsements
Schedule 6.7
Power Block Performance Test Protocols and Procedures
Schedule 6.23
Permanent Capacity Release Process
Schedule 11.2
Schedules - Potential Purchased Contracts










THIS ASSET PURCHASE AGREEMENT, dated as of December 8, 2014, is made and entered into by and among Union Power Partners, L.P., a limited partnership organized and existing under the laws of the State of Delaware ("Seller"), and, solely with respect to Section 6.4(h), Section 6.12, Section 6.13(d), Section 6.15(c), Section 6.23(d) and Section 11.12, Entegra TC LLC, a limited liability company organized and existing under the laws of the State of Delaware ("Entegra TC"), on the one hand, and Entergy Arkansas, Inc., a corporation organized and existing under the laws of the State of Arkansas ("EAI"), Entergy Gulf States Louisiana, L.L.C., a limited liability company organized and existing under the laws of the State of Louisiana ("EGSL"), and Entergy Texas, Inc., a corporation organized and existing under the laws of the State of Texas ("ETI" and each of EAI, EGSL and ETI, a "Purchaser" and, collectively, "Purchasers"), on the other hand.
RECITALS
On June 12, 2014, Seller made an unsolicited offer to Entergy Corporation to sell the Project (as defined herein) and certain related properties and assets and, after a period of negotiation, Seller and ESI, as agent for Purchasers, entered into a letter of intent, dated October 14, 2014 (the "Letter of Intent"), for the sale of all of Seller's right, title and interest in and to the Project and certain related properties and assets and, in connection therewith, the assumption by Purchasers of certain related liabilities of Seller.
Entegra TC joins in this Agreement for the limited purposes expressly set forth in Section 6.4(h), Section 6.12, Section 6.13(d), Section 6.15(c), Section 6.23(d) and Section 11.12 hereunder to induce Purchasers to enter into this Agreement on the terms and conditions set forth herein and acknowledges that it will derive a material and substantial benefit from the Transactions.
Consistent with the Letter of Intent, Seller desires to sell, transfer and assign to Purchasers, and Purchasers desire to purchase from Seller, all of Seller's right, title and interest in and to the Project and certain related properties and assets, and in connection therewith, Purchasers have agreed to assume certain related liabilities of Seller, on the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, do hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1.Certain Defined Terms
. The following terms, when used in this Agreement with initial letters capitalized, have the meanings set forth below:
"Acquisition Proposal" has the meaning set forth in Section 6.12(a).
"Action" means any action, arbitration, assessment, (in relation to Section 4.18(b)(ii) only) charge, cause of action, claim, grievance, hearing, suit, proceeding (including any proceeding related to a Permit), citation, summons or subpoena of any nature, civil, criminal, regulatory or otherwise, in law or in equity, in each case by or before any Governmental Authority or arbitrator.
"Affiliate" has the meaning set forth in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
"Agreement" means this Asset Purchase Agreement, together with the Schedules and Exhibits hereto.





"Allocation" has the meaning set forth in Section 3.9.
"Ancillary Agreements" means (i) the Bills of Sale, (ii) the Deeds, (iii) the Assignment and Assumption Agreements, (iv) the Escrow Agreements and (v) the MISO Transition Agreements.
"Approved Contractor" means (i) a qualified independent professional contractor, experienced in estimating casualty, environmental or other damage, as the case may be, and the scope and cost of repairs required by the Casualty Event, or other occurrence, as the case may be, selected by Seller and approved by Purchasers (with such approval not to be unreasonably withheld, conditioned or delayed) to perform work hereunder pursuant to the terms of this Agreement and (ii) each contractor listed on Schedule AC but solely with respect to the types of work specified following such contractor's name on such Schedule.
Approved Valuation Firm” means (i) a qualified independent professional appraisal firm, independent engineering firm, investment banking or similar firm that is experienced in projecting the net revenues to be generated by electric generating facilities similar to the Project selected by Seller and approved by Purchasers (with such approval not to be unreasonably withheld, conditioned or delayed) to perform work hereunder pursuant to the terms of this Agreement and (ii) each firm listed on Schedule AV.
"APSC" means the Arkansas Public Service Commission.
"Assignment and Assumption Agreements" means, collectively, the PB1 Assignment and Assumption Agreement, the PB2 Assignment and Assumption Agreement, the PB3 Assignment and Assumption Agreement and the PB4 Assignment and Assumption Agreement.
"Assumed Liabilities" means, collectively, the Power Block Assumed Liabilities and the Common Facilities Assumed Liabilities.
"Bankrupt" means, with respect to any entity, such entity (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, (ii) has a petition filed or commenced against it for a proceeding or cause of action under any bankruptcy, insolvency, reorganization, or similar law and such petition is not dismissed within thirty (30) days of its filing, (iii) makes an assignment or any general arrangement for the benefit of creditors, (iv) otherwise becomes bankrupt or insolvent (however evidenced), (v) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (vi) admits in writing that it is generally unable to pay its debts as they fall due.
"Base Purchase Price" means Two Hundred Thirty-Seven Million Dollars ($237,000,000).
"Bills of Sale" means, collectively, the PB1 Bill of Sale, the PB2 Bill of Sale, the PB3 Bill of Sale and the PB4 Bill of Sale.
"Business" means the business of owning, operating and maintaining the Project and generating, selling and delivering electric energy and capacity and other electric products and services from the Project.
"Business Day" means any day on which Federal Reserve member banks in New York, New York and Houston, Texas are open for business.
"Capacity Release Rules" has the meaning set forth in Section 6.4(e).
"Capacity Test Tolerance" means, with respect to each Power Block, 4.95 MW.
"Casualty Event" means a PB1 Casualty Event, a PB2 Casualty Event, a PB3 Casualty Event, a PB4 Casualty Event or a Common Facilities Casualty Event, as the context requires.
"Central Prevailing Time" or "CPT" means standard time or daylight savings time, as applicable to the central time zone.
"CERCLA" means the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq.
"Closing" has the meaning set forth in Section 3.1.
"Closing Date" has the meaning set forth in Section 3.1.





"Closing Inventory Report" means an Inventory Report with respect to each Power Block and the Common Facilities dated not earlier than three (3) days prior to the Closing Date.
"COBRA" means the Consolidated Omnibus Budget Reconciliation Act of 1985.
"Code" means the Internal Revenue Code of 1986.
"Collective Bargaining Agreement" means any Contract between (i) any member of the Entegra Group, on the one hand, and (ii) a trade union, labor organization, collective bargaining representative or employee representative, on the other hand, concerning terms and conditions of employment of any Project Employee, as well as all modifications of, or amendments to, such agreements.
"Commercially Reasonable Efforts" means efforts that (i) are reasonably within, or should have been reasonably within, the contemplation of the Parties on the Effective Date and are otherwise consistent with past practices of purchasers and sellers of similar assets in transactions of a similar kind and nature and (ii) do not require the performing Party to expend funds or incur obligations other than expenditures and obligations that are customary and reasonable in transactions of a similar kind and nature.
"Committed NRIS Upgrade Costs" has the meaning set forth in Section 6.22(d).
"Common Facilities Assets" has the meaning set forth in Section 2.17.
"Common Facilities Assumed Liabilities" has the meaning set forth in Section 2.19.
"Common Facilities Casualty Event" has the meaning set forth in Section 6.28(b).
"Common Facilities Casualty Event Notice" has the meaning set forth in Section 6.28(b).
"Common Facilities Contracts" has the meaning set forth in Section 2.17(f).
"Common Facilities Damaged Portion" has the meaning set forth in Section 6.28(b).
"Common Facilities Easements" has the meaning set forth in Section 2.17(c).
"Common Facilities Emission Allowances" has the meaning set forth in Section 2.17(m).
"Common Facilities Excluded Assets" has the meaning set forth in Section 2.18.
"Common Facilities Excluded Contracts" has the meaning set forth in Section 2.18(c).
"Common Facilities Excluded Employee Liabilities" has the meaning set forth in Section 2.20(g).
"Common Facilities Excluded Liabilities" has the meaning set forth in Section 2.20.
"Common Facilities IDA Bond Other Property" has the meaning set forth in Section 2.17(d).
"Common Facilities IDA Bond Real Property" has the meaning set forth in Section 2.17(a).
"Common Facilities Intellectual Property Rights" has the meaning set forth in Section 2.17(n).
"Common Facilities Inventory" has the meaning set forth in Section 2.17(e).
"Common Facilities Leased Personal Property" has the meaning set forth in Section 4.8(e).
"Common Facilities Leased Real Property" has the meaning set forth in Section 2.17(b).
"Common Facilities Major Maintenance Spares" means the Major Maintenance Spares listed on Schedule MMS-5, which shall include the book value and condition of each such Major Maintenance Spare, and any replacements or substitutions thereof procured by Seller primarily for more than one Power Block in the ordinary course of the conduct of the Business.
"Common Facilities Owned Real Property" has the meaning set forth in Section 2.17(a).
"Common Facilities Permits" has the meaning set forth in Section 2.17(g).
"Common Facilities Prepaid Items" has the meaning set forth in Section 2.17(k).
"Common Facilities Purchased Major Maintenance Spares" means Common Facilities Major Maintenance Spares that (i) the Project Purchasers elect to purchase at Closing by exercising their purchase option in accordance with Section 2.21(c) or Section 2.21(e), as applicable, or (ii) the Project Purchasers agree to purchase, and Seller agrees to sell, in accordance with Section 2.21(f).
"Common Facilities Real Property" means, collectively, the Common Facilities Owned Real Property, the Common Facilities IDA Bond Real Property, the Common Facilities Leased Real Property and the Common Facilities Easements.





"Common Facilities Tangible Personal Property" has the meaning set forth in Section 2.17(d).
"Common Facilities Total Cost" has the meaning set forth in Section 6.28(c).
"Common Facilities Warranties" has the meaning set forth in Section 2.17(i).
"Confidentiality Agreement" means that certain Confidentiality Agreement, dated as of June 26, 2014, among Seller, Entegra Power Group LLC (predecessor-in-interest to Entegra TC), then an Affiliate of Seller organized and existing under the Laws of the State of Delaware, and ESI, an Affiliate of Purchasers that is organized and existing under the Laws of the State of Delaware.
"Consents" means consents, authorizations, approvals, releases, waivers, estoppel certificates, and any similar agreements or approvals.
"Consumables" means any and all of the following items of Inventory intended to be used or consumed at the Project in the ordinary course of the conduct of the Business: lubricants, chemicals, fluids, oils, filters, fittings, connectors, seals, gaskets, hardware, wire and other similar materials; maintenance, shop and office supplies; fuel supplies (including diesel fuel), if any, on hand and stored at, or in transit to, the Project Real Property as of the Closing.
"Contract" means any binding contract, agreement, purchase order, transaction under a master agreement, license, sublicense, lease, sublease, sale and purchase order, easement, mortgage, security agreement, instrument, guaranty, commitment, or other contract, including the IDA Lease Agreement and any other lease or sublease related to the Leased Real Property, but excluding any Permit, Order or Law.
"Contract Capacity" means, with respect to each Power Block, 495 MW (net).
"Contract CO Emission Rate" means, with respect to each combustion turbine and heat recovery steam generator stack at each Power Block, a Power Block CO Emission Rate for such combustion turbine and heat recovery steam generator stack within the limits specified in the State of Arkansas Department of Environmental Quality Air Pollution Control Title V Permit No. 1861-AOP-R6 to Operate Air Emissions Equipment held by Seller, issued on April 2, 2013.
"Contract Heat Rate" means, with respect to each Power Block, a Power Block Heat Rate of 7,200 Btu/kWh at full load without duct burners in operation.
"Contract NOx Emission Rate" means, with respect to each combustion turbine and heat recovery steam generator stack at each Power Block, a Power Block NOx Emission Rate for such combustion turbine and heat recovery steam generator stack within the limits specified in the State of Arkansas Department of Environmental Quality Air Pollution Control Title V Permit No. 1861-AOP-R6 to Operate Air Emissions Equipment held by Seller, issued on April 2, 2013.
"Contract Vibration Level (Full Load)" means, for steam turbines and related generators, a Power Block Vibration Level (Full Load) not to exceed 6 mils and, for combustion turbines and related generators, a Power Block Vibration Level (Full Load) not to exceed 0.5 inches per second.
"Contract Vibration Level (Start-Up and Coast-Down)" means, for with respect to all "rotor criticals" of steam turbines and related generators, a Power Block Vibration Level (Start-Up and Coast-Down) not to exceed 10 mils and, for “rotor criticals” of combustion turbines and related generators, a Power Block Vibration Level (Start-Up and Coast-Down) not to exceed 1.0 inches per second.
"Controlled Group Liability" means any and all liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Section 412 and 4971 of the Code, and (iv) as a result of a failure to comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, in each case with respect to or arising under or out of any “employee benefit plan,” as defined in Section 3(3) of ERISA, maintained by any member of the Entegra Group and/or any owner of Entegra TC.
"Damaged Portion" means a PB1 Damaged Portion, PB2 Damaged Portion, PB3 Damaged Portion, PB4 Damaged Portion or the Common Facilities Damaged Portion, as applicable.
"Deductible" has the meaning set forth in Section 9.1(b).
"Deeds" means, collectively, the PB1 Deed, the PB2 Deed, the PB3 Deed and the PB4 Deed.





"Defending Party" has the meaning set forth in Section 9.12(d).
"EAI" has the meaning set forth in the introductory paragraph of this Agreement.
"EAI Temporary Capacity Release" means that certain Agreement for Capacity Release Transactions, dated July 18, 2013, by and between Trans-Union and EAI and the accompanying Confirmation Letter, dated July 26, 2013, by and between Trans-Union and EAI.
"EAI Tolling Agreement" means that certain Capacity Sale and Fuel Conversion Services Agreement, dated effective as of October 22, 2012, between EAI and Seller.
"Easements" means, collectively, the Power Block Easements and the Common Facilities Easements.
"Effective Date" means the date on which this Agreement has been executed and delivered by Seller, Purchasers and Entegra TC, as specified in the introductory paragraph of this Agreement.
"EGSL" has the meaning set forth in the introductory paragraph of this Agreement.
"Electric Interconnection Agreement" means the Interconnection and Operating Agreement by and between Seller and Entergy Arkansas Inc. dated as of June 24, 2004.
"Electric Interconnection Facilities" means all structures, facilities, equipment, substations, auxiliary equipment, devices and apparatus that are owned, operated or controlled by Seller, which are required or installed to interconnect and deliver electric energy from the Project to the "Point of Interconnection" as defined in the Electric Interconnection Agreement, including electric transmission and/or distribution lines, transformation, switching, electric metering equipment, any other metering equipment, communications equipment, and safety equipment, including equipment required to protect (i) the electrical system to which the Project is connected and its customers from faults occurring at the Project and (ii) the Project from faults occurring on the electrical system to which the Project is connected or on other electrical systems to which such electrical system is directly or indirectly connected.
"Emission Allowances" means all authorizations to emit specified units of Hazardous Substances or any other regulated pollutant from the Project or the Project Real Property, which units are established and required by a Governmental Authority with jurisdiction over the Project or the Project Real Property under Environmental Law, including under (i) an air pollution control and emission reduction program, (ii) a program designed to mitigate impairment of water resources, including coastal and inland waters, navigable waters, surface waters, watersheds, well water or groundwater, or (iii) any other pollution reduction program, in each case regardless of whether the Governmental Authority establishing such authorizations designates such authorizations by a name other than "allowances" (e.g., as offsets or credits).
"Employee" means, with respect to a Person, any individual who is a full-time, part-time, or other employee of such Person under applicable federal or state employment and Tax Laws.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA § 3(2).
"Employee Plan" means and includes each Employee Pension Benefit Plan, each Employee Welfare Benefit Plan, and each other plan, Contract, program, arrangement, fund or policy, whether written or oral, qualified or non-qualified, funded or unfunded, foreign or domestic, including any of the foregoing providing for (i) severance pay or benefits, stay pay, salary continuation, change in control payments or benefits, bonuses, profit-sharing, equity or equity-based compensation or awards, employee stock ownership or other forms of incentive compensation; (ii) vacation or vacation pay, holiday or holiday pay, sickness or other time-off or sick pay; (iii) health, welfare, medical, dental, disability, life, accidental death and dismemberment, employee assistance, educational assistance, relocation or fringe benefits or perquisites, including post-employment benefits; and (iv) deferred compensation, defined benefit or defined contribution, thrift savings, retirement, early retirement or pension benefits, or supplemental benefits that cover any present, former or future Employee of any member of the Entegra Group or any of such members' respective ERISA Affiliates, or that is maintained, administered, sponsored, made available or with respect to which contributions are made or required to be made by any member of the Entegra Group or any of such members' respective ERISA Affiliates in respect of any of their respective present, former or future Employees or their





beneficiaries or with respect to which any member of the Entegra Group or any of such members' respective ERISA Affiliates has any ongoing obligation or liability whatsoever.
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA § 3(1).
"Encumbrances" means any and all mortgages, pledges, claims, security interests, options, warrants, purchase rights (including rights of first refusal), liens (statutory or otherwise), installment sales agreements, easements, activity and use restrictions, rights-of-way, deed restrictions, reservations, defects or imperfections of title, encumbrances and charges of any kind.
"Entegra Group" means Entegra TC and its subsidiaries and Affiliates, including Seller and Union Power Employee Company and their respective subsidiaries and Affiliates but excluding any owner of Entegra TC.
"Entegra TC" has the meaning set forth in the introductory paragraph of this Agreement.
"Environment" means the environment, including any of the following media and any living organism or systems supported by any such media: (i) land, including surface land, sub-surface strata, sea bed and riverbed under water (as described in clause (ii) hereof); (ii) water, including coastal and inland waters, navigable waters, surface waters, ground waters, drinking water supplies and waters in surface and sub-surface strata; and (iii) air, including indoor and outdoor air and air within buildings and other man-made or natural structures above or below ground.
"Environmental Assessment" means a "Phase I" environmental site assessment with respect to the Project and the Project Real Property, dated not more than one hundred eighty (180) days prior to the Closing Date, that may be prepared at any Project Purchasers' discretion by the Environmental Consultant on behalf of Project Purchasers in such time and manner as to satisfy CERCLA § 101(35)(B), 42 U.S.C. § 9601(35)(B) and the regulations thereunder defining "all appropriate inquiry," 40 C.F.R. Part 312, and ASTM E1527-13; provided, however, for the avoidance of doubt, the environmental site assessment shall not include any "Phase II" or other intrusive or invasive environmental investigations or sampling, testing or the collection of any environmental media.
"Environmental Claim" means any written notice, claim, suit (whether in law or in equity), demand or other written communication by any Person alleging or asserting a Party's or any other Person's actual or potential liability for investigation, response, investigation costs, cleanup or Remediation costs, compliance costs, enforcement costs, response costs, fees, defense costs, capital expenditures (other than such costs or capital expenditures incurred in the ordinary course of the conduct of the Business) or the funding necessary therefor, damages, claims for contribution or indemnity, damages to natural resources or other property, personal injuries (including those arising from or related to toxic torts), fines or penalties, based on or resulting from, in whole or in part, (i) the presence or Release of any Hazardous Substance at any location, whether or not on property owned by such Person, (ii) any violation or alleged violation of any Environmental Law, (iii) claims for Remediation or costs associated with Remediation or (iv) claims for nuisance due to environmental matters.
"Environmental Condition" means the presence or Release of a Hazardous Substance in the Environment with respect to the Project or the Project Real Property (wherever migrating) that is (a) in violation of an Environmental Permit in effect and enforceable on or prior to the Closing Date or (b) that is not allowed, approved or permitted by an Environmental Permit, and in each case for which there is an obligation under Environmental Law to engage in any monitoring, investigation, assessment, treatment, cleanup, containment, removal, mitigation, reporting, response or restorative work, or with respect to which a Governmental Authority with jurisdiction over such matter has required in writing the foregoing activities under Environmental Laws.
"Environmental Consultant" means Environmental Resource Management, or such other recognized environmental consulting firm as shall be selected by Purchasers and reasonably acceptable to Seller.
"Environmental Laws" means all Laws relating to pollution or protection of the Environment, including Laws relating to Releases of Hazardous Substances or the manufacture, processing, distribution,





use, treatment, storage, transport, disposal or handling of Hazardous Substances, including CERCLA, the Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq., the Toxic Substances Control Act, 15 U.S.C. §§ 2601 through 2629, the Oil Pollution Act, 33 U.S.C. § 2701 et seq., the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11001 et seq., the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq.), the Solid Waste Disposal Act (42 U.S.C. § 6901 et seq.), the Occupational Safety and Health Act (20 U.S.C. § 651 et seq.) (to the extent related to exposure to Hazardous Substances or other matters pertaining to the Environment), the Safe Drinking Water Act, 42 U.S.C. §§ 300f through 300j, Arkansas Water and Air Pollution Control Act, Ark. Code Ann. § 8-4-101 et seq., and the Arkansas Solid Waste Management Act, Ark. Code Ann. § 8-6-201 et seq. and any and all similar Laws of the United States of America, the State of Arkansas or any other Governmental Authority having jurisdiction over the Project, the Project Real Property, Seller or the Business.
"Environmental Liability" means any Loss that (i) arises out of or results from any Environmental Condition existing on or prior to the Closing or any related Environmental Claim or (ii) is attributable to any event, action or omission occurring or condition in violation of any Environmental Law.
"Environmental Permit" means any Permit required, issued, or administratively continued under any Environmental Law, including any Order, consent decree, judgment or binding agreement issued or entered into by a Governmental Authority under any applicable Environmental Law relating to the Project or the Project Real Property.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not incorporated) that is or ever has been under common control, or which is or ever has been treated as, or deemed to be, a single employer, with any member of the Entegra Group under Section 4001(b)(1) of ERISA or Section 414 of the Code.
"Escrow Agent" means Wells Fargo Bank, National Association, or such other escrow agent that is mutually designated by Seller and Purchasers between the Effective Date and the Closing.
"Escrow Agreement" means each of the PB1 Escrow Agreement, the PB2 Escrow Agreement, the PB3 Escrow Agreement and the PB4 Escrow Agreement; collectively, the "Escrow Agreements."
"ESI" means Entergy Services, Inc.
"Estimated Closing Adjustment" means each of the PB1 Estimated Closing Adjustment, the PB2 Estimated Closing Adjustment, the PB3 Estimated Closing Adjustment and the PB4 Estimated Closing Adjustment; collectively, the "Estimated Closing Adjustments."
"Estimated Closing Statement" means each of the PB1 Estimated Closing Statement, the PB2 Estimated Closing Statement, the PB3 Estimated Closing Statement and the PB4 Estimated Closing Statement; collectively, the "Estimated Closing Statements."
"ETI" has the meaning set forth in the introductory paragraph of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934.
"Excluded Assets" means, collectively, the Power Block Excluded Assets and the Common Facilities Excluded Assets.
"Excluded Employee Liabilities" means, collectively, the PB1 Excluded Employee Liabilities, the PB2 Excluded Employee Liabilities, the PB3 Excluded Employee Liabilities, the PB4 Excluded Employee Liabilities and the Common Facilities Excluded Employee Liabilities.
"Excluded Liabilities" means, collectively, the Power Block Excluded Liabilities and the Common Facilities Excluded Liabilities.
"Existing Title Commitment" means, that certain Commitment for Title Insurance dated October 31, 2014 at 8:00 a.m.(and last revised on December 5, 2014) issued by First American Title Insurance Company.





"Existing Survey" means that certain ALTA/ACSM Land Title Survey prepared by William R. Mosely (APLS No. 705) of General Land Services Surveying and Mapping, dated August 9, 2004 with a certification revision date of November 1, 2004.
"Expiration Date" means December 31, 2016; provided, that if prior to the Closing (i) a Casualty Event occurs where Seller has elected after July 31, 2016 to repair or restore the Purchased Assets damaged or destroyed thereby, the "Expiration Date" for purposes of Section 10.1(b) shall be extended such that there are one hundred fifty (150) days between (1) the date on which Seller elects to restore the damaged or destroyed assets in accordance with Section 6.24, Section 6.25, Section 6.26, Section 6.27 or Section 6.28, as applicable, and (2) the "Expiration Date" or (ii) (A) a Testing Defect occurs, (B) Seller has given a Late Testing Notice pursuant to Section 6.7(g) and (C) despite Seller's compliance with Section 6.7, the Testing Repair is not completed on or before August 31, 2016, the "Expiration Date" for purposes of Section 6.7(g) and Section 10.1(b) shall be extended such that there are one hundred twenty (120) days between (1) the date on which such Testing Repair is completed and (2) the "Expiration Date"; provided, further, that in no event shall the Expiration Date be extended pursuant to clause (i) or (ii) above beyond May 31, 2017.
"Expiring Covenants" means the covenants in Section 6.1 (Efforts to Close), Section 6.4 (Regulatory Approvals), Section 6.6 (Current Evidence of Title), Section 6.7 (Power Block Performance Tests), clause (b) of Section 6.9 (Insurance), Section 6.12 (No Solicitation), Section 6.13 (Notice of Certain Events; Reporting Obligations) (other than clauses (a)(i), (a)(iv) and (c)), clauses (a) and (b) of Section 6.14 (Information and Records) and Section 6.21 (IDA Bond Property).
"Federal Power Act" means the Federal Power Act, 16 U.S.C. § 791 et seq.
"FERC" means the Federal Energy Regulatory Commission.
FERC 203 Authorization” means an authorization of the transaction by FERC under Section 203 of the Federal Power Act.
"Final Power Block Performance Reduction Amount" has the meaning set forth in Section 6.7(k).
"Final Power Block Performance Test Results" has the meaning set forth in Section 6.7(j).
"FLSA" has the meaning set forth in Section 4.18(a).
"Fuel" means natural gas of quality meeting the technical specifications for shipment on the Trans-Union Pipeline.
"GAAP" means generally accepted accounting principles as in effect from time to time in the United States, applied on a consistent basis.
"Gas Interconnection Facilities" means all structures, pipelines, facilities, equipment, auxiliary equipment, devices and apparatus that are owned, operated or controlled by Seller and are required or installed to interconnect and deliver natural gas from the applicable delivery points for natural gas from Trans-Union's natural gas pipeline to the Power Blocks.
"Gas Transportation Agreement (FERC)" means that certain Transportation Agreement for Firm Transportation of Natural Gas, effective as of February 9, 2001 and dated July 3, 2013, by and between Trans-Union and Seller.
"Good Industry Practices" means those practices, methods and acts generally employed in the independent power generation industry at the particular time in question that, in the exercise of reasonable judgment in light of the facts known at the time the decision in question was being made, would reasonably have been expected to accomplish the desired result of such decision consistent with good independent power generation practices and the requirements of applicable Laws. Good Industry Practices are not limited to the optimum practices, methods or acts to the exclusion of all others, but rather include a spectrum of possible practices, methods or acts commonly employed in the independent power generation industry during the relevant period in light of the circumstances.
"Governmental Authority" means any federal, state, local, foreign or other governmental subdivision, quasi-governmental, regulatory or administrative agency, commission, body, court, tribunal, or





other authority (including FERC, NERC and SERC, any balancing authority (including MISO) and any other transmission provider) exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory, Tax or other binding authority or power over the matters specified or, if such matters are not specified, over Seller, the applicable Purchaser or their respective Affiliates, each to the extent related to the Project, the Project Real Property, the Transactions or any related matter, and each as applicable.
"Hazardous Substance" means and includes any hazardous or toxic substance or waste, any contaminant or pollutant or any chemical, element, compound, mixture or substance, whether solid, liquid or gaseous, regulated as toxic or hazardous under applicable Environmental Laws, including (i) petrochemical or petroleum products, oil, coal ash, radioactive materials, radon gas, asbestos or asbestos-containing material, polychlorinated biphenyls or transformers or other equipment that contains polychlorinated biphenyls, lead-based paint or urea formaldehyde foam insulation, and (ii) any and all chemicals, materials, substances or wastes defined or regulated as "hazardous substances," "hazardous materials," "hazardous constituents," "restricted hazardous materials," "extremely hazardous substances," "hazardous wastes," "extremely hazardous wastes" "restricted hazardous wastes," "toxic substances," "toxic pollutants," "toxic air pollutants," "pollutants," "contaminants" or words of similar meaning and regulatory effect, including as the foregoing may be defined under any Environmental Law.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. §§ 15c-15h, 18a.
"IDA Bond" means that certain $671,930,000 Industrial Development Revenue Bond (Union Power Partners, L.P. Project) No R-2, dated June 8, 2005, held by UPP Finance Co. LLC as the registered owner.
"IDA Bond Contracts" mean, collectively, the IDA Bond, the IDA Bond Indenture, the IDA Lease Agreement, and the IDA Bond Guaranty.
"IDA Bond Guaranty" means that certain Guaranty Agreement, dated as of May 1, 2001, by and between Seller and the IDA Bond Trustee in connection with the IDA Bond.
"IDA Bond Indenture" means that certain Trust Indenture, dated as of May 1, 2001, between Union County, Arkansas to IDA Bond Trustee, related to the IDA Bond, as amended by that First Amendment to Trust Indenture dated June 1, 2005.
"IDA Bond Other Property" means the PB1 IDA Bond Other Property, the PB2 IDA Bond Other Property, the PB3 IDA Bond Other Property, the PB4 IDA Bond Other Property, and the Common Facilities IDA Bond Other Property.
"IDA Bond Property" means, collectively, the IDA Bond Other Property and the IDA Bond Real Property.
"IDA Bond Real Property" means the PB1 IDA Bond Real Property, the PB2 IDA Bond Real Property, the PB3 IDA Bond Real Property, the PB4 IDA Bond Real Property and the Common Facilities IDA Bond Real Property.
"IDA Bond Trustee" means Regions Bank, as trustee under the IDA Bond Indenture.
"IDA Lease Agreement" means that certain Lease Agreement, dated as of May 1, 2001, between Union County, Arkansas and Seller, as amended by that First Amendment to Lease Agreement, dated June 1, 2005, and that Second Amendment to Lease Agreement, dated February 1, 2007.
"Imaged Document" has the meaning set forth in Section 11.3.
"Indemnitee" has the meaning set forth in Section 9.12(a).
"Indemnitor" has the meaning set forth in Section 9.12(a).
"Indemnity Notice" written notification pursuant to Section 9.12(g) of a claim for payment or indemnity under Article IX by an Indemnitee that does not involve a Third Party Claim, specifying the nature of and basis for such claim.
"Independent Accounting Firm" means PricewaterhouseCoopers LLP or such other nationally recognized, independent accounting services firm as is mutually appointed by agreement of Seller and Purchasers for purposes of this Agreement.





"Initial Post-Closing Adjustment" means each of the PB1 Initial Post-Closing Adjustment, the PB2 Initial Post-Closing Adjustment, the PB3 Initial Post-Closing Adjustment and the PB4 Initial Post-Closing Adjustment; collectively, the "Initial Post-Closing Adjustments."
"Initial Power Block Performance Test" has the meaning set forth in Section 6.7(d).
"Insurable Real Property" means, collectively, the PB1 Insurable Real Property, the PB2 Insurable Real Property, the PB3 Insurable Real Property and the PB4 Insurable Real Property.
"Intellectual Property" means intellectual property of any kind or character, including (i) inventions, improvements thereto, and patents, patent applications, and patent disclosures, (ii) trademarks, service marks, trade dress, logos, brand names, trade names, domain names and corporate names, including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (iii) copyrightable works, copyrights, and related applications, registrations, and renewals, and (iv) trade secrets, know-how, and tangible or intangible proprietary business information, software, computer programs, source and object codes, databases, and data.
"Intellectual Property Rights" means (i) all proprietary or other legally enforceable rights with respect to Intellectual Property relating to the Purchased Assets, or for purposes of Section 4.13(c), with respect to Intellectual Property, including license and similar rights provided under any Contract relating to the Purchased Assets, or any other Law under any jurisdiction that provides protective or other rights with respect to Intellectual Property, including patent, copyright, trademark, service mark, design patent, industrial design, and semi-conductor chip, mask work, trade secret, database, and internet Law, and (ii) all rights to sue and recover damages for infringement, dilution, misappropriation or other violation of such rights.
"Interconnection Facilities" means all of the Electric Interconnection Facilities and Gas Interconnection Facilities.
"Inventory" means any and all of the parts, equipment, supplies and other items of inventory intended to be used or consumed at the Project, including (i) Consumables; (ii) new, repaired or refurbished equipment, components, assemblies, or sub-assemblies; (iii) spare, replacement or other parts (including capital and non-capital spare parts); (iv) tools, special tools, or similar equipment; and (v) all associated materials, supplies, and other goods and other similar items of movable property; provided that no Project Major Maintenance Spares shall be considered Inventory hereunder.
"Inventory Report" means an inventory report prepared by Seller with respect to PB1 in the form set forth in Schedule 2.1(e), an inventory report prepared by Seller with respect to PB2 in the form set forth in Schedule 2.5(e), an inventory report prepared by Seller with respect to PB3 in the form set forth in Schedule 2.9(e), an inventory report prepared by Seller with respect to PB4 in the form set forth in Schedule 2.13(e), and an inventory report prepared by Seller with respect to the Common Facilities in the form set forth in Schedule 2.17(e).
"Knowledge" means the extent of the knowledge, as of the applicable time, of the individuals listed in Schedule 1.1A (with respect to Seller), Part I of Schedule 1.1B (with respect to EAI), Part II of Schedule 1.1B (with respect to EGSL) and Part III of Schedule 1.1B (with respect to ETI), in each case, after the due inquiry by such individuals (or their replacements or successors) of other individuals employed by the applicable Party or any of its Affiliates who would reasonably be expected to have knowledge of such event, fact, circumstance, condition or other matter.
"kW" means kilowatt.
"Late Testing Notice" has the meaning set forth in Section 6.7(g)(i).
"Laws" means all applicable federal, state, local, municipal, foreign or other laws, constitutions, statutes, rules, regulations, ordinances, Orders, codes and other legal requirements (excluding Permits) issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority, including the common law and NERC requirements, including the NERC reliability standards promulgated pursuant to 18 C.F.R. 39.
"Leased Personal Property" means, collectively, the Power Block Leased Personal Property and the Common Facilities Leased Personal Property.





"Leased Real Property" means, collectively, the Power Block Leased Real Property and the Common Facilities Leased Real Property.
"Letter of Intent" has the meaning set forth in the recitals of this Agreement.
"Losses" has the meaning set forth in Section 9.1(a).
"LPSC" means the Louisiana Public Service Commission.
"Major Maintenance Spare" means any set of stage 1 buckets, stage 2 buckets, stage 3 buckets, stage 1 nozzles, stage 2 nozzles, stage 3 nozzles, stage 1 shrouds, stage 2 shrouds, stage 3 shrouds, fuel nozzles, end caps, combustion liners, transition pieces, flow sleeves or substantially similar spare part, or set of spare parts, of Seller being held for use as a replacement part in connection with the performance of major maintenance on any Power Block. As used in this definition, "major maintenance" means the major maintenance described in the GE manual GER-3620K (12/04) applicable to the combustion turbines at the Project.
"Material Adverse Effect" means, with respect to Seller, any occurrence set forth in clause (a) or (b) of this definition, and, with respect to a Purchaser, any occurrence set forth in clause (a) of this definition:
a(any event, fact, circumstance or condition materially impairing such Party's authority, right, or ability to (i) perform any of its material obligations under this Agreement or any Ancillary Agreement to which it is a party or (ii) consummate the Transactions by the Expiration Date; or
b(any change (together with all other changes taken together) in, or effect on, the Purchased Assets that is materially adverse to the operations or physical condition of the Purchased Assets, taken as a whole, or the assets, properties, financial condition or results of operations of the Business, taken as a whole, except that any adverse change or effect to the extent it is due to the following shall be excluded from this clause (b):
(ia change in the economic conditions of the national or regional electric industry generally affecting such national or regional electric industry as a whole except to the extent that such changes have a materially disproportionate effect on the Purchased Assets relative to other gas-fired generation facilities located in Arkansas;
(iia change in the price of natural gas or other commodities for the Purchased Assets;
(iiia change in market prices for real estate;
(iva change in market prices for the sale and purchase of electric generating facilities or capacity, energy, or other products or services therefrom;
(van act of terrorism, war (whether or not declared) or military action (excluding acts that cause material physical damage to gas transportation assets or assets related to water or commodity delivery service to, or electric transmission service or water/effluent/waste disposal from, the Project Real Property assets in each case owned by third parties which prevent or materially restrict the intended use of the Project) or any weather event, climate change or act of God;
(via change in Laws, including those governing national, regional, state or local electric transmission or distribution systems, except to the extent that such changes have a materially disproportionate effect on the Purchased Assets relative to other gas-fired generation facilities located in Arkansas;
(viithe seasonality of the Business or effects of public perceptions of combined-cycle power generation facilities;
(viiigeneral United States or global economic conditions affecting capital or financial markets generally; or
(ixthe transactions contemplated by this Agreement and the Ancillary Agreements and any action taken pursuant to and in accordance with this Agreement or any Ancillary Agreement in effect.





"Material Project Contract" means a material Contract to which Seller is a party, or by which Seller or any of the Purchased Assets is bound, that relates to or has the primary purpose of supporting the Project or the Business.
"Minimum NRIS" has the meaning set forth in Section 6.22(a).
"MISO" means the Midcontinent Independent System Operator, Inc.
"MISO Rules" means, collectively, (i) the MISO Tariff, (ii) the MISO Business Practice Manuals (as defined in the MISO Tariff), and (iii) any other applicable binding policies, rules, guidelines, procedures, protocols, standards, criteria, instructions, directives, and requirements of MISO.
"MISO Tariff" means the MISO Open Access Transmission, Energy and Operating Reserve Market Tariff on file with FERC.
"MISO Transition Agreements" means, collectively, the PB1 MISO Transition Agreement, the PB2 MISO Transition Agreement, the PB3 MISO Transition Agreement and the PB4 MISO Transition Agreement.
"Monthly Inventory Report" means an Inventory Report prepared monthly by or for Seller with respect to each Power Block and the Common Facilities.
"Monthly Operating Report" means a monthly management report for the applicable period prepared by Seller in the form set forth in Schedule MOR, including technical discussions of capacity availability, outages, energy production, operations and maintenance. financial variances and health, safety, environmental and regulatory compliance of the Project and attaching reports covering such matters as have been covered in reports previously provided by Seller or are otherwise reasonably requested by any Purchaser.
"MW" means megawatt.
"Natural Gas Act" means the Natural Gas Act, 15 U.S.C. § 717 et seq.
"NERC" means the North American Electric Reliability Corporation.
"Non-Assigned Asset" has the meaning set forth in Section 6.5(c).
"Non-Defending Party" has the meaning set forth in Section 9.12(d).
"Non-Recourse Party" has the meaning set forth in Section 9.18(b).
"Notice of Third Party Claim" has the meaning set forth in Section 9.12(a).
"Notice Period" means the period that is thirty (30) days from the date of receipt by the Indemnitor of a Notice of Third Party Claim or Indemnity Notice, as applicable.
"NRIS" means network resource interconnection service under the MISO Tariff.
"NRIS Cancellation Costs" has the meaning set forth in Section 6.22(j).
"NRIS Upgrade Agreement" has the meaning set forth in Section 6.22(b).
"NRIS Upgrade Costs" means, with respect to the Pending NRIS Request or any Other NRIS Request, the transmission upgrade costs payable by Seller to MISO or a transmission owner to obtain NRIS.
"OEM" means original equipment manufacturer.
"Off-Site Real Property" means any real property used in connection with the Project other than the Project Real Property; provided that, with respect to the use of the term “Off-Site Real Property” in the definition of “Remediation”, such real property shall only refer to such real property (that is not Project Real Property) where Seller disposes of Hazardous Substances.
"Order" means any legally binding order, injunction, judgment, decree, ruling, writ, or assessment of a Governmental Authority or decision of an authorized arbitrator.
"Organizational Documents" means the articles of incorporation, certificate of incorporation, certificate of formation, bylaws, operating agreement, certificate of limited partnership, partnership agreement and all other similar documents, instruments or certificates executed, adopted or filed in connection with the creation, formation or organization of a Person, including amendments thereto.
"Other NRIS Request" has the meaning set forth in Section 6.22(b).
"Owned Real Property" means, collectively, the Power Block Owned Real Property and the Common Facilities Owned Real Property.





"Party" means Seller or any Purchaser, as the context requires; "Parties" means, collectively, Seller and each Purchaser.
"PB1" means the natural gas-fired combined-cycle power block known by the Parties as "Power Block One" and that includes, among other things, two (2) GE 7FA combustion turbines with inlet air fogging (CTGs) (Serial Numbers 297676 and 297677), two (2) Alstom heat recovery steam generators (HRSGs) with supplemental duct-firing capability, one (1) GE D-11 condensing steam turbine generator (STG) (Serial Number 270T496), and the building containing PB1, but excludes, for the avoidance of doubt, PB2, PB3, PB4 and the Common Facilities Assets.
"PB1 Assets" has the meaning set forth in Section 2.1.
"PB1 Assignment and Assumption Agreement" means an Assignment and Assumption Agreement, substantially in the form of Exhibit A-1, to be executed and delivered by Seller and PB1 Purchaser at the Closing.
"PB1 Assumed Liabilities" has the meaning set forth in Section 2.3.
"PB1 Baseline Inventory Value" has the meaning set forth in Section 3.5(a).
"PB1 Bill of Sale" means a Bill of Sale, substantially in the form of Exhibit B-1 or as otherwise provided pursuant to Section 6.21, to be executed and delivered by Seller or Union County, as applicable, at the Closing.
"PB1 Business" means the business of owning and operating PB1 and generating, selling and delivering electric energy and capacity and other electric products and services from PB1.
"PB1 Casualty Event" has the meaning set forth in Section 6.24(b).
"PB1 Casualty Event Notice" has the meaning set forth in Section 6.24(b).
"PB1 Closing Inventory Value" has the meaning set forth in Section 3.5(a).
"PB1 Contracts" has the meaning set forth in Section 2.1(f).
"PB1 Damaged Portion" has the meaning set forth in Section 6.24(b).
"PB1 Deed" means a Deed, substantially in the form of Exhibit C-1 or as otherwise provided pursuant to Section 6.21, conveying (i) fee title to the PB1 Owned Real Property, the PB1 IDA Bond Real Property, a 25% undivided ownership interest in the Common Facilities Owned Real Property, and a 25% undivided ownership interest in the Common Facilities IDA Bond Real Property and (ii) easement title to the PB1 Easements and a 25% undivided ownership interest in the Common Facilities Easements.
"PB1 Easements" has the meaning set forth in Section 2.1(c).
"PB1 Emission Allowances" has the meaning set forth in Section 2.1(l).
"PB1 Escrow Account" means the account established and to be maintained by the Escrow Agent pursuant to the PB1 Escrow Agreement.
"PB1 Escrow Agreement" means the PB1 Escrow Agreement, in the form of Exhibit D-1, to be executed and delivered by Escrow Agent, Seller and PB1 Purchaser at the Closing, as amended by such changes as may be mutually agreed to by Seller and PB1 Purchaser.
"PB1 Escrow Amount" has the meaning set forth in Section 3.3(a)(i).
"PB1 Estimated Closing Adjustment" has the meaning set forth in Section 3.8(a).
"PB1 Estimated Closing Statement" has the meaning set forth in Section 3.8(a).
"PB1 Estimated Purchase Price" has the meaning set forth in Section 3.8(a).
"PB1 Excluded Assets" has the meaning set forth in Section 2.2.
"PB1 Excluded Contracts" has the meaning set forth in Section 2.2(c).
"PB1 Excluded Employee Liabilities" has the meaning set forth in Section 2.4(g).
"PB1 Excluded Liabilities" has the meaning set forth in Section 2.4.
"PB1 IDA Bond Other Property " has the meaning set forth in Section 2.1(d).
"PB1 IDA Bond Real Property " has the meaning set forth in Section 2.1(a).
"PB1 Initial Post-Closing Adjustment" has the meaning set forth in Section 3.8(d).
"PB1 Insurable Real Property" means, collectively, (i) the PB1 Owned Real Property, (ii) the PB1 IDA Bond Real Property, (iii) the PB1 Leased Real Property, (iv) the PB1 Easements appurtenant to or





benefiting the PB1 Owned Real Property, PB1 IDA Bond Real Property or the PB1 Leased Real Property, (v) a twenty-five percent (25%) undivided ownership interest in the Common Facilities Owned Real Property, the Common Facilities IDA Bond Real Property and the Common Facilities Leased Real Property and (vi) a twenty-five percent (25%) undivided ownership interest in all Common Facilities Easements appurtenant to or benefiting the Common Facilities Owned Real Property, the Common Facilities IDA Bond Real Property or the Common Facilities Leased Real Property.
"PB1 Intellectual Property Rights" has the meaning set forth in Section 2.1(m).
"PB1 Inventory" has the meaning set forth in Section 2.1(e).
"PB1 Leased Personal Property" has the meaning set forth in Section 4.8(a).
"PB1 Leased Real Property" has the meaning set forth in Section 2.1(b).
"PB1 Major Maintenance Spares" means the Major Maintenance Spares listed on Schedule MMS-1, which shall include the book value and condition of each such Major Maintenance Spare, and any replacements or substitutions thereof procured by Seller specifically for PB1 in the ordinary course of the conduct of the Business.
"PB1 MISO Transition Agreement" means a MISO Transition Agreement, substantially in the form of Exhibit I-1, to be executed and delivered by Seller and PB1 Purchaser at the Closing.
"PB1 Owned Real Property" has the meaning set forth in Section 2.1(a).
"PB1 Permits" has the meaning set forth in Section 2.1(g).
"PB1 Post-Closing Statement" has the meaning set forth in Section 3.8(b).
"PB1 Prepaid Items" has the meaning set forth in Section 2.1(k).
"PB1 Proposed Post-Closing Adjustment" has the meaning set forth in Section 3.8(b).
"PB1 Purchase Price" has the meaning set forth in Section 3.4(a).
"PB1 Purchased Assets" means, collectively, the PB1 Assets and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Assets.
"PB1 Purchased Emission Allowances" means, collectively, the PB1 Emission Allowances and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Emission Allowances.
"PB1 Purchased Inventory" means, collectively, the PB1 Inventory and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Inventory.
"PB1 Purchased Major Maintenance Spares" means the PB1 Major Maintenance Spares that (i) PB1 Purchaser elects to purchase at the Closing by exercising its purchase option in accordance with Section 2.21(c) or Section 2.21(e), as applicable, or (ii) PB1 Purchaser agrees to purchase, and Seller agrees to sell, at the Closing in accordance with Section 2.21(f).
"PB1 Purchased Permits" means, collectively, the PB1 Permits and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Permits.
"PB1 Purchaser" means, subject to Section 2.22, ETI.
"PB1 Purchaser Claims" has the meaning set forth in Section 9.1(a).
"PB1 Purchaser Group" has the meaning set forth in Section 9.1(a).
"PB1 Real Property" means, collectively, (i) the PB1 Owned Real Property, (ii) the PB1 IDA Bond Real Property, (iii) the PB1 Leased Real Property and (iv) the PB1 Easements.
"PB1 Tangible Personal Property" has the meaning set forth in Section 2.1(d).
"PB1 Title Commitment" has the meaning set forth in Section 6.6(a)(i).
"PB1 Title Policy" has the meaning set forth in Section 7.8(a).
"PB1 Total Cost" has the meaning set forth in Section 6.24(c).
"PB1 Warranties" has the meaning set forth in Section 2.1(i).
"PB2" means the natural gas-fired combined-cycle power block known by the Parties as "Power Block Two" and that includes, among other things, two (2) GE 7FA combustion turbines with inlet air fogging (CTGs) (Serial Numbers 297726 and 297727), two (2) Alstom heat recovery steam generators (HRSGs) with supplemental duct-firing capability, one (1) GE D-11 condensing steam turbine generator





(STG) (Serial Number 270T497), and the building containing PB2, but excludes, for the avoidance of doubt, PB1, PB3, PB4 and the Common Facilities Assets.
"PB2 Assets" has the meaning set forth in Section 2.5.
"PB2 Assignment and Assumption Agreement" means an Assignment and Assumption Agreement, substantially in the form of Exhibit A-2, to be executed and delivered by Seller and PB2 Purchaser at the Closing.
"PB2 Assumed Liabilities" has the meaning set forth in Section 2.7.
"PB2 Baseline Inventory Value" has the meaning set forth in Section 3.5(c).
"PB2 Bill of Sale" means a Bill of Sale, substantially in the form of Exhibit B-2 or as otherwise provided pursuant to Section 6.21, to be executed and delivered by Seller or Union County, as applicable, at the Closing.
"PB2 Business" means the business of owning and operating PB2 and generating, selling and delivering electric energy and capacity and other electric products and services from PB2, including Seller's rights in respect of a twenty-five percent (25%) undivided ownership interest in the Common Facilities Assets.
"PB2 Casualty Event" has the meaning set forth in Section 6.25(b).
"PB2 Casualty Event Notice" has the meaning set forth in Section 6.25(b).
"PB2 Closing Inventory Value" has the meaning set forth in Section 3.5(c).
"PB2 Contracts" has the meaning set forth in Section 2.5(f).
"PB2 Damaged Portion" has the meaning set forth in Section 6.25(b).
"PB2 Deed" means a Deed, substantially in the form of Exhibit C-2 or as otherwise provided pursuant to Section 6.21, conveying (i) fee title to the PB2 Owned Real Property, the PB2 IDA Bond Real Property, and a 25% undivided ownership interests in the Common Facilities Owned Real Property and a 25% undivided ownership interest in the Common Facilities IDA Bond Real Property and (ii) easement title to the PB2 Easements and a 25% undivided ownership interest in the Common Facilities Easements.
"PB2 Easements" has the meaning set forth in Section 2.5(c).
"PB2 Emission Allowances" has the meaning set forth in Section 2.5(l).
"PB2 Escrow Account" means the account established and to be maintained by the Escrow Agent pursuant to the PB2 Escrow Agreement.
"PB2 Escrow Agreement" means the PB2 Escrow Agreement, in the form of Exhibit D-2, to be executed and delivered by Escrow Agent, Seller and PB2 Purchaser at the Closing, as amended by such changes as may be mutually agreed to by Seller and PB2 Purchaser.
"PB2 Escrow Amount" has the meaning set forth in Section 3.3(a)(ii).
"PB2 Estimated Closing Adjustment" has the meaning set forth in Section 3.8(a).
"PB2 Estimated Closing Statement" has the meaning set forth in Section 3.8(a).
"PB2 Estimated Purchase Price" has the meaning set forth in Section 3.8(a).
"PB2 Excluded Assets" has the meaning set forth in Section 2.6.
"PB2 Excluded Contracts" has the meaning set forth in Section 2.6(c).
"PB2 Excluded Employee Liabilities" has the meaning set forth in Section 2.8(g).
"PB2 Excluded Liabilities" has the meaning set forth in Section 2.8.
"PB2 IDA Bond Other Property " has the meaning set forth in Section 2.5(d).
"PB2 IDA Bond Real Property " has the meaning set forth in Section 2.5(a).
"PB2 Initial Post-Closing Adjustment" has the meaning set forth in Section 3.8(d).
"PB2 Insurable Real Property" means, collectively, (i) the PB2 Owned Real Property, the PB2 IDA Bond Real Property and all PB2 Easements appurtenant to or benefiting the PB2 Owned Real Property or the PB2 IDA Bond Real Property, (ii) the PB2 Leased Real Property and all PB2 Easements appurtenant to or benefiting the PB2 Leased Real Property, (iii) a twenty-five percent (25%) undivided ownership interest in the Common Facilities Owned Real Property, the Common Facilities IDA Bond Real Property and all Common Facilities Easements appurtenant to or benefiting the Common Facilities Owned





Real Property or the Common Facilities IDA Bond Real Property, and (iv) a twenty-five percent (25%) undivided ownership interest in the Common Facilities Leased Real Property and all Common Facilities Easements appurtenant to or benefiting the Common Facilities Leased Real Property.
"PB2 Intellectual Property Rights" has the meaning set forth in Section 2.5(m).
"PB2 Inventory" has the meaning set forth in Section 2.5(e).
"PB2 Leased Personal Property" has the meaning set forth in Section 4.8(b).
"PB2 Leased Real Property" has the meaning set forth in Section 2.5(b).
"PB2 Major Maintenance Spares" means the Major Maintenance Spares listed on Schedule MMS-2, which shall include the book value and condition of each such Major Maintenance Spare, and any replacements or substitutions thereof procured by Seller primarily for PB2 in the ordinary course of the conduct of the Business.
"PB2 MISO Transition Agreement" means a MISO Transition Agreement, substantially in the form of Exhibit I-2, to be executed and delivered by Seller and PB2 Purchaser at the Closing.
"PB2 Owned Real Property" has the meaning set forth in Section 2.5(a).
"PB2 Permits" has the meaning set forth in Section 2.5(g).
"PB2 Post-Closing Statement" has the meaning set forth in Section 3.8(b).
"PB2 Prepaid Items" has the meaning set forth in Section 2.5(k).
"PB2 Proposed Post-Closing Adjustment" has the meaning set forth in Section 3.8(b).
"PB2 Purchase Price" has the meaning set forth in Section 3.4(b).
"PB2 Purchased Assets" means, collectively, the PB2 Assets and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Assets.
"PB2 Purchased Emission Allowances" means, collectively, the PB2 Emission Allowances and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Emission Allowances.
"PB2 Purchased Inventory" means, collectively, the PB2 Inventory and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Inventory.
"PB2 Purchased Major Maintenance Spares" means the PB2 Major Maintenance Spares that (i) PB2 Purchaser elects to purchase at the Closing by exercising its purchase option in accordance with Section 2.21(c) or Section 2.21(e), as applicable, or (ii) PB2 Purchaser agrees to purchase, and Seller agrees to sell, at the Closing in accordance with Section 2.21(f).
"PB2 Purchased Permits" means, collectively, the PB2 Permits and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Permits.
"PB2 Purchaser" means, subject to Section 2.22, EAI.
"PB2 Purchaser Claims" has the meaning set forth in Section 9.2(a).
"PB2 Purchaser Group" has the meaning set forth in Section 9.2(a).
"PB2 Real Property" means, collectively, (i) the PB2 Owned Real Property, (ii) the PB2 IDA Bond Real Property, (iii) the PB2 Leased Real Property and (iv) the PB2 Easements.
"PB2 Tangible Personal Property" has the meaning set forth in Section 2.5(d).
"PB2 Title Commitment" has the meaning set forth in Section 6.6(a)(i).
"PB2 Title Policy" has the meaning set forth in Section 7.8(b).
"PB2 Total Cost" has the meaning set forth in Section 6.25(c).
"PB2 Warranties" has the meaning set forth in Section 2.5(i).
"PB3" means the natural gas-fired combined-cycle power block known by the Parties as "Power Block Three" and that includes, among other things, two (2) GE 7FA combustion turbines with inlet air fogging (CTGs) (Serial Numbers 297967 and 297968), two (2) Alstom heat recovery steam generators (HRSGs) with supplemental duct-firing capability, one (1) GE D-11 condensing steam turbine generator (STG) (Serial Number 270T577), and the building containing PB3, but excludes, for the avoidance of doubt, PB1, PB2, PB4 and the Common Facilities Assets.
"PB3 Assets" has the meaning set forth in Section 2.9.





"PB3 Assignment and Assumption Agreement" means an Assignment and Assumption Agreement, substantially in the form of Exhibit A-3, to be executed and delivered by Seller and PB3 Purchaser at the Closing.
"PB3 Assumed Liabilities" has the meaning set forth in Section 2.11.
"PB3 Baseline Inventory Value" has the meaning set forth in Section 3.5(e).
"PB3 Bill of Sale" means a Bill of Sale, substantially in the form of Exhibit B-3 or as otherwise provided pursuant to Section 6.21, to be executed and delivered by Seller or Union County, as applicable, at the Closing.
"PB3 Business" means the business of owning and operating PB3 and generating, selling and delivering electric energy and capacity and other electric products and services from PB3, including Seller's rights in respect of a twenty-five percent (25%) undivided ownership interest in the Common Facilities Assets.
"PB3 Casualty Event" has the meaning set forth in Section 6.26(b).
"PB3 Casualty Event Notice" has the meaning set forth in Section 6.26(b).
"PB3 Closing Inventory Value" has the meaning set forth in Section 3.5(e).
"PB3 Contracts" has the meaning set forth in Section 2.9(f).
"PB3 Damaged Portion" has the meaning set forth in Section 6.26(b).
"PB3 Deed" means a Deed, substantially in the form of Exhibit C-3 or as otherwise provided pursuant to Section 6.21, conveying (i) fee title to the PB3 Owned Real Property, the PB3 IDA Bond Real Property, a 25% undivided ownership interests in the Common Facilities Owned Real Property and a 25% undivided ownership interest in the Common Facilities IDA Bond Real Property and (ii) easement title to the PB3 Easements and a 25% undivided ownership interest in the Common Facilities Easements.
"PB3 Easements" has the meaning set forth in Section 2.9(c).
"PB3 Emission Allowances" has the meaning set forth in Section 2.9(l).
"PB3 Escrow Account" means the account established and to be maintained by the Escrow Agent pursuant to the PB3 Escrow Agreement.
"PB3 Escrow Agreement" means the PB3 Escrow Agreement, in the form of Exhibit D-3, to be executed and delivered by Escrow Agent, Seller and PB3 Purchaser at the Closing, as amended by such changes as may be mutually agreed to by Seller and PB3 Purchaser.
"PB3 Escrow Amount" has the meaning set forth in Section 3.3(a)(iii).
"PB3 Estimated Closing Adjustment" has the meaning set forth in Section 3.8(a).
"PB3 Estimated Closing Statement" has the meaning set forth in Section 3.8(a).
"PB3 Estimated Purchase Price" has the meaning set forth in Section 3.8(a).
"PB3 Excluded Assets" has the meaning set forth in Section 2.10.
"PB3 Excluded Contracts" has the meaning set forth in Section 2.10(c).
"PB3 Excluded Employee Liabilities" has the meaning set forth in Section 2.12(g).
"PB3 Excluded Liabilities" has the meaning set forth in Section 2.12.
"PB3 IDA Bond Other Property " has the meaning set forth in Section 2.9(d).
"PB3 IDA Bond Real Property " has the meaning set forth in Section 2.9(a).
"PB3 Initial Post-Closing Adjustment" has the meaning set forth in Section 3.8(d).
"PB3 Insurable Real Property" means, collectively, (i) the PB3 Owned Real Property, the PB3 IDA Bond Real Property and all PB3 Easements appurtenant to or benefiting the PB3 Owned Real Property or the PB3 IDA Bond Real Property, (ii) the PB3 Leased Real Property and all PB3 Easements appurtenant to or benefiting the PB3 Leased Real Property, (iii) a twenty-five percent (25%) undivided ownership interest in the Common Facilities Owned Real Property, the Common Facilities IDA Bond Real Property and all Common Facilities Easements appurtenant to or benefiting the Common Facilities Owned Real Property or the Common Facilities IDA Bond Real Property, and (iv) a twenty-five percent (25%) undivided ownership interest in the Common Facilities Leased Real Property and all Common Facilities Easements appurtenant to or benefiting the Common Facilities Leased Real Property.





"PB3 Intellectual Property Rights" has the meaning set forth in Section 2.9(m).
"PB3 Inventory" has the meaning set forth in Section 2.9(e).
"PB3 Leased Personal Property" has the meaning set forth in Section 4.8(c).
"PB3 Leased Real Property" has the meaning set forth in Section 2.9(b).
"PB3 Major Maintenance Spares" means the Major Maintenance Spares listed on Schedule MMS-3, which shall include the book value and condition of each such Major Maintenance Spare, and any replacements or substitutions thereof procured by Seller primarily for PB3 in the ordinary course of the conduct of the Business.
"PB3 MISO Transition Agreement" means a MISO Transition Agreement, substantially in the form of Exhibit I-3, to be executed and delivered by Seller and PB3 Purchaser at the Closing.
"PB3 Owned Real Property" has the meaning set forth in Section 2.9(a).
"PB3 Permits" has the meaning set forth in Section 2.9(g).
"PB3 Post-Closing Statement" has the meaning set forth in Section 3.8(b).
"PB3 Prepaid Items" has the meaning set forth in Section 2.9(k).
"PB3 Proposed Post-Closing Adjustment" has the meaning set forth in Section 3.8(b).
"PB3 Purchase Price" has the meaning set forth in Section 3.4(c).
"PB3 Purchased Assets" means, collectively, the PB3 Assets and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Assets.
"PB3 Purchased Emission Allowances" means, collectively, the PB3 Emission Allowances and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Emission Allowances.
"PB3 Purchased Inventory" means, collectively, the PB3 Inventory and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Inventory.
"PB3 Purchased Major Maintenance Spares" means the PB3 Major Maintenance Spares that (i) PB3 Purchaser elects to purchase at the Closing by exercising its purchase option in accordance with Section 2.21(c) or Section 2.21(e), as applicable, or (ii) PB3 Purchaser agrees to purchase, and Seller agrees to sell, at the Closing in accordance with Section 2.21(f).
"PB3 Purchased Permits" means, collectively, the PB3 Permits and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Permits.
"PB3 Purchaser" means, subject to Section 2.22, EGSL.
"PB3 Purchaser Claims" has the meaning set forth in Section 9.3(a).
"PB3 Purchaser Group" has the meaning set forth in Section 9.3(a).
"PB3 Real Property" means, collectively, (i) the PB3 Owned Real Property, (ii) the PB3 IDA Bond Real Property, (iii) the PB3 Leased Real Property and (iv) the PB3 Easements.
"PB3 Tangible Personal Property" has the meaning set forth in Section 2.9(d).
"PB3 Title Commitment" has the meaning set forth in Section 6.6(a)(i).
"PB3 Title Policy" has the meaning set forth in Section 7.8(c).
"PB3 Total Cost" has the meaning set forth in Section 6.26(c).
"PB3 Warranties" has the meaning set forth in Section 2.9(i).
"PB4" means the natural gas-fired combined-cycle power block known by the Parties as "Power Block Four" and that includes, among other things, two (2) GE 7FA combustion turbines with inlet air fogging (CTGs) (Serial Numbers 297969 and 297970), two (2) Alstom heat recovery steam generators (HRSGs) with supplemental duct-firing capability, one (1) GE D-11 condensing steam turbine generator (STG) (Serial Number 270T578), and the building containing PB4, but excludes, for the avoidance of doubt, PB1, PB2, PB3 and the Common Facilities Assets.
"PB4 Assets" has the meaning set forth in Section 2.13.
"PB4 Assignment and Assumption Agreement" means an Assignment and Assumption Agreement, substantially in the form of Exhibit A-4, to be executed and delivered by Seller and PB4 Purchaser at the Closing.





"PB4 Assumed Liabilities" has the meaning set forth in Section 2.15.
"PB4 Baseline Inventory Value" has the meaning set forth in Section 3.5(g).
"PB4 Bill of Sale" means a Bill of Sale, substantially in the form of Exhibit B-4 or as otherwise provided pursuant to Section 6.21, to be executed and delivered by Seller or Union County, as applicable, at the Closing.
"PB4 Business" means the business of owning and operating PB4 and generating, selling and delivering electric energy and capacity and other electric products and services from PB4, including Seller's rights in respect of a twenty-five percent (25%) undivided ownership interest in the Common Facilities Assets.
"PB4 Casualty Event" has the meaning set forth in Section 6.27(b).
"PB4 Casualty Event Notice" has the meaning set forth in Section 6.27(b).
"PB4 Closing Inventory Value" has the meaning set forth in Section 3.5(g).
"PB4 Contracts" has the meaning set forth in Section 2.13(f).
"PB4 Damaged Portion" has the meaning set forth in Section 6.27(b).
"PB4 Deed" means a Deed, substantially in the form of Exhibit C-4 or as otherwise provided pursuant to Section 6.21, conveying (i) fee title to the PB4 Owned Real Property, the PB4 IDA Bond Real Property, a 25% undivided ownership interests in the Common Facilities Owned Real Property and a 25% undivided ownership interest in the Common Facilities IDA Owned Real Property and (ii) easement title to the PB4 Easements and a 25% undivided ownership interest in the Common Facilities Easements.
"PB4 Easements" has the meaning set forth in Section 2.13(c).
"PB4 Emission Allowances" has the meaning set forth in Section 2.13(l).
"PB4 Escrow Account" means the account established and to be maintained by the Escrow Agent pursuant to the PB4 Escrow Agreement.
"PB4 Escrow Agreement" means the PB4 Escrow Agreement, in the form of Exhibit D-4, to be executed and delivered by Escrow Agent, Seller and PB4 Purchaser at the Closing, as amended by such changes as may be mutually agreed to by Seller and PB4 Purchaser.
"PB4 Escrow Amount" has the meaning set forth in Section 3.3(a)(iv).
"PB4 Estimated Closing Adjustment" has the meaning set forth in Section 3.8(a).
"PB4 Estimated Closing Statement" has the meaning set forth in Section 3.8(a).
"PB4 Estimated Purchase Price" has the meaning set forth in Section 3.8(a).
"PB4 Excluded Assets" has the meaning set forth in Section 2.14.
"PB4 Excluded Contracts" has the meaning set forth in Section 2.14(c).
"PB4 Excluded Employee Liabilities" has the meaning set forth in Section 2.16(g).
"PB4 Excluded Liabilities" has the meaning set forth in Section 2.16.
"PB4 IDA Bond Other Property " has the meaning set forth in Section 2.13(d).
"PB4 IDA Bond Real Property " has the meaning set forth in Section 2.13(a).
"PB4 Initial Post-Closing Adjustment" has the meaning set forth in Section 3.8(d).
"PB4 Insurable Real Property" means, collectively, (i) the PB4 Owned Real Property, the PB4 IDA Bond Real Property and all PB4 Easements appurtenant to or benefiting the PB4 Owned Real Property or the PB4 IDA Bond Real Property, (ii) the PB4 Leased Real Property and all PB4 Easements appurtenant to or benefiting the PB4 Leased Real Property, (iii) a twenty-five percent (25%) undivided ownership interest in the Common Facilities Owned Real Property, the Common Facilities IDA Bond Real Property and all Common Facilities Easements appurtenant to or benefiting the Common Facilities Owned Real Property or the Common Facilities IDA Bond Real Property, and (iv) a twenty-five percent (25%) undivided ownership interest in the Common Facilities Leased Real Property and all Common Facilities Easements appurtenant to or benefiting the Common Facilities Leased Real Property.
"PB4 Intellectual Property Rights" has the meaning set forth in Section 2.13(m).
"PB4 Inventory" has the meaning set forth in Section 2.13(e).
"PB4 Leased Personal Property" has the meaning set forth in Section 4.8(d).





"PB4 Leased Real Property" has the meaning set forth in Section 2.13(b).
"PB4 Major Maintenance Spares" means the Major Maintenance Spares listed on Schedule MMS-4, which shall include the book value and condition of each such Major Maintenance Spare, and any replacements or substitutions thereof procured by Seller primarily for PB4 in the ordinary course of the conduct of the Business.
"PB4 MISO Transition Agreement" means a MISO Transition Agreement, substantially in the form of Exhibit I-4, to be executed and delivered by Seller and PB4 Purchaser at the Closing.
"PB4 Owned Real Property" has the meaning set forth in Section 2.13(a).
"PB4 Permits" has the meaning set forth in Section 2.13(g).
"PB4 Post-Closing Statement" has the meaning set forth in Section 3.8(b).
"PB4 Prepaid Items" has the meaning set forth in Section 2.13(k).
"PB4 Proposed Post-Closing Adjustment" has the meaning set forth in Section 3.8(b).
"PB4 Purchase Price" has the meaning set forth in Section 3.4(d).
"PB4 Purchased Assets" means, collectively, the PB4 Assets and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Assets.
"PB4 Purchased Emission Allowances" means, collectively, the PB4 Emission Allowances and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Emission Allowances.
"PB4 Purchased Inventory" means, collectively, the PB4 Inventory and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Inventory.
"PB4 Purchased Major Maintenance Spares" means the PB4 Major Maintenance Spares that (i) PB4 Purchaser elects to purchase at the Closing by exercising its purchase option in accordance with Section 2.21(c) or Section 2.21(e), as applicable, or (ii) PB4 Purchaser agrees to purchase, and Seller agrees to sell, at the Closing in accordance with Section 2.21(f).
"PB4 Purchased Permits" means, collectively, the PB4 Permits and a twenty-five percent (25%) undivided ownership interest in the Common Facilities Permits.
"PB4 Purchaser" means, subject to Section 2.22, EGSL.
"PB4 Purchaser Claims" has the meaning set forth in Section 9.4(a).
"PB4 Purchaser Group" has the meaning set forth in Section 9.4(a).
"PB4 Real Property" means, collectively, (i) the PB4 Owned Real Property, (ii) the PB4 IDA Bond Real Property, (iii) the PB4 Leased Real Property and (iv) the PB4 Easements.
"PB4 Tangible Personal Property" has the meaning set forth in Section 2.13(d).
"PB4 Title Commitment" has the meaning set forth in Section 6.6(a)(i).
"PB4 Title Policy" has the meaning set forth in Section 7.8(d).
"PB4 Total Cost" has the meaning set forth in Section 6.27(c).
"PB4 Warranties" has the meaning set forth in Section 2.13(i).
"Pending NRIS Request" has the meaning set forth in Section 6.22(a).
"Permits" means any and all permits, registrations, licenses, franchises, certificates and Consents of Governmental Authorities to the extent required or used in connection with the operation of the Project or the conduct of the Business.
"Permitted Encumbrances" means (i) liens for Property Taxes and other governmental charges and assessments (x) that are not yet due and payable or (y) the validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics', materialmens', laborers', carriers', workers', repairers' and other similar liens arising in the ordinary course of business by operation of Law for sums not yet due and payable (provided, that, with respect to any such Encumbrances that will be in existence at the Closing, such Encumbrances shall only be Permitted Encumbrances to the extent that the underlying obligations are agreed to be or deemed to be Assumed Liabilities under this Agreement or payment for such obligations is addressed pursuant to another Section of this Agreement (e.g., as a Proratable Non-Tax Item etc.)), (iii) the Encumbrances described in Schedule 1.1C and any and all other Encumbrances that will be





and are discharged or released either prior to, or simultaneously with, the Closing, (iv) all matters revealed on the Existing Survey, subject to the conditions described in Schedule 1.1C, (v) all matters revealed on each Title Commitment to which a Purchaser does not object in accordance with Section 6.6(c), (vi) Encumbrances with respect to any of the Purchased Assets and created by or resulting from the acts or omissions of any Purchaser or this Agreement, (vii) Encumbrances arising under Assumed Contracts, (viii) all present and future building codes, land use, environmental, zoning, planning and other similar limitations and restrictions or Laws on the Project Real Property, (ix) the leases and subleases between Seller, as landlord or sublandlord, and any third Person, as tenant or subtenant, set forth on Schedule 1.1E that grant a leasehold or subleasehold interest in all or any portion of the Project Real Property, (x) with respect to all Project Real Property in which Seller owns less than a fee interest, all non-monetary Encumbrances which are suffered or incurred by the fee owner, any superior lessor, sublessors or licensor, or any inferior lessee, sublessee or licensee without the consent of the Seller but only to the extent any such Encumbrance individually or in the aggregate with any other Encumbrances could not reasonably be expected to materially adversely affect any Purchaser's ability to operate and maintain the Purchased Assets to be purchased by such Purchaser and conduct the Business, and (xi) any imperfection of title or similar non-monetary Encumbrance that individually or in the aggregate with other such Encumbrances could not reasonably be expected to materially adversely affect any Purchaser's ability to operate and maintain the Purchased Assets to be purchased by such Purchaser and conduct the Business.
"Person" means any individual, partnership, joint venture, corporation, limited liability company, estate, trust, association or unincorporated organization, any Governmental Authority or any other entity.
"Post-Closing Confidentiality Agreement" means the confidentiality agreement to be executed and delivered by Entegra TC, Seller and each Purchaser at the Closing in the form attached hereto as Exhibit E.
"Post-Closing Statement" means each of the PB1 Post-Closing Statement, the PB2 Post-Closing Statement, the PB3 Post-Closing Statement and the PB4 Post-Closing Statement; collectively, the "Post-Closing Statements".
"Power Block" means each of PB1, PB2, PB3 and PB4; collectively, the "Power Blocks."
"Power Block Assumed Liabilities" means, collectively, the PB1 Assumed Liabilities, the PB2 Assumed Liabilities, the PB3 Assumed Liabilities and the PB4 Assumed Liabilities.
"Power Block Capacity" means, with respect to each Power Block, the full-load (with duct burners) dependable net electric generating capability of such Power Block, adjusted to Reference Conditions and expressed in whole kW (with a fractional kW amount below 0.5 being rounded down to the nearest whole kW and a fractional MW amount equal to or above 0.5 being rounded up to the nearest whole kW), determined pursuant to a Power Block Performance Test.
"Power Block CO Emission Rate" means, with respect to each combustion turbine and heat recovery steam generator stack at each Power Block, the emission rate of CO (in lbs./hour and in ppmvd, corrected to 15% O2) of such combustion turbine and heat recovery steam generator stack, determined pursuant to a Power Block Performance Test with respect to such combustion turbine and heat recovery steam generator stack at such Power Block.
"Power Block Contracts" means, collectively, the PB1 Contracts, the PB2 Contracts, the PB3 Contracts and the PB4 Contracts.
"Power Block Easements" means, collectively, the PB1 Easements, the PB2 Easements, the PB3 Easements and the PB4 Easements.
"Power Block Excluded Assets" means, collectively, the PB1 Excluded Assets, the PB2 Excluded Assets, the PB3 Excluded Assets and the PB4 Excluded Assets.
"Power Block Excluded Contracts" means, collectively, the PB1 Excluded Contracts, the PB2 Excluded Contracts, the PB3 Excluded Contracts and the PB4 Excluded Contracts.





"Power Block Excluded Liabilities" means, collectively, the PB1 Excluded Liabilities, the PB2 Excluded Liabilities, the PB3 Excluded Liabilities and the PB4 Excluded Liabilities.
"Power Block Gas Transportation Agreement (FERC) Capacity Rights" means, with respect to each Power Block, twenty-five percent (25%) of the capacity rights under the Gas Transportation Agreement (FERC); provided, however, that, if the EAI Tolling Agreement will be assigned in connection with the Closing by Seller to the Project Purchaser of the Tolled Power Block, the foregoing capacity rights with respect to the Tolled Power Block shall be subject to the EAI Temporary Capacity Release.
"Power Block Heat Rate" means, with respect to each Power Block, the net heat rate (in Btu/kWh - HHV) of the electric generating units of such Power Block in the 2 x 1 combined-cycle mode at such Power Block's full-load operating capabilities without duct firing, adjusted to Reference Conditions, determined pursuant to a Power Block Performance Test.
"Power Block Intellectual Property Rights" means, collectively, the PB1 Intellectual Property Rights, the PB2 Intellectual Property Rights, the PB3 Intellectual Property Rights and the PB4 Intellectual Property Rights.
"Power Block Inventory" means, collectively, the PB1 Inventory, the PB2 Inventory, the PB3 Inventory and the PB4 Inventory.
"Power Block Leased Personal Property" means, collectively, the PB1 Leased Personal Property, the PB2 Leased Personal Property, the PB3 Leased Personal Property and the PB4 Leased Personal Property.
"Power Block Leased Real Property" means, collectively, the PB1 Leased Real Property, the PB2 Leased Real Property, the PB3 Leased Real Property and the PB4 Leased Real Property.
"Power Block NOx Emission Rate" means, with respect to each combustion turbine and heat recovery steam generator stack at each Power Block, the emission rate of NOx (in lbs./hour and in ppmvd, corrected to 15% O2) for such combustion turbine and heat recovery steam generator stack, determined pursuant to a Power Block Performance Test with respect to such combustion turbine and heat recovery steam generator stack at such Power Block.
"Power Block Owned Real Property" means, collectively, the PB1 Owned Real Property, the PB2 Owned Real Property, the PB3 Owned Real Property and the PB4 Owned Real Property.
"Power Block Performance Parameter" means, (i) with respect to each Power Block, each of (A) the Contract Capacity for such Power Block and (B) the Contract Heat Rate for such Power Block, (ii) with respect to each combustion turbine and heat recovery steam generator stack at each Power Block, (A) the Contract NOx Emission Rate for such combustion turbine and heat recovery steam generator stack, and (B) the Contract CO Emission Rate for such combustion turbine and heat recovery steam generator stack, (iii) with respect to each turbine generator bearing of each combustion turbine, steam turbine and generator of each Power Block, the Contract Vibration Level (Full Load) with respect to each turbine generator bearing of such combustion turbine, steam turbine and generator and (iv) with respect to all "rotor criticals" of each Power Block, the Contract Vibration Level (Start-Up and Coast-Down) of such "rotor criticals"; collectively, the "Power Block Performance Parameters."
"Power Block Performance Re-Test" has the meaning set forth in Section 6.7(d).
"Power Block Performance Test" means, with respect to each Power Block, a test of the performance of such Power Block conducted in accordance with Good Industry Practices, the protocols and procedures attached hereto as Schedule 6.7, and the requirements of this Agreement and based on American Society of Mechanical Engineers (ASME) standards to determine, with respect to such Power Block, (i) the Power Block Capacity, (ii) the Power Block Heat Rate, (iii) the amount of and rates of CO and NOx emissions from the generating units at such Power Block, (iv) the Power Block Vibration Level (Full Load) and (v) the Power Block Vibration Level (Start-Up and Coast-Down).
"Power Block Performance Test Contractor" means McHale & Associates, Inc. or such other independent, experienced and reputable contractor as the Parties may agree upon in a writing signed by the Parties.





"Power Block Performance Test Report" has the meaning set forth in Section 6.7(b).
"Power Block Performance Test Results" has the meaning set forth in Section 6.7(b).
"Power Block Permits" means, collectively, the PB1 Permits, the PB2 Permits, the PB3 Permits and the PB4 Permits.
"Power Block Prepaid Items" means, collectively, the PB1 Prepaid Items, the PB2 Prepaid Items, the PB3 Prepaid Items and the PB4 Prepaid Items.
"Power Block Purchased Assets" means, collectively, the PB1 Assets, the PB2 Assets, the PB3 Assets and the PB4 Assets.
"Power Block Tangible Personal Property" means, collectively, the PB1 Tangible Personal Property, the PB2 Tangible Personal Property, the PB3 Tangible Personal Property and the PB4 Tangible Personal Property.
"Power Block Vibration Level (Full Load)" means, with respect to each turbine generator bearing of each combustion turbine, steam turbine and generator of each Power Block, the vibration on such turbine generator bearing of such combustion turbine, steam turbine and generator of such Power Block when such Power Block is operating at or near full load based on data from the "PI Historian" system.
"Power Block Vibration Level (Start-Up and Coast-Down)" means, with respect to all "rotor criticals" of each Power Block, the vibration on such "rotor critical" of such Power Block when such Power Block is operating during start-up and coast-down based on data from the "PI Historian" system.
"Power Block Warranties" means, collectively, the PB1 Warranties, the PB2 Warranties, the PB3 Warranties and the PB4 Warranties.
"PPA" means any power purchase agreement or tolling agreement between any Purchaser and/or an Affiliate of any Purchaser and Seller and/or any Affiliate of Seller relating to the purchase and sale of capacity, energy and ancillary services from the Project.
"Pre-Closing Period" means any period of time beginning and ending on or prior to the Closing Date.
"Predecessor-in-Interest" means any prior owner of, or predecessor-in-interest with respect to, the Project.
"Prepaid Items" means, collectively, the Power Block Prepaid Items and the Common Facilities Prepaid Items.
"Project" means the nominal 2,160 MW natural gas-fueled, combined-cycle, electrical generation plant located on the Project Real Property that is owned, operated or controlled by Seller, including PB1, PB2, PB3 and PB4. A general description of the generation plant component of the Project is provided in Schedule 1.1D.
"Project Emission Allowances" means, collectively, the PB1 Emission Allowances, the PB2 Emission Allowances, the PB3 Emission Allowances, the PB4 Emission Allowances and the Common Facilities Emission Allowances.
"Project Employee" means, as of the Effective Date and the Closing Date, as applicable, each present or former Employee of any member of the Entegra Group who is or was engaged primarily in the performance of services for the Project or the Purchased Assets at the Project Real Property.
"Project Excluded Contracts" means, collectively, the Power Block Excluded Contracts and the Common Facilities Excluded Contracts.
"Project Insurance Policies" means all insurance policies (including all fidelity bonds and other surety arrangements) carried by or for the benefit of Seller or any of its Affiliates with respect to the ownership, use, operation or maintenance of the Project, the Project Real Property or the Business, including all liability, workers compensation, executive risk, fiduciary liability (or any other ERISA plan of protection), all-risk property insurance, self-insurance arrangements, retrospective assessments and business interruption and/or outage policies in respect thereof.





"Project Major Maintenance Spares" means, collectively, the PB1 Major Maintenance Spares, the PB2 Major Maintenance Spares, the PB3 Major Maintenance Spares, the PB4 Major Maintenance Spares and the Common Facilities Major Maintenance Spares.
"Project Purchaser" means, each of PB1 Purchaser, PB2 Purchaser, PB3 Purchaser and PB4 Purchaser; collectively, the "Project Purchasers".
"Project Real Property" means, collectively, the Owned Real Property, the IDA Bond Real Property, the Leased Real Property and the Easements.
"Property Tax" means any Tax resulting from and relating to the assessment of real or personal property by any Governmental Authority.
"Proposed Post-Closing Adjustment" means each of the PB1 Proposed Post-Closing Adjustment, the PB2 Proposed Post-Closing Adjustment, the PB3 Proposed Post-Closing Adjustment and the PB4 Proposed Post-Closing Adjustment; collectively, the "Proposed Post-Closing Adjustments".
"Proratable Item" means any Proratable Non-Tax Item or Proratable Tax Item.
"Proratable Non-Tax Item" means any item of receipt or disbursement under a Purchased Contract or a Purchased License, including any Prepaid Item thereunder, covering a period both prior to and following the Closing and incurred by Seller prior to the Closing in the ordinary course of business consistent with past practice and the provisions of this Agreement. For the avoidance of doubt, a Purchased Permit is not a Proratable Non-Tax Item; provided, however, that any fee under a Purchased Permit that is an Environmental Permit and covers a discrete, defined period of time, a portion of which is prior to and a portion of which follows the Closing, and is based on pollutant emissions over such defined period shall constitute a Proratable Non-Tax Item.
"Proratable Tax Item" means the Property Taxes assessed with respect to the Project Real Property and the Taxable Project Personal Property for the year in which the Closing occurs. For the avoidance of doubt, no Tax other than a Property Tax shall be a Proratable Tax Item.
"Protective Apparatus" means such equipment and apparatus that are owned, operated or controlled by Seller, including protective relays, circuit breakers and the like, necessary or appropriate to isolate the Project from the electrical system to which they are connected consistent with Good Industry Practices.
"PUCT" means the Public Utility Commission of Texas.
Purchase Price” means the sum of the PB1 Purchase Price, the PB2 Purchase Price, the PB3 Purchase Price and the PB4 Purchase Price.
"Purchased Assets" means, collectively, the Power Block Purchased Assets and the Common Facilities Assets.
"Purchased Contracts" means, collectively, the Power Block Contracts and the Common Facilities Contracts; each, a "Purchased Contract."
"Purchased Intellectual Property Rights" means, collectively, the Power Block Intellectual Property Rights and the Common Facilities Intellectual Property Rights.
"Purchased Inventory" means, collectively, the Power Block Inventory and the Common Facilities Inventory.
"Purchased License" has the meaning set forth in Section 4.13(b).
"Purchased Permits" means, collectively, the Power Block Permits and the Common Facilities Permits; each a "Purchased Permit."
"Purchased Tangible Personal Property" means, collectively, the Power Block Tangible Personal Property and the Common Facilities Tangible Personal Property.
"Purchased Warranties" means, collectively, the Power Block Warranties and the Common Facilities Warranties; each, a "Purchased Warranty".
"Purchaser" and "Purchasers" have the meaning set forth in the introductory paragraph of this Agreement.





"Purchasers' Consents" means the notices to or Consents of any Person other than a Governmental Authority required by a Purchaser to be made or obtained by or on behalf of such Purchaser prior to consummation of the Transactions, as specified in Part I of Schedule 5.3.
"Purchasers' Regulatory Approvals" means the notices to, applications or other filings with or Consents of or from any Governmental Authority of competent jurisdiction over any Purchaser (including such Purchaser's retail operations), any Affiliate of such Purchaser, the Project or the Transactions to be filed, made or obtained by such Purchaser or any of its Affiliates that such Purchaser deems necessary or advisable for it to consummate the Transactions, including approval from a Governmental Authority having jurisdiction over such Purchaser (i) to proceed with the Transactions on the terms set forth herein and in the Ancillary Agreements and recover all costs associated with the Transactions on terms acceptable to such Purchaser in its sole and absolute discretion and (ii) providing for such other regulatory treatment, including with respect to timing, scope, and means of recovery, as is acceptable to such Purchaser in its sole and absolute discretion. Purchaser's Regulatory Approvals are set forth in Part II of Schedule 5.3.
"Purchasers' Required Consents" means the Purchasers' Consents marked with an asterisk on Part I of Schedule 5.3.
"Recorded Documents" has the meaning set forth in Section 6.6(a)(ii).
"Reference Conditions" has the meaning set forth in Schedule 6.7.
"Regency" means Regency Intrastate Gas LP, a Delaware limited partnership.
"Related Person" means, with respect to any Person, all past, present and future directors, officers, members, managers, stockholders, Employees, controlling persons, agents, professionals, attorneys, accountants, investment bankers, Affiliates or Representatives of any such Person.
"Release" has the meaning set forth in Environmental Laws, including CERCLA, but also shall include any actual or threatened release, spill, leak, discharge, abandonment, disposal, pumping, pouring, emitting, emptying, injecting, leaching, dumping or deposit into the Environment or any of the Project Real Property, of any Hazardous Substance, including the abandonment or discarding of any Hazardous Substance in barrels, drums, or other containers, into or within the Environment.
"Remediation" means any action taken in accordance with or required under Environmental Laws to address an Environmental Condition or the Release or presence of Hazardous Substances into or in the Environment at the Project Real Property or any Off-Site Real Property, including (i) monitoring, investigation, assessment, treatment, clean-up, containment, remediation, removal, mitigation, response or restoration work; (ii) obtaining any Permit necessary to conduct any such work; (iii) preparing and implementing any plan or study for such work; (iv) obtaining a written notice from a Governmental Authority with jurisdiction under Environmental Laws that no material additional work is required by such Governmental Authority; and (v) any response to, or preparation for, any inquiry, hearing or other proceeding by or before any Governmental Authority with respect to any such Environmental Condition, Release or presence of Hazardous Substances.
"Repair" means, with respect to any Damaged Portion or Testing Defect, the repair or restoration of the Damaged Portion or Testing Defect to good working order in accordance with Good Industry Practices, including with respect to any engineering, design, procurement or installation performed by or for Seller or its Affiliates in connection with such repair or restoration. The term "repair or restoration" (and similar terms) shall be broadly construed, and shall include or allow for the replacement of all or any portion of the Damaged Portion or Testing Defect.
"Representation and Warranty Insurance Policy" means, each of (i) the Buyer-Side Representation and Warranties Insurance Policy, in the form attached to the Binder Agreement entered into, on or about the Effective Date, by and between AIG Specialty Insurance Company and PB1 Purchaser, (ii) the Buyer-Side Representation and Warranties Insurance Policy, in the form attached to the Binder Agreement entered into, on or about the Effective Date, by and between AIG Specialty Insurance Company and PB2 Purchaser, (iii) the Buyer-Side Representation and Warranties Insurance Policy, in the form attached to the Binder Agreement entered into, on or about the Effective Date, by and between AIG Specialty Insurance





Company and PB3 Purchaser and (iv) the Buyer-Side Representation and Warranties Insurance Policy, in the form attached to the Binder Agreement entered into, on or about the Effective Date, by and between AIG Specialty Insurance Company and PB4 Purchaser; collectively, the "Representation and Warranty Insurance Policies."
"Representatives" means, as to any Person, its officers, directors, employees, agents, partners, members, equity holders, counsel, accountants, financial advisers, investment bankers and consultants.
"Resolution Period" means the period ending thirty (30) days following receipt by an Indemnitee of a written notice from an Indemnitor stating that it disputes all or any portion of a claim set forth in a Notice of Third Party Claim or an Indemnity Notice.
"SEC" means the United States Securities and Exchange Commission.
"Section 2.22(b) Replacement" has the meaning set forth in Section 2.22(b).
"Section 2.22(c) Replacement" has the meaning set forth in Section 2.22(c).
"Seller" has the meaning set forth in the introductory paragraph of this Agreement.
"Seller Claims" has the meaning set forth in Section 9.5(a).
"Seller Condition Failure" means, on any date of determination, (i) the conditions in Section 8.3 (No Restraint) (the satisfaction of which shall, for purposes of determining whether a Seller Condition Failure exists, be determined on the basis of whether or not such preliminary or permanent Order is in effect at the end of the TP1 Closing Delay Period or, if there is a TP2 Closing Delay Period, the end of the TP2 Closing Delay Period), Section 8.4(a) (Regulatory Approvals and Consents) or Section 8.4(b) (Seller's Required Consents) have not been satisfied or waived by Seller in its sole and absolute discretion, (ii) Seller has not satisfied Seller's requirements in Section 7.1 (Agreement Compliance), Section 7.5 (Representations and Warranties), Section 7.6 (Officer's Certificate) and Section 7.7(h) (Receipt of Seller's Required Consents) necessary for the Purchasers' conditions to Closing set forth therein to be satisfied or (iii) to the extent applicable, if each Project Purchaser has the right to terminate this Agreement pursuant to Section 6.7(k)(i) or Section 6.7(k)(ii).
"Seller Group" has the meaning set forth in Section 9.5(a).
"Seller PB1 Purchaser Claims" has the meaning set forth in Section 9.5(a).
"Seller PB2 Purchaser Claims" has the meaning set forth in Section 9.6(a).
"Seller PB3 Purchaser Claims" has the meaning set forth in Section 9.7(a).
"Seller PB4 Purchaser Claims" has the meaning set forth in Section 9.8(a).
"Seller's Consents" means the notices to or Consents of any Person other than a Governmental Authority that are required to be made or obtained by or on behalf of Seller or any of its Affiliates prior to the Closing in order to avoid the violation or breach of, or the default under, or the creation of an Encumbrance on the Purchased Assets pursuant to, any Law or any Purchased Contract or Purchased License to which Seller or any of its Affiliates is a party or to which any of the Purchased Assets are subject. Seller's Consents are specified in Part I of Schedule 4.3.
"Seller's Regulatory Approvals" means the notices to, applications or other filings with or Consents of or from any Governmental Authority that are necessary for Seller to consummate the Transactions and to be made or obtained by or on behalf of Seller prior to the Closing as specified in Part II of Schedule 4.3.
"Seller's Required Consents" means the Seller's Consents marked with an asterisk on Part I of Schedule 4.3.
SERC” means the SERC Reliability Corporation.
"Survey" has the meaning set forth in Section 6.6(a)(iii).
"Target Closing Date" has the meaning set forth in Section 6.7(c).
"Tax" means any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, carbon, Btu, fuel, environmental, customs duties, tariff, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property (including assessments, fees or other charges based on the use or ownership of real property, Property Tax, and ad valorem tax), personal property, transactional, sales, use,





transfer, registration, value added, alternative or add-on minimum, estimated or other tax of any kind whatsoever, including any interest, penalty or addition thereto, whether disputed or not, including any item for which liability arises as a transferee or secondary liability in respect to any tax (whether imposed by Law, contractual agreement or otherwise), and any liability in respect of any tax as a result of being a member of any affiliated, consolidated, combined, unitary or similar group.
"Tax Return" means any return, report, information return, declaration, claim for refund or supporting information, required to be supplied to any Governmental Authority responsible or other document, together with all amendments and supplements thereto, including all related for the administration of Laws governing Taxes, including information returns or reports with respect to backup withholding and other payments to third parties.
"Taxable Project Personal Property" means all property subject to ad valorem property Tax that is not Project Real Property.
"Termination Order" has the meaning set forth in Section 10.1(c)(i).
"Testing Defect" has the meaning set forth in Section 6.7(g).
"Testing Party" means, with respect to each Initial Power Block Performance Test for each Power Block, Seller and, with respect to any other Power Block Performance Tests, the Party causing the Power Block Performance Test to be performed pursuant to Section 6.7.
"Testing Repair" has the meaning set forth in Section 6.7(g)(i).
"Third Party Claim" means a claim, demand or Action instituted or threatened in writing by any Person, including for the costs of conducting Remediation or seeking an Order or demanding that a Person undertake Remediation, other than one made or threatened by a member of the Seller Group, on the one hand, against a member of the PB1 Purchaser Group, the PB2 Purchaser Group, the PB3 Purchaser Group or the PB4 Purchaser Group, on the other hand, or by a member of the PB1 Purchaser Group, the PB2 Purchaser Group, the PB3 Purchaser Group or the PB4 Purchaser Group, on the one hand, against a member of the Seller Group, on the other hand.
"Title Commitments" has the meaning set forth in Section 6.6(a)(i).
"Title Insurer" means First American Title Insurance Company.
"Title Objection" has the meaning set forth in Section 6.6(c).
"Title Policies" has the meaning set forth in Section 7.8(d).
"Title Review Period" has the meaning set forth in Section 6.6(c).
"Toll Switch Date" has the meaning set forth in Section 2.23.
"Tolled Power Block" has the meaning set forth in Section 2.23.
Tolled Power Block Purchaser” means, in the event the EAI Tolling Agreement will be assigned in connection with the Closing by Seller to the Project Purchaser of the Tolled Power Block, the Project Purchaser of the Tolled Power Block.
"TP1 Closing Delay Escalator" means, with respect to each Project Purchaser, (i) if such Project Purchaser's applicable Trigger Day has occurred prior to the expiration of Transaction Period 1, $0 and (ii) otherwise, the product of (A) Thirty Million Five Hundred Thousand Dollars ($30,500,000) and (B) a fraction where the numerator is one (1) and the denominator is the number of Project Purchasers whose applicable Trigger Day has occurred after the expiration of Transaction Period 1 and on or before the end of such Project Purchasers applicable TP1 Closing Delay Period.
"TP1 Closing Delay Period (PB1)" means a period equal to the number of days from the expiration of Transaction Period 1 through the Trigger Day (PB1) (regardless of whether the Trigger Day (PB1) occurs in Transaction Period 1 or Transaction Period 2); it being understood and agreed that if the Trigger Day (PB1) occurs during Transaction Period 1, there shall be no TP1 Closing Delay Period (PB1) and no TP2 Closing Delay Period (PB1).
"TP1 Closing Delay Period (PB2)" means a period equal to the number of days from the expiration of Transaction Period 1 through the Trigger Day (PB2) (regardless of whether the Trigger Day (PB2) occurs in Transaction Period 1 or Transaction Period 2); it being understood and agreed that if the





Trigger Day (PB2) occurs during Transaction Period 1, there shall be no TP1 Closing Delay Period (PB2) and no TP2 Closing Delay Period (PB2).
"TP1 Closing Delay Period (PB3)" means a period equal to the number of days from the expiration of Transaction Period 1 through the Trigger Day (PB3) (regardless of whether the Trigger Day (PB3) occurs in Transaction Period 1 or Transaction Period 2); it being understood and agreed that if the Trigger Day (PB3) occurs during Transaction Period 1, there shall be no TP1 Closing Delay Period (PB3) and no TP2 Closing Delay Period (PB3).
"TP1 Closing Delay Period (PB4)" means a period equal to the number of days from the expiration of Transaction Period 1 through the Trigger Day (PB4) (regardless of whether the Trigger Day (PB4) occurs in Transaction Period 1 or Transaction Period 2); it being understood and agreed that if the Trigger Day (PB4) occurs during Transaction Period 1, there shall be no TP1 Closing Delay Period (PB4) and no TP2 Closing Delay Period (PB4).
"TP2 Closing Delay Escalator" means, with respect to each Project Purchaser, (i) if such Project Purchaser's applicable Trigger Day has occurred (A) prior to the expiration of Transaction Period 1 or (B) after the expiration of Transaction Period 1 and on or before the end of the TP1 Closing Delay Period applicable to such Project Purchaser, $0 and (ii) otherwise, the product of (A) Thirty Million Five Hundred Thousand Dollars ($30,500,000) and (B) a fraction where the numerator is one (1) and the denominator is the number of Project Purchasers whose applicable Trigger Day has occurred, after the expiration of Transaction Period 2 and on or before the end of such Project Purchasers applicable TP2 Closing Delay Period.
"TP2 Closing Delay Period (PB1)" means a period equal to the number of days from the expiration of Transaction Period 2 through the Trigger Day (PB1); it being understood and agreed that if the Trigger Day (PB1) occurs during Transaction Period 2, there shall be no TP2 Closing Delay Period (PB1) but there shall be a TP1 Closing Delay Period (PB1).
"TP2 Closing Delay Period (PB2)" means a period equal to the number of days from the expiration of Transaction Period 2 through the Trigger Day (PB2); it being understood and agreed that if the Trigger Day (PB2) occurs during Transaction Period 2, there shall be no TP2 Closing Delay Period (PB2) but there shall be a TP1 Closing Delay Period (PB2).
"TP2 Closing Delay Period (PB3)" means a period equal to the number of days from the expiration of Transaction Period 2 through the Trigger Day (PB3); it being understood and agreed that if the Trigger Day (PB3) occurs during Transaction Period 2, there shall be no TP2 Closing Delay Period (PB3) but there shall be a TP1 Closing Delay Period (PB3).
"TP2 Closing Delay Period (PB4)" means a period equal to the number of days from the expiration of Transaction Period 2 through the Trigger Day (PB4); it being understood and agreed that if the Trigger Day (PB4) occurs during Transaction Period 2, there shall be no TP2 Closing Delay Period (PB4) but there shall be a TP1 Closing Delay Period (PB4).
"Transaction Period 1" means the period from the Effective Date through April 30, 2016.
"Transaction Period 2" means the period beginning on May 1, 2016 through August 31, 2016.
"Transactions" means the transactions contemplated by this Agreement and the Ancillary Agreements.
"Transfer Tax" means any sales, gross receipts, transfer, transaction, excise, value added, use, real property transfer, stamp, or other similar Tax, including any related penalties, interest and additions thereto.
"Trans-Union" means Trans-Union Interstate Pipeline, L.P., a limited partnership organized and existing under the laws of the State of Delaware.
"Trans-Union Pipeline" means that certain approximately 42-mile, 30-inch diameter high pressure natural gas interstate pipeline, with a capacity of approximately 440,000 MMBtu/day, that directly interconnects with and supplies natural gas to the Project and also directly connects to and receives gas from Texas Gas Transmission LLC and Regency near Sharon, Claiborne Parish, Louisiana.





"Trigger Day (PB1)" means the day identified in a written notice from PB1 Purchaser to Seller as the day on which PB1 Purchaser in its sole and absolute discretion has determined that the condition set forth in Section 7.4(a) with respect to PB1 Purchaser has been satisfied or waived by PB1 Purchaser; provided that the Trigger Day (PB1) may be no more than one (1) Business Day prior to the date that such notice is received by Seller.
"Trigger Day (PB2)" means the day identified in a written notice from PB2 Purchaser to Seller as the day on which PB2 Purchaser in its sole and absolute discretion has determined that the condition set forth in Section 7.4(a) with respect to PB2 Purchaser has been satisfied or waived by PB1 Purchaser; provided that the Trigger Day (PB2) may be no more than one (1) Business Day prior to the date that such notice is received by Seller.
"Trigger Day (PB3)" means the day identified in a written notice from PB3 Purchaser to Seller as the day on which PB3 Purchaser in its sole and absolute discretion has determined that the condition set forth in Section 7.4(a) with respect to PB3 Purchaser has been satisfied or waived by PB3 Purchaser; provided that the Trigger Day (PB3) may be no more than one (1) Business Day prior to the date that such notice is received by Seller.
"Trigger Day (PB4)" means the day identified in a written notice from PB4 Purchaser to Seller as the day on which PB4 Purchaser in its sole and absolute discretion has determined that the condition set forth in Section 7.4(a) with respect to PB4 Purchaser has been satisfied or waived by PB4 Purchaser; provided that the Trigger Day (PB4) may be no more than one (1) Business Day prior to the date that such notice is received by Seller.
"Uncapped PB1 Purchaser Representations" has the meaning set forth in Section 9.5(b).
"Uncapped PB2 Purchaser Representations" has the meaning set forth in Section 9.6(b).
"Uncapped PB3 Purchaser Representations" has the meaning set forth in Section 9.5(b).
"Uncapped PB4 Purchaser Representations" has the meaning set forth in Section 9.8(b).
"Uncapped Seller Representations" has the meaning set forth in Section 9.1(b).
"Undivided Pro Rata Percentage" means (i) with respect to PB1 Purchaser, twenty-five percent (25%), (ii) with respect to PB2 Purchaser, twenty-five percent (25%), (iii) with respect to PB3 Purchaser, twenty-five percent (25%) and (iv) with respect to PB4 Purchaser, twenty-five percent (25%).
"Union Power Employee Company" means Union Power Employee Co. LLC.
"WARN Act" means the Worker Adjustment and Retraining Notification Act of 1988.
Section 1.2. Certain Interpretive Matters
. In this Agreement, unless the context otherwise requires or this Agreement otherwise specifies:
(a)the singular number includes the plural number and vice versa;
(b)reference to any Person includes such Person's successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity;
(c)reference to any gender includes each other gender;
(d)reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof;
(e)reference to any Article, Section, Schedule or Exhibit means such Article, Section, Schedule or Exhibit of or to this Agreement, and references in any Article, Section, Schedule, Exhibit or definition to any clause means such clause of such Article, Section, Schedule, Exhibit or definition unless otherwise specified;
(f)any accounting term used and not otherwise defined in this Agreement or any Ancillary Agreement has the meaning assigned to such term in accordance with GAAP;





(g)"hereunder," "hereof," "hereto" and words of similar import are references to this Agreement as a whole and not to any particular Section or other provision hereof or thereof;
(h)"including" (and with correlative meaning "include") means including without limiting the generality of any description preceding such term;
(i)relative to the determination of any period of time, "from" means "from and including," "to" means "to but excluding" and "through" means "through and including;"
(j)reference to any Law (including statutes and ordinances) means such Law as amended, modified codified or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder;
(k)all calculations and computations pursuant to this Agreement shall be carried and rounded to the nearest two (2) decimal places;
(l)reference to any "day," "month" or "year" shall be to a calendar day, month or year;
(m)this Agreement and any documents or instruments delivered pursuant hereto shall be construed without regard to the identity of the Person who drafted the various provisions of the same and any rule of construction that a document is to be construed against the drafting party shall not be applicable either to this Agreement or such other documents and instruments;
(n)the captions of the various Articles, Sections, Exhibits and Schedules of this Agreement have been inserted only for convenience of reference and do not modify, explain, enlarge or restrict any of the provisions of this Agreement;
(o)all amounts in this Agreement are stated and shall be paid in United States currency;
(p)in the event of any conflict that cannot be reasonably reconciled between the provisions of this Agreement and those of any Exhibit or Schedule, the provisions of this Agreement shall control and prevail;
(q)for the avoidance of doubt, if under this Agreement a Purchaser (a "successor Purchaser") succeeds to the rights and obligations of another Purchaser (a "replaced Purchaser") with respect to a Power Block and related Common Facilities, then, upon such succession, the Purchasers' Regulatory Approvals of the replaced Purchaser shall be the Purchasers' Regulatory Approvals of the successor Purchaser (and the replaced Purchaser's Regulatory Approvals shall no longer be a condition to or relevant for purposes of this Agreement), the Purchasers' Consents of the replaced Purchaser shall be the Purchasers' Consents of the successor Purchaser (and the replaced Purchaser's Consents shall no longer be a condition to or relevant for purposes of this Agreement), and all other terms and conditions of this Agreement that are specific to or based upon the identity of the replaced Purchaser shall be specific to or based upon the identity of the successor Purchaser, modified as appropriate to reflect the rights and obligations to which such successor Purchaser is succeeding;
(r)a reference in this Agreement to "notice" or "consent" shall be deemed to mean "written notice" or "written consent", as applicable, and the terms "written notice", "written consent", "notice" and "consent" shall have no distinction for purposes of the construction of this Agreement ; and
(s)a reference in this Agreement to "made available" (other than in the definition of "Employee Plan", Section 6.10(e) or Section 7.15) shall be deemed to means that the underlying item has been posted to the Intralinks electronic workspace with the project name "Entegra Data Room" or transmitted via electronic mail or a nationally recognized overnight courier service.


ARTICLE II.
PURCHASE AND SALE
Section 2.1.PB1 Assets
. Upon the terms and subject to the conditions contained in this Agreement, at the Closing Seller, or, in the case of the IDA Bond Property, either Seller or Union County, Arkansas, as applicable, shall sell, convey, assign, transfer and deliver to PB1 Purchaser, free and clear of all Encumbrances, other than





Permitted Encumbrances, and PB1 Purchaser shall purchase and acquire from (x) Seller, all of the right, title and interest of Seller in and to the assets, interests, properties, rights, licenses and contracts, of every kind, character and nature, whether real, personal, or mixed, fixed, contingent or otherwise, tangible or intangible, known or unknown, accrued or unaccrued, or carried on or off the books and records of Seller, and wherever situated, specifically relating to PB1 or the PB1 Business as in existence on the Effective Date and any additions thereto on or before the Closing Date, and (y) with respect to the IDA Bond Property only, Union County, Arkansas, if applicable, but in each case excluding the PB1 Excluded Assets and, for the avoidance of doubt, the PB2 Purchased Assets, the PB3 Purchased Assets, the PB4 Purchased Assets and the Common Facilities Assets (collectively, the "PB1 Assets"). The PB1 Assets include:
(a)(i) all parcels of real property and fee simple interests identified in the drawing attached as Part I of Schedule 2.1(a), (ii) all appurtenances thereto, together with all buildings, fixtures, component parts, other constructions and other improvements thereon and thereto, including all construction work in progress (the foregoing subparts (i) and (ii) collectively, the "PB1 Owned Real Property") and (iii) each parcel of real property subject to the IDA Lease Agreement and identified in the drawing attached as Part II of Schedule 2.1(a) (the "PB1 IDA Bond Real Property");
(b)all real property leasehold estates of Seller (other than the PB1 IDA Bond Real Property) identified in the drawing attached as Schedule 2.1(b), and all appurtenances thereto, together with all buildings, leasehold improvements, fixtures, component parts, other constructions and other improvements thereon and thereto, including all construction work in progress (collectively, the "PB1 Leased Real Property");
(c)all licenses, rights-of-way, servitudes, easements and other similar real property interests appurtenant to or specifically benefiting the PB1 Owned Real Property, the PB1 Leased Real Property or the PB1 IDA Bond Real Property and easements in gross, held by Seller as well as the right, by way of license, right-of-way, servitude, easement, or similar right or instrument, to permit access to PB1 or to locate or operate the PB1 Business, including those described in Schedule 2.1(c) (collectively, the "PB1 Easements");
(d)all tangible personal property and other property (other than the PB1 IDA Bond Real Property) specifically related to PB1 and subject to the IDA Lease Agreement (the "PB1 IDA Bond Other Property"), all machinery (mobile or otherwise), equipment, vehicles, pumps, fittings, tools, furniture, furnishings, meters and metering equipment, PB1 Leased Personal Property, PB1 Purchased Major Maintenance Spares and other tangible movable property that is located on the PB1 Real Property and specifically related to PB1, or acquired by Seller specifically for use or consumption at PB1, that is not PB1 Inventory, including such assets that are temporarily off-site for repair or other purposes, such assets being shipped to Seller or any Affiliate of Seller, and assets housed or kept at any Off-Site Real Property, and including the property listed or described in Schedule 2.1(d) (collectively, the "PB1 Tangible Personal Property");
(e)all Inventory dedicated for use or consumption specifically for PB1, including the Inventory listed or described in Schedule 2.1(e) (collectively, the "PB1 Inventory");
(f)subject to Section 2.2(c) and Section 6.5(c), all Contracts (i) listed or described in Schedule 2.1(f) (including all Contracts added to Schedule 2.1(f) between the Effective Date and the Closing Date with the written consent of PB1 Purchaser) and (ii) entered into by Seller after the Effective Date and prior to the Closing Date in the ordinary course of business consistent with past practices and added to Schedule 2.1(f) by Seller (x) under which the aggregate payments by PB1 Purchaser under such Contract will be $500,000 or less; (y) that are terminable on thirty (30)-days' notice or less without penalty and under which PB1 Purchaser would not be required or reasonably expected to spend more than $100,000 in any such thirty (30)-day notice period or (z) pursuant to which Seller purchases Inventory that replaces PB1 Inventory used by Seller between the Effective Date and the Closing in the ordinary course of business consistent with past practices and in accordance with the terms of this Agreement, it being understood that,





for purposes of clauses (ii)(x), (y) and (z), each individual purchase order shall be deemed a Contract (as opposed to the corresponding master agreement) and that the aggregate amount of the payment obligations of PB1 Purchaser under the Contracts described in and permitted under clauses (ii)(x), (y) and (z) above shall not exceed $3,500,000 (collectively, the "PB1 Contracts");
(g)subject to Section 6.5(c), all Permits held or filed by Seller specifically in connection with the ownership, lease, use, operation or maintenance of PB1 or the PB1 Business, including those listed or described in Schedule 2.1(g) (collectively, the "PB1 Permits") and all pending applications for any new Permit that would be a PB1 Permit or renewal, extension or modification of any PB1 Permit, in each case to the extent legally transferable by sale;
(h)all books, records, documents, drawings, reports, operating data, operating safety and maintenance manuals, inspection reports, engineering design plans, blueprints, specifications and procedures and similar items specifically relating to PB1, any of the other PB1 Assets or the PB1 Business and owned by, or in the care, custody or control of, Seller (in each case, (x) to the extent such transfer is not prohibited by Law and (y) absent any present restriction on such transfer), including (to the extent so specifically related) (i) Environmental logs, data sheets, studies, reports, and records, including correspondence received by or sent to Governmental Authorities; (ii)  records and files relating to any Permit, any pending application for a new Permit or any renewal, extension or modification of any Permit; (iii) emergency, accident, incident, safety and inspection reports and records, including reports submitted to the U.S. Department of Labor's Occupational Safety & Health Administration, to the extent resulting in or requiring physical changes to PB1 and not protected by a legal privilege benefiting Seller or prohibited by Law from being transferred to PB1 Purchaser; (iv) operating, maintenance, and repair logs, data sheets, reports and records; (v) vendor lists and vendor purchase orders and records; (vi) engineering design and construction drawings and plans, including as-built drawings, blueprints, and specifications; (vii) records, plans, reports, and drawings specifically relating to the PB1 Real Property; (viii) drawings in AutoCAD or similar programs, OEM manuals, and other existing information and data (in electronic form where applicable) necessary to enable parallel migration to PB1 Purchaser's information systems (provided, that Seller shall not be responsible for ensuring that any such records or information can be so migrated); and (ix) records of or relating to the registration, use, offering, scheduling, operation, registration, modeling, and testing of or disputes involving PB1 in MISO, and, in each case, (A) the right to use and duplicate the foregoing and (B) in a format and on a medium, if any, currently produced by Seller (including originals to the extent retained in accordance with Seller's customary practice), it being understood and agreed that Seller may make and keep additional copies of any of the foregoing, subject to the Post-Closing Confidentiality Agreement, and shall use Commercially Reasonable Efforts to cause any such contractual restrictions on transfer to be waived or otherwise removed;
(i)subject to Section 6.5(c), all unexpired warranties, indemnities, and guarantees made or given by manufacturers, contractors, architects, engineers, consultants, vendors, suppliers and other third parties specifically relating to PB1 or any of the other PB1 Assets, including the warranties, indemnities and guarantees listed or described in Schedule 2.1(i) (but excluding any indemnities contained in PB1 Excluded Contracts), other than those described in Section 2.2(m) (collectively, the "PB1 Warranties");
(j)all claims or causes of action of Seller against third parties related to PB1 or the PB1 Business, including indemnification claims, contribution claims, warranty claims, and claims for refunds, prepayments, offsets, recoupment, insurance proceeds, condemnation awards, judgments and the like, to the extent arising out of or relating to the period after the Closing;
(k)all advance payments, prepayments, prepaid expenses, deposits or the like (other than Proratable Items, the treatment of which is addressed in Section 3.6), in each case to the extent specifically related to PB1 or the PB1 Business and made by or on behalf of Seller before the Closing Date and applicable to periods on or after the Closing Date, including the items listed or described in Schedule 2.1(k) (collectively, the "PB1 Prepaid Items");
(l)subject to Section 6.5(c), all unapplied accounts, rights, or allowances involving Emission Allowances, if any, that have been or will be granted or allocated to, or purchased for, (i) PB1,





(ii) the PB1 Business or (iii) the entire Project (collectively, the "PB1 Emission Allowances"); provided, however, that, in the case of the foregoing sub-clause (iii), only the portion of such Emission Allowances allocable to PB1 or the PB1 Business shall constitute PB1 Emission Allowances;
(m)all Intellectual Property of Seller used specifically with respect to or in connection with PB1, other than Intellectual Property Rights retained by Seller pursuant to Project Excluded Contracts or Section 2.2(h) (and, subject to Section 6.17, excluding, for the avoidance of doubt, any right to use the name of Seller or any related or similar trade name, trademark, service mark, corporate name, corporate logo or any part, derivative or combination thereof) (collectively, the "PB1 Intellectual Property Rights"); and
(n)all rights and benefits associated with the capacity of PB1, including all capacity credits (such as MISO zonal resource credits) and similar rights or benefits, all electric energy associated with and provided or to be provided from such capacity and other electric products available from or associated with such capacity, in each case, accruing with respect to the period after the Closing, subject to the EAI Tolling Agreement, if PB1 or PB1 Purchaser is subject to the EAI Tolling Agreement as of the Closing.
Section 2.2. PB1 Excluded Assets
. Nothing in this Agreement shall constitute or be construed as conferring on PB1 Purchaser, and PB1 Purchaser shall not be entitled or required to purchase or acquire, any right, title or interest in, to or under the following assets, interests, properties, rights, licenses or Contracts (collectively, the "PB1 Excluded Assets") and such assets, interests, properties, rights, licenses and Contracts shall be excluded from and shall not constitute PB1 Assets:
(o)any PB1 Tangible Personal Property or PB1 Inventory consumed or disposed of prior to the Closing in the ordinary course of business consistent with the provisions of this Agreement, including Section 6.3, any Ancillary Agreement in effect or any PPA;
(p)all of the assets, properties, rights or interests owned, used, occupied or held by or for the benefit of Seller or any Affiliate of Seller that are listed or described in Schedule 2.2(b);
(q)all of the rights and interests of Seller and any Affiliate of Seller in, to, under or pursuant to any Contract listed or described in Schedule 2.2(c) (collectively, the "PB1 Excluded Contracts");
(r)(i) the Employee Plans, any funds and property held in trust or any other funding vehicle pursuant to, or any assets set aside in respect of, any Employee Plan, all of the rights of any member of the Entegra Group under any of the foregoing (and in particular, but without limitation, neither PB1 Purchaser nor any Affiliate of any PB1 Purchaser shall be deemed to have assumed or acquired any right to any Employee Plan by reason of any provision of this Agreement), and any data and records (or copies thereof) required to administer any Employee Plan or other benefits of any present, former or future Employee of any member of the Entegra Group (and any qualified dependent or beneficiary of any such Person) and (ii) any “employee benefit plan,” as defined in Section 3(3) of ERISA, maintained by Employer’s Alliance LLC (d/b/a Fortune Business Solutions), any funds and property held in trust or any other funding vehicle pursuant to, or any assets set aside in respect of, any such plan, all of the rights of any Person under any of the foregoing and any data and records (or copies thereof) required to administer any such plan or other benefits of any present, former or future Employee of any Person (and any qualified dependent or beneficiary of any such Person);
(s)except to the extent constituting PB1 Assets under Section 2.1(h), the books and records of Seller and any Affiliate of Seller, including Seller's minute books, limited partnership interest books, ledger and company seal;
(t)cash, cash equivalents, bank deposits, bank accounts, securities accounts, commodities accounts, accounts and notes receivable, trade or otherwise, other than the PB1 Prepaid Items, of Seller or any Affiliate of Seller;
(u)certificates of deposit, shares of stock, securities, bonds, debentures, evidences of indebtedness, and interests in joint ventures, partnerships, limited liability companies and other entities, in any such case owned (beneficially or of record) or held by Seller or any Affiliate of Seller;





(v)all Intellectual Property Rights listed or described in Schedule 2.2(h);
(w)all rights and remedies of Seller and any Affiliate of Seller arising under this Agreement, the Ancillary Agreements or any other instrument or document executed and delivered pursuant to the terms of this Agreement or any Ancillary Agreement (including rights to the Purchase Price);
(x)all refunds or credits, if any, of Taxes due to or from Seller or any Affiliate of Seller, to the extent provided hereunder;
(y)the claims or causes of action against third parties to the extent relating to or arising under (i) the Pre-Closing Period (except to the extent expressly provided otherwise herein or in any Ancillary Agreement), (ii) any PB1 Excluded Contract or (iii) the Intellectual Property Rights listed or described in Schedule 2.2(h);
(z)except as set forth on Schedule 2.2(l), all agreements, arrangements, commitments and other Contracts of any nature in respect of any intercompany transaction between Seller, on the one hand, and any Affiliate of Seller, on the other hand, whether or not such transaction relates to any contribution to capital, loan, the provision of goods or services, tax sharing arrangements, payment arrangements, intercompany advances, charges or balances, or the like;
(aa)all unexpired warranties, indemnities, and guarantees made or given by manufacturers, contractors, architects, engineers, consultants, vendors, suppliers and other third parties in connection with or relating to the Project to the extent relating to (i) the Pre-Closing Period, (ii) PB1 Major Maintenance Spares that are not PB1 Purchased Major Maintenance Spares, or (iii) a Project Excluded Contract or the Intellectual Property Rights listed or described in Schedule 2.2(h);
(ab)PB1 Major Maintenance Spares that are not PB1 Purchased Major Maintenance Spares;
(ac)all rights and benefits associated with the capacity of PB1, including all capacity credits (such as MISO zonal resource credits) and similar rights or benefits, all electric energy associated with and provided or to be provided from such capacity and other electric products available from or associated with such capacity, in each case, accruing with respect to the period prior to the Closing; and
(ad)any of the Purchased Assets (other than the PB1 Assets) or the Excluded Assets (other than the PB1 Assets).
Section 2.3 PB1 Assumed Liabilities
. Other than any of the following liabilities that would not have arisen but for a breach by Seller of its representations set forth in Article IV or any of its covenants set forth in Article VI that has given rise to a PB1 Purchaser Claim (except to the extent resulting from any violation, breach or default by, or waiver or extension given by or to, PB1 Purchaser), upon the Closing, PB1 Purchaser shall assume, and shall thereafter pay, perform and discharge as and when due, the following, and only the following, liabilities and obligations (collectively, the "PB1 Assumed Liabilities"):
(ae)any liability or obligation arising out of or related to the performance or non-performance by PB1 Purchaser or any Affiliate of PB1 Purchaser after the Closing of any PB1 Contract, Purchased License or PB1 Permit, including any breach by PB1 Purchaser or any Affiliate of PB1 Purchaser of, default by PB1 Purchaser or any Affiliate of PB1 Purchaser under, or waiver or extension given by or to PB1 Purchaser or any Affiliate of PB1 Purchaser with respect to the performance of, any covenant, representation, term or other provision of any of the PB1 Contracts, Purchased Licenses or PB1 Permits, to the extent not resulting from any violation, breach or default by, or waiver or extension given by or to, Seller or any Affiliate of Seller;
(af)any liability or obligation in respect of any cost that is the responsibility of PB1 Purchaser under this Agreement or any Ancillary Agreement, including the portion of any Proratable Item for which PB1 Purchaser is responsible under Section 3.6;
(ag)any liability or obligation in respect of any Action in respect of the PB1 Assets to the extent arising out of events, facts or circumstances (i) first occurring after the Closing or (ii) occurring after





the Closing to the extent any such liability or obligation existed as of the Closing Date and is exacerbated by the acts or omissions of any Person other than Seller or any of its Affiliates or their respective Representatives;
(ah)any liability or obligation arising out of or related to or associated with (i) PB1 Purchaser's employment of Project Employees hired by PB1 Purchaser to the extent arising on or after any such Project Employee's employment by PB1 Purchaser or (ii) any violation of Law by PB1 Purchaser in connection with its hiring process for any Project Employees, regardless of when such liability or obligation arises (and, for the avoidance of doubt, to the extent the same are not derivative of any liability or obligation of any member of the Entegra Group);
(ai)any liability or obligation (i) with respect to any Tax for which PB1 Purchaser is responsible or liable under Section 6.2 or Section 6.10, (ii) with respect to any Tax attributable or allocable to the ownership, lease, possession, use, operation, repair, maintenance, or replacement of any of the Purchased Assets during any period or portion thereof ending on or after the Closing (or any other assets, properties, rights or interests associated, at any time after the Closing, with the Business), except for Taxes for which Seller is liable under Section 6.2 or Section 6.10, or (iii) for which PB1 Purchaser is primarily liable (as opposed to another Purchaser) under any Contract the primary purpose of which relates to Taxes; and
(aj)any liability or obligation relating to, based in whole or in part on any event, fact, circumstance or condition (or set of events, facts, circumstances or conditions) (x) first occurring after the Closing or (y) occurring after the Closing to the extent any such liability or obligation existed as of the Closing Date and is exacerbated by the acts or omissions of any Person other than Seller or any of its Affiliates or their respective Representatives and, in either case, arising out of the financing, ownership, lease, possession, use, operation, repair, maintenance, or replacement of the Project or any of the Purchased Assets after the Closing, including (i) the delivery, receipt, movement, use, sale, conveyance, transfer, removal or disposal of any fuel, power (including any ancillary service), water, waste or any other Purchased Asset (or any Excluded Asset, including former assets) to or from PB1 at any time after the Closing, (ii) compliance or non-compliance with Laws (including Environmental Laws) or Permits after the Closing, including fines, penalties, charges, and costs, and interest thereon, (iii) any Environmental Condition, Environmental Claim or Environmental Liability in each case arising from conditions existing or events, facts or circumstances (A) first occurring after the Closing or (B) occurring after the Closing to the extent any such Environmental Condition, Environmental Claim or Environmental Liability that existed as of the Closing Date and is exacerbated by any act by or omission of any Person other than Seller or any of its Affiliates or their respective Representatives and (iv) any liability or obligation representing indebtedness for money borrowed (or any refinancing thereof) in respect of PB1 incurred after the Closing.
Section 2.4 PB1 Excluded Liabilities
. Except for the PB1 Assumed Liabilities and other than to the extent constituting an Assumed Liability for a Purchaser other than PB1 Purchaser, Seller shall retain, and PB1 Purchaser shall not assume or be obligated to pay, perform or otherwise discharge or be responsible or liable pursuant to this Agreement or otherwise with respect to, any liability or obligation of Seller or any Affiliate of Seller, whether or not of, associated with, or arising from any of the Purchased Assets, and whether fixed, contingent or otherwise, known or unknown, accrued or unaccrued, carried on or off of the books and records of Seller or any Affiliate of Seller, tangible or intangible (collectively, the "PB1 Excluded Liabilities"), including:
(ak)any liability or obligation to the extent relating to, based in whole or in part on any event, fact, circumstance or condition (or set of events, facts, circumstances or conditions) occurring or existing at any time prior to the Closing and to the extent arising out of any of the following (in each case, regardless of when any claims arising therefrom or relating thereto mature or are asserted): (i) the financing, ownership, lease, possession, use, operation, repair, maintenance, or replacement of the Project or any of the Purchased Assets, including (A) the delivery, receipt,





movement, use, sale, conveyance, transfer, removal or disposal of any fuel, power (including any ancillary service), water, waste or any other Purchased Asset (or any Excluded Asset, including former assets) to or from the Project, (B) compliance or non-compliance with Laws (including Environmental Laws) or Permits, including fines, penalties, charges, and costs, and interest thereon, (C) any Environmental Condition, Environmental Claim or Environmental Liability and (D) any obligation or liability representing indebtedness for money borrowed (or any refinancing thereof) or (ii) any other business, undertaking, or activity of Seller, any Affiliate of Seller, or any present or former owner (including any Predecessor-in-Interest) or operator of the Project or any of the other Purchased Assets;
(al)any liability or obligation to the extent arising out of or related to the performance or non-performance by Seller or any Affiliate of Seller prior to the Closing (in each case, regardless of when any claims arising therefrom or relating thereto mature or are asserted) of any Contract or Permit, including any breach by Seller or any Affiliate of Seller of, default by Seller or any Affiliate of Seller under, or waiver or extension given by or to Seller or any Affiliate of Seller with respect to the performance of, any covenant, representation, term or other provision of any of the Purchased Contracts, Purchased Licenses or Purchased Permits and that would have been, but for such breach, default, waiver or extension, paid, performed or otherwise discharged prior to the Closing;
(am)except as otherwise provided in Section 6.5(a), any liability or obligation of Seller or any Affiliate of Seller to the extent incurred in connection with obtaining any Consent relating to the sale, conveyance, assignment, transfer or delivery of the Purchased Assets to Purchasers or the consummation of the Transactions hereunder;
(an)any liability or obligation of Seller or any Affiliate of Seller in respect of the pending or threatened Actions set forth (or that should have been set forth) in Schedule 4.6 and the facts and circumstances relating to such matters;
(ao)any liability or obligation (i) with respect to any Tax for which Seller or any Affiliate of Seller is responsible or liable under Section 6.2 or Section 6.10, (ii) with respect to any Tax attributable or allocable to the ownership, lease, possession, use, operation, repair, maintenance, or replacement of any of the Purchased Assets during any period or portion thereof ending prior to the Closing (regardless of when any claims arising therefrom or relating thereto mature or are asserted) (or any other assets, properties, rights or interests associated, at any time prior to the Closing, with the Business), except for Taxes for which PB1 Purchaser is liable under Section 6.2 or Section 6.10, or (iii) for which Seller or any Affiliate of Seller is primarily liable under any Contract the principal purpose of which relates to Taxes;
(ap)other than those liabilities or obligations to the extent created directly by the actions of PB1 Purchaser or any Affiliate of PB1 Purchaser (and, for the avoidance of doubt, that are not derivative of any liabilities or obligations of any member of the Entegra Group) or that otherwise specifically constitute Assumed Liabilities under Section 2.3(d), any liability or obligation to, or relating to or arising out of (i)(x) any Employee Plan or Contract; (y) compensation, severance benefits, vacation pay, continuation coverage, expenses, or any other similar type claim arising under Law relating to employment or service as a consultant or independent contractor during any period prior to the Closing or as a result of the consummation of the Transactions or (z) any Collective Bargaining Agreement or collective bargaining, labor or labor relations Law; or (ii) the service or employment (or termination thereof) of, any present, former or future Employee (at any time with respect to any such Person who does not become an employee of any Purchaser or Affiliate of any Purchaser in connection with the Transaction and, with respect to any such Person who does become an employee of any Purchaser or Affiliate of any Purchaser in connection with the Transactions, at any time prior to such individual's effective date of hire by any Purchaser or Affiliate of any Purchaser), consultant or independent contractor, or Representative of any member of the Entegra Group, or to any spouse, former spouse, child, dependent, or other beneficiary of such Person, including any liability or obligation related to, arising out of or with respect to (1) any event, fact, omission, circumstance, occurrence or exposure (or set of events, facts, omissions, circumstances, occurrences or exposures), in each case whenever any claims





arising therefrom or relating thereto mature or are asserted; (2) the withholding or payment of any federal, state or local income, employment, unemployment, or other Tax; (3) employment, compensation, wage and hour matters, equal employment opportunity, affirmative action, discrimination, retaliation, tort, or immigration and naturalization Law or any Law relating to employee benefits, employment discrimination, leave, accommodation, severance, labor relations, hiring or retention, safety, any employment contracts or agreements, unemployment, privacy, medical privacy, wages and hours of employees or any other terms or conditions of employment or any other employment-related matter or workplace issue, including COBRA; (4) any workers' compensation or any other employee health, accident, disability or safety claim; (5) any action (including any action taken in connection with the consummation of the Transactions) that is or could be construed as a plant closing or mass layoff under the WARN Act or any similar state law; or (6) any failure to properly classify any Employee as exempt or non-exempt or any individual as a consultant or independent contractor;
(aq)(i) the Employee Plans, any related trust or funding vehicle and any and all obligations, costs, expenses, claims and liabilities arising thereunder or in connection therewith, (ii) any “employee benefit plan,” as defined in Section 3(3) of ERISA, maintained by Employer’s Alliance LLC (d/b/a Fortune Business Solutions), any related trust or funding vehicle and any and all obligations, costs, expenses, claims and liabilities arising thereunder or in connection therewith and (iii) any Controlled Group Liabilities (together with the liabilities described in Section 2.4(f), the “PB1 Excluded Employee Liabilities”);
(ar)any liability or obligation in respect of any cost that is the responsibility of Seller or any Affiliate of Seller under this Agreement or any Ancillary Agreement, including the portion of any Proratable Item for which Seller is responsible under Section 3.6; and
(as)any liability or obligation to the extent relating to any Excluded Asset or other asset that is not a PB1 Asset and the ownership, operation and conduct of any business in connection therewith or therefrom.
Section 2.5 PB2 Assets
. Upon the terms and subject to the conditions contained in this Agreement, at the Closing Seller, or, in the case of the IDA Bond Property, either Seller or Union County, Arkansas, as applicable, shall sell, convey, assign, transfer and deliver to PB2 Purchaser, free and clear of all Encumbrances, other than Permitted Encumbrances, and PB2 Purchaser shall purchase and acquire from (x) Seller, all of the right, title and interest of Seller in and to the assets, interests, properties, rights, licenses and contracts, of every kind, character and nature, whether real, personal, or mixed, fixed, contingent or otherwise, tangible or intangible, known or unknown, accrued or unaccrued, or carried on or off the books and records of Seller, and wherever situated, specifically relating to PB2 or the PB2 Business as in existence on the Effective Date and any additions thereto on or before the Closing Date, and (y) with respect to the IDA Bond Property only, Union County, Arkansas, if applicable, but in each case excluding the PB2 Excluded Assets and, for the avoidance of doubt, the PB1 Purchased Assets, the PB3 Purchased Assets, the PB4 Purchased Assets and the Common Facilities Assets (collectively, the "PB2 Assets"). The PB2 Assets include:
(at)(i) all parcels of real property and fee simple interests identified in the drawing attached as Part I of Schedule 2.5(a), (ii) all appurtenances thereto, together with all buildings, fixtures, component parts, other constructions and other improvements thereon and thereto, including all construction work in progress (the foregoing subparts (i) and (ii) collectively, the "PB2 Owned Real Property") and (iii) each parcel of real property subject to the IDA Lease Agreement and identified in the drawing attached as Part II of Schedule 2.5(a) (the "PB2 IDA Bond Real Property");
(au)all real property leasehold estates of Seller (other than the PB2 IDA Bond Real Property) identified in the drawing attached as Schedule 2.5(b), and all appurtenances thereto, together with all buildings, leasehold improvements, fixtures, component parts, other constructions and other improvements thereon and thereto, including all construction work in progress (collectively, the "PB2 Leased Real Property");





(av)all licenses, rights-of-way, servitudes, easements and other similar real property interests appurtenant to or specifically benefiting the PB2 Owned Real Property, the PB2 Leased Real Property or the PB2 IDA Bond Real Property and easements in gross, held by Seller as well as the right, by way of license, right-of-way, servitude, easement, or similar right or instrument, to permit access to PB2 or to locate or operate the PB2 Business, including those described in Schedule 2.5(c) (collectively, the "PB2 Easements");
(aw)all tangible personal property and other property (other than the PB2 IDA Bond Real Property) specifically related to PB2 and subject to the IDA Lease Agreement (the "PB2 IDA Bond Other Property"), all machinery (mobile or otherwise), equipment, vehicles, pumps, fittings, tools, furniture, furnishings, meters and metering equipment, PB2 Leased Personal Property, PB2 Purchased Major Maintenance Spares and other tangible movable property that is located on the PB2 Real Property and specifically related to PB2, or acquired by Seller specifically for use or consumption at PB2, that is not PB2 Inventory, including such assets that are temporarily off-site for repair or other purposes, such assets being shipped to Seller or any Affiliate of Seller, and assets housed or kept at any Off-Site Real Property, and including the property listed or described in Schedule 2.5(d) (collectively, the "PB2 Tangible Personal Property");
(ax)all Inventory dedicated for use or consumption specifically for PB2, including the Inventory listed or described in Schedule 2.5(e) (collectively, the "PB2 Inventory");
(ay)subject to Section 2.6(c) and Section 6.5(c), all Contracts (i) listed or described in Schedule 2.5(f) (including all Contracts added to Schedule 2.5(f) between the Effective Date and the Closing Date with the written consent of PB2 Purchaser) and (ii) entered into by Seller after the Effective Date and prior to the Closing Date in the ordinary course of business consistent with past practices and added to Schedule 2.5(f) by Seller (x) under which the aggregate payments by PB2 Purchaser under such Contract will be $500,000 or less; (y) that are terminable on thirty (30)-days' notice or less without penalty and under which PB2 Purchaser would not be required or reasonably expected to spend more than $100,000 in any such thirty (30)-day notice period or (z) pursuant to which Seller purchases Inventory that replaces PB2 Inventory used by Seller between the Effective Date and the Closing in the ordinary course of business consistent with past practices and in accordance with the terms of this Agreement, it being understood that, for purposes of clauses (ii)(x), (y) and (z), each individual purchase order shall be deemed a Contract (as opposed to the corresponding master agreement) and that the aggregate amount of the payment obligations of PB2 Purchaser under the Contracts described in and permitted under clauses (ii)(x), (y) and (z) above shall not exceed $3,500,000 (collectively, the "PB2 Contracts");
(az)subject to Section 6.5(c), all Permits held or filed by Seller specifically in connection with the ownership, lease, use, operation or maintenance of PB2 or the PB2 Business, including those listed or described in Schedule 2.5(g) (collectively, the "PB2 Permits") and all pending applications for any new Permit that would be a PB2 Permit or renewal, extension or modification of any PB2 Permit, in each case to the extent legally transferable by sale;
(ba)all books, records, documents, drawings, reports, operating data, operating safety and maintenance manuals, inspection reports, engineering design plans, blueprints, specifications and procedures and similar items specifically relating to PB2, any of the other PB2 Assets or the PB2 Business and owned by, or in the care, custody or control of, Seller (in each case, (x) to the extent such transfer is not prohibited by Law and (y) absent any present restriction on such transfer), including (to the extent so specifically related) (i) Environmental logs, data sheets, studies, reports, and records, including correspondence received by or sent to Governmental Authorities; (ii)  records and files relating to any Permit, any pending application for a new Permit or any renewal, extension or modification of any Permit; (iii) emergency, accident, incident, safety and inspection reports and records, including reports submitted to the U.S. Department of Labor's Occupational Safety & Health Administration, to the extent resulting in or requiring physical changes to PB2 and not protected by a legal privilege benefiting Seller or prohibited by Law from being transferred to PB2 Purchaser; (iv) operating, maintenance, and repair logs, data sheets, reports and records; (v) vendor lists and





vendor purchase orders and records; (vi) engineering design and construction drawings and plans, including as-built drawings, blueprints, and specifications; (vii) records, plans, reports, and drawings specifically relating to the PB2 Real Property; (viii) drawings in AutoCAD or similar programs, OEM manuals, and other existing information and data (in electronic form where applicable) necessary to enable parallel migration to PB2 Purchaser's information systems (provided, that Seller shall not be responsible for ensuring that any such records or information can be so migrated); and (ix) records of or relating to the registration, use, offering, scheduling, operation, registration, modeling, and testing of or disputes involving PB2 in MISO, and, in each case, (A) the right to use and duplicate the foregoing and (B) in a format and on a medium, if any, currently produced by Seller (including originals to the extent retained in accordance with Seller's customary practice), it being understood and agreed that Seller may make and keep additional copies of any of the foregoing, subject to the Post-Closing Confidentiality Agreement, and shall use Commercially Reasonable Efforts to cause any such contractual restrictions on transfer to be waived or otherwise removed;
(bb)subject to Section 6.5(c), all unexpired warranties, indemnities, and guarantees made or given by manufacturers, contractors, architects, engineers, consultants, vendors, suppliers and other third parties specifically relating to PB2 or any of the other PB2 Assets, including the warranties, indemnities and guarantees listed or described in Schedule 2.5(i) (but excluding any indemnities contained in PB2 Excluded Contracts), other than those described in Section 2.6(m) (collectively, the "PB2 Warranties");
(bc)all claims or causes of action of Seller against third parties related to PB2 or the PB2 Business, including indemnification claims, contribution claims, warranty claims, and claims for refunds, prepayments, offsets, recoupment, insurance proceeds, condemnation awards, judgments and the like, to the extent arising out of or relating to the period after the Closing;
(bd)all advance payments, prepayments, prepaid expenses, deposits or the like (other than Proratable Items, the treatment of which is addressed in Section 3.6), in each case to the extent specifically related to PB2 or the PB2 Business and made by or on behalf of Seller before the Closing Date and applicable to periods on or after the Closing Date, including the items listed or described in Schedule 2.5(k) (collectively, the "PB2 Prepaid Items");
(be)subject to Section 6.5(c), all unapplied accounts, rights, or allowances involving Emission Allowances, if any, that have been or will be granted or allocated to, or purchased for, (i) PB2, (ii) the PB2 Business or (iii) the entire Project (collectively, the "PB2 Emission Allowances"); provided, however, that, in the case of the foregoing sub-clause (iii), only the portion of such Emission Allowances allocable to PB2 or the PB2 Business shall constitute PB2 Emission Allowances;
(bf)all Intellectual Property of Seller used specifically with respect to or in connection with PB2, other than Intellectual Property Rights retained by Seller pursuant to Project Excluded Contracts or Section 2.6(h) (and, subject to Section 6.17, excluding, for the avoidance of doubt, any right to use the name of Seller or any related or similar trade name, trademark, service mark, corporate name, corporate logo or any part, derivative or combination thereof) (collectively, the "PB2 Intellectual Property Rights"); and
(bg)all rights and benefits associated with the capacity of PB2, including all capacity credits (such as MISO zonal resource credits) and similar rights or benefits, all electric energy associated with and provided or to be provided from such capacity and other electric products available from or associated with such capacity, in each case, accruing with respect to the period after the Closing, subject to the EAI Tolling Agreement, if PB2 or PB2 Purchaser is subject to the EAI Tolling Agreement as of the Closing.
Section 2.6. PB2 Excluded Assets
. Nothing in this Agreement shall constitute or be construed as conferring on PB2 Purchaser, and PB2 Purchaser shall not be entitled or required to purchase or acquire, any right, title or interest in, to or under the following assets, interests, properties, rights, licenses or Contracts (collectively, the "PB2 Excluded Assets") and such assets, interests, properties, rights, licenses and Contracts shall be excluded from and shall not constitute PB2 Assets:





(bh)any PB2 Tangible Personal Property or PB2 Inventory consumed or disposed of prior to the Closing in the ordinary course of business consistent with the provisions of this Agreement, including Section 6.3, any Ancillary Agreement in effect or any PPA;
(bi)all of the assets, properties, rights or interests owned, used, occupied or held by or for the benefit of Seller or any Affiliate of Seller that are listed or described in Schedule 2.6(b);
(bj)all of the rights and interests of Seller and any Affiliate of Seller in, to, under or pursuant to any Contract listed or described in Schedule 2.6(c) (collectively, the "PB2 Excluded Contracts");
(bk)(i) the Employee Plans, any funds and property held in trust or any other funding vehicle pursuant to, or any assets set aside in respect of, any Employee Plan, all of the rights of any member of the Entegra Group under any of the foregoing (and in particular, but without limitation, neither PB2 Purchaser nor any Affiliate of any PB2 Purchaser shall be deemed to have assumed or acquired any right to any Employee Plan by reason of any provision of this Agreement), and any data and records (or copies thereof) required to administer any Employee Plan or other benefits of any present, former or future Employee of any member of the Entegra Group (and any qualified dependent or beneficiary of any such Person) and (ii) any “employee benefit plan,” as defined in Section 3(3) of ERISA, maintained by Employer’s Alliance LLC (d/b/a Fortune Business Solutions), any funds and property held in trust or any other funding vehicle pursuant to, or any assets set aside in respect of, any such plan, all of the rights of any Person under any of the foregoing and any data and records (or copies thereof) required to administer any such plan or other benefits of any present, former or future Employee of any Person (and any qualified dependent or beneficiary of any such Person);
(bl)except to the extent constituting PB2 Assets under Section 2.5(h), the books and records of Seller and any Affiliate of Seller, including Seller's minute books, limited partnership interest books, ledger and company seal;
(bm)cash, cash equivalents, bank deposits, bank accounts, securities accounts, commodities accounts, accounts and notes receivable, trade or otherwise, other than the PB2 Prepaid Items, of Seller or any Affiliate of Seller;
(bn)certificates of deposit, shares of stock, securities, bonds, debentures, evidences of indebtedness, and interests in joint ventures, partnerships, limited liability companies and other entities, in any such case owned (beneficially or of record) or held by Seller or any Affiliate of Seller;
(bo)all Intellectual Property Rights listed or described in Schedule 2.6(h);
(bp)all rights and remedies of Seller and any Affiliate of Seller arising under this Agreement, the Ancillary Agreements or any other instrument or document executed and delivered pursuant to the terms of this Agreement or any Ancillary Agreement (including rights to the Purchase Price);
(bq)all refunds or credits, if any, of Taxes due to or from Seller or any Affiliate of Seller, to the extent provided hereunder;
(br)the claims or causes of action against third parties to the extent relating to or arising under (i) the Pre-Closing Period (except to the extent expressly provided otherwise herein or in any Ancillary Agreement), (ii) any PB2 Excluded Contract or (iii) the Intellectual Property Rights listed or described in Schedule 2.6(h);
(bs)except as set forth on Schedule 2.6(l), all agreements, arrangements, commitments and other Contracts of any nature in respect of any intercompany transaction between Seller, on the one hand, and any Affiliate of Seller, on the other hand, whether or not such transaction relates to any contribution to capital, loan, the provision of goods or services, tax sharing arrangements, payment arrangements, intercompany advances, charges or balances, or the like;
(bt)all unexpired warranties, indemnities, and guarantees made or given by manufacturers, contractors, architects, engineers, consultants, vendors, suppliers and other third parties in connection with or relating to the Project to the extent relating to (i) the Pre-Closing Period, (ii) PB2 Major Maintenance Spares that are not PB2 Purchased Major Maintenance Spares, or (iii) a Project Excluded Contract or the Intellectual Property Rights listed or described in Schedule 2.6(h);





(bu)PB2 Major Maintenance Spares that are not PB2 Purchased Major Maintenance Spares;
(bv)all rights and benefits associated with the capacity of PB2, including all capacity credits (such as MISO zonal resource credits) and similar rights or benefits, all electric energy associated with and provided or to be provided from such capacity and other electric products available from or associated with such capacity, in each case, accruing with respect to the period prior to the Closing; and
(bw)any of the Purchased Assets (other than the PB2 Assets) or the Excluded Assets (other than the PB2 Assets).
Section 2.7. PB2 Assumed Liabilities
. Other than any of the following liabilities that would not have arisen but for a breach by Seller of its representations set forth in Article IV or any of its covenants set forth in Article VI that has given rise to a PB2 Purchaser Claim (except to the extent resulting from any violation, breach or default by, or waiver or extension given by or to, PB2 Purchaser), upon the Closing, PB2 Purchaser shall assume, and shall thereafter pay, perform and discharge as and when due, the following, and only the following, liabilities and obligations (collectively, the "PB2 Assumed Liabilities"):
(bx)any liability or obligation arising out of or related to the performance or non-performance by PB2 Purchaser or any Affiliate of PB2 Purchaser after the Closing of any PB2 Contract, Purchased License or PB2 Permit, including any breach by PB2 Purchaser or any Affiliate of PB2 Purchaser of, default by PB2 Purchaser or any Affiliate of PB2 Purchaser under, or waiver or extension given by or to PB2 Purchaser or any Affiliate of PB2 Purchaser with respect to the performance of, any covenant, representation, term or other provision of any of the PB2 Contracts, Purchased Licenses or PB2 Permits, to the extent not resulting from any violation, breach or default by, or waiver or extension given by or to, Seller or any Affiliate of Seller;
(by)any liability or obligation in respect of any cost that is the responsibility of PB2 Purchaser under this Agreement or any Ancillary Agreement, including the portion of any Proratable Item for which PB2 Purchaser is responsible under Section 3.6;
(bz)any liability or obligation in respect of any Action in respect of the PB2 Assets to the extent arising out of events, facts or circumstances (i) first occurring after the Closing or (ii) occurring after the Closing to the extent any such liability or obligation existed as of the Closing Date and is exacerbated by the acts or omissions of any Person other than Seller or any of its Affiliates or their respective Representatives;
(ca)any liability or obligation arising out of or related to or associated with (i) PB2 Purchaser's employment of Project Employees hired by PB2 Purchaser to the extent arising on or after any such Project Employee's employment by PB2 Purchaser or (ii) any violation of Law by PB2 Purchaser in connection with its hiring process for any Project Employees, regardless of when such liability or obligation arises (and, for the avoidance of doubt, to the extent the same are not derivative of any liability or obligation of any member of the Entegra Group);
(cb)any liability or obligation (i) with respect to any Tax for which PB2 Purchaser is responsible or liable under Section 6.2 or Section 6.10, (ii) with respect to any Tax attributable or allocable to the ownership, lease, possession, use, operation, repair, maintenance, or replacement of any of the Purchased Assets during any period or portion thereof ending on or after the Closing (or any other assets, properties, rights or interests associated, at any time after the Closing, with the Business), except for Taxes for which Seller is liable under Section 6.2 or Section 6.10, or (iii) for which PB2 Purchaser is primarily liable (as opposed to another Purchaser) under any Contract the primary purpose of which relates to Taxes; and
(cc)any liability or obligation relating to, based in whole or in part on any event, fact, circumstance or condition (or set of events, facts, circumstances or conditions) (x) first occurring after the Closing or (y) occurring after the Closing to the extent any such liability or obligation existed as of the





Closing Date and is exacerbated by the acts or omissions of any Person other than Seller or any of its Affiliates or their respective Representatives and, in either case, arising out of the financing, ownership, lease, possession, use, operation, repair, maintenance, or replacement of the Project or any of the Purchased Assets after the Closing, including (i) the delivery, receipt, movement, use, sale, conveyance, transfer, removal or disposal of any fuel, power (including any ancillary service), water, waste or any other Purchased Asset (or any Excluded Asset, including former assets) to or from PB2 at any time after the Closing, (ii) compliance or non-compliance with Laws (including Environmental Laws) or Permits after the Closing, including fines, penalties, charges, and costs, and interest thereon, (iii) any Environmental Condition, Environmental Claim or Environmental Liability in each case arising from conditions existing or events, facts or circumstances (A) first occurring after the Closing or (B) occurring after the Closing to the extent any such Environmental Condition, Environmental Claim or Environmental Liability that existed as of the Closing Date and is exacerbated by any act by or omission of any Person other than Seller or any of its Affiliates or their respective Representatives and (iv) any liability or obligation representing indebtedness for money borrowed (or any refinancing thereof) in respect of PB2 incurred after the Closing.
Section 2.8. PB2 Excluded Liabilities
. Except for the PB2 Assumed Liabilities and other than to the extent constituting an Assumed Liability for a Purchaser other than PB2 Purchaser, Seller shall retain, and PB2 Purchaser shall not assume or be obligated to pay, perform or otherwise discharge or be responsible or liable pursuant to this Agreement or otherwise with respect to, any liability or obligation of Seller or any Affiliate of Seller, whether or not of, associated with, or arising from any of the Purchased Assets, and whether fixed, contingent or otherwise, known or unknown, accrued or unaccrued, carried on or off of the books and records of Seller or any Affiliate of Seller, tangible or intangible (collectively, the "PB2 Excluded Liabilities"), including:
(cd)any liability or obligation to the extent relating to, based in whole or in part on any event, fact, circumstance or condition (or set of events, facts, circumstances or conditions) occurring or existing at any time prior to the Closing and to the extent arising out of, any of the following (in each case, regardless of when any claims arising therefrom or relating thereto mature or are asserted): (i) the financing, ownership, lease, possession, use, operation, repair, maintenance, or replacement of the Project or any of the Purchased Assets, including (A) the delivery, receipt, movement, use, sale, conveyance, transfer, removal or disposal of any fuel, power (including any ancillary service), water, waste or any other Purchased Asset (or any Excluded Asset, including former assets) to or from the Project, (B) compliance or non-compliance with Laws (including Environmental Laws) or Permits, including fines, penalties, charges, and costs, and interest thereon, (C) any Environmental Condition, Environmental Claim or Environmental Liability and (D) any obligation or liability representing indebtedness for money borrowed (or any refinancing thereof) or (ii) any other business, undertaking, or activity of Seller, any Affiliate of Seller, or any present or former owner (including any Predecessor-in-Interest) or operator of the Project or any of the other Purchased Assets;
(ce)any liability or obligation to the extent arising out of or related to the performance or non-performance by Seller or any Affiliate of Seller prior to the Closing (in each case, regardless of when any claims arising therefrom or relating thereto mature or are asserted) of any Contract or Permit, including any breach by Seller or any Affiliate of Seller of, default by Seller or any Affiliate of Seller under, or waiver or extension given by or to Seller or any Affiliate of Seller with respect to the performance of, any covenant, representation, term or other provision of any of the Purchased Contracts, Purchased Licenses or Purchased Permits and that would have been, but for such breach, default, waiver or extension, paid, performed or otherwise discharged prior to the Closing;
(cf)except as otherwise provided in Section 6.5(a), any liability or obligation of Seller or any Affiliate of Seller to the extent incurred in connection with obtaining any Consent relating to the sale,





conveyance, assignment, transfer or delivery of the Purchased Assets to Purchasers or the consummation of the Transactions hereunder;
(cg)any liability or obligation of Seller or any Affiliate of Seller in respect of the pending or threatened Actions set forth (or that should have been set forth) in Schedule 4.6 and the facts and circumstances relating to such matters;
(ch)any liability or obligation (i) with respect to any Tax for which Seller or any Affiliate of Seller is responsible or liable under Section 6.2 or Section 6.10, (ii) with respect to any Tax attributable or allocable to the ownership, lease, possession, use, operation, repair, maintenance, or replacement of any of the Purchased Assets during any period or portion thereof ending prior to the Closing (regardless of when any claims arising therefrom or relating thereto mature or are asserted) (or any other assets, properties, rights or interests associated, at any time prior to the Closing, with the Business), except for Taxes for which PB2 Purchaser is liable under Section 6.2 or Section 6.10, or (iii) for which Seller or any Affiliate of Seller is primarily liable under any Contract the principal purpose of which relates to Taxes;
(ci)other than those liabilities or obligations to the extent created directly by the actions of PB2 Purchaser or any Affiliate of PB2 Purchaser (and, for the avoidance of doubt, that are not derivative of any liabilities or obligations of any member of the Entegra Group) or that otherwise specifically constitute Assumed Liabilities under Section 2.7(d), any liability or obligation to, or relating to or arising out of (i)(x) any Employee Plan or Contract; (y) compensation, severance benefits, vacation pay, continuation coverage, expenses, or any other similar type claim arising under Law relating to employment or service as a consultant or independent contractor during any period prior to the Closing or as a result of the consummation of the Transactions or (z) any Collective Bargaining Agreement or collective bargaining, labor or labor relations Law; or (ii) the service or employment (or termination thereof) of, any present, former or future Employee (at any time with respect to any such Person who does not become an employee of any Purchaser or Affiliate of any Purchaser in connection with the Transaction and, with respect to any such Person who does become an employee of any Purchaser or Affiliate of any Purchaser in connection with the Transactions, at any time prior to such individual's effective date of hire by any Purchaser or Affiliate of any Purchaser), consultant or independent contractor, or Representative of any member of the Entegra Group, or to any spouse, former spouse, child, dependent, or other beneficiary of such Person, including any liability or obligation related to, arising out of or with respect to (1) any event, fact, omission, circumstance, occurrence or exposure (or set of events, facts, omissions, circumstances, occurrences or exposures), in each case whenever any claims arising therefrom or relating thereto mature or are asserted; (2) the withholding or payment of any federal, state or local income, employment, unemployment, or other Tax; (3) employment, compensation, wage and hour matters, equal employment opportunity, affirmative action, discrimination, retaliation, tort, or immigration and naturalization Law or any Law relating to employee benefits, employment discrimination, leave, accommodation, severance, labor relations, hiring or retention, safety, any employment contracts or agreements, unemployment, privacy, medical privacy, wages and hours of employees or any other terms or conditions of employment or any other employment-related matter or workplace issue, including COBRA; (4) any workers' compensation or any other employee health, accident, disability or safety claim; (5) any action (including any action taken in connection with the consummation of the Transactions) that is or could be construed as a plant closing or mass layoff under the WARN Act or any similar state law; or (6) any failure to properly classify any Employee as exempt or non-exempt or any individual as a consultant or independent contractor;
(cj)(i) the Employee Plans, any related trust or funding vehicle and any and all obligations, costs, expenses, claims and liabilities arising thereunder or in connection therewith, (ii) any “employee benefit plan,” as defined in Section 3(3) of ERISA, maintained by Employer’s Alliance LLC (d/b/a Fortune Business Solutions), any related trust or funding vehicle and any and all obligations, costs, expenses, claims and liabilities arising thereunder or in connection therewith and (iii) any Controlled Group Liabilities (together with the liabilities described in Section 2.8(f), the “PB2 Excluded Employee Liabilities”);





(ck)any liability or obligation in respect of any cost that is the responsibility of Seller or any Affiliate of Seller under this Agreement or any Ancillary Agreement, including the portion of any Proratable Item for which Seller is responsible under Section 3.6; and
(cl)any liability or obligation to the extent relating to any Excluded Asset or other asset that is not a PB2 Asset and the ownership, operation and conduct of any business in connection therewith or therefrom.
Section 2.9. PB3 Assets
. Upon the terms and subject to the conditions contained in this Agreement, at the Closing Seller, or, in the case of the IDA Bond Property, either Seller or Union County, Arkansas, as applicable, shall sell, convey, assign, transfer and deliver to PB3 Purchaser, free and clear of all Encumbrances, other than Permitted Encumbrances, and PB3 Purchaser shall purchase and acquire from (x) Seller, all of the right, title and interest of Seller in and to the assets, interests, properties, rights, licenses and contracts, of every kind, character and nature, whether real, personal, or mixed, fixed, contingent or otherwise, tangible or intangible, known or unknown, accrued or unaccrued, or carried on or off the books and records of Seller, and wherever situated, specifically relating to PB3 or the PB3 Business as in existence on the Effective Date and any additions thereto on or before the Closing Date, and (y) with respect to the IDA Bond Property only, Union County, Arkansas, if applicable, but in each case excluding the PB3 Excluded Assets and, for the avoidance of doubt, the PB1 Purchased Assets, the PB2 Purchased Assets, the PB4 Purchased Assets and the Common Facilities Assets (collectively, the "PB3 Assets"). The PB3 Assets include:
(cm)(i) all parcels of real property and fee simple interests identified in the drawing attached as Part I of Schedule 2.9(a), (ii) all appurtenances thereto, together with all buildings, fixtures, component parts, other constructions and other improvements thereon and thereto, including all construction work in progress (the foregoing subparts (i) and (ii) collectively, the "PB3 Owned Real Property") and (iii) each parcel of real property subject to the IDA Lease Agreement and identified in the drawing attached as Part II of Schedule 2.9(a) (the "PB3 IDA Bond Real Property");
(cn)all real property leasehold estates of Seller (other than the PB3 IDA Bond Real Property) identified in the drawing attached as Schedule 2.9(b), and all appurtenances thereto, together with all buildings, leasehold improvements, fixtures, component parts, other constructions and other improvements thereon and thereto, including all construction work in progress (collectively, the "PB3 Leased Real Property");
(co)all licenses, rights-of-way, servitudes, easements and other similar real property interests appurtenant to or specifically benefiting the PB3 Owned Real Property, the PB3 Leased Real Property or the PB3 IDA Bond Real Property and easements in gross, held by Seller as well as the right, by way of license, right-of-way, servitude, easement, or similar right or instrument, to permit access to PB3 or to locate or operate the PB3 Business, including those described in Schedule 2.9(c) (collectively, the "PB3 Easements");
(cp)all tangible personal property and other property (other than the PB3 IDA Bond Real Property) specifically related to PB3 and subject to the IDA Lease Agreement (the "PB3 IDA Bond Other Property"), all machinery (mobile or otherwise), equipment, vehicles, pumps, fittings, tools, furniture, furnishings, meters and metering equipment, PB3 Leased Personal Property, PB3 Purchased Major Maintenance Spares and other tangible movable property that is located on the PB3 Real Property and specifically related to PB3, or acquired by Seller specifically for use or consumption at PB3, that is not PB3 Inventory, including such assets that are temporarily off-site for repair or other purposes, such assets being shipped to Seller or any Affiliate of Seller, and assets housed or kept at any Off-Site Real Property, and including the property listed or described in Schedule 2.9(d) (collectively, the "PB3 Tangible Personal Property");
(cq)all Inventory dedicated for use or consumption specifically for PB3, including the Inventory listed or described in Schedule 2.9(e) (collectively, the "PB3 Inventory");





(cr)subject to Section 2.10(c) and Section 6.5(c), all Contracts (i) listed or described in Schedule 2.9(f) (including all Contracts added to Schedule 2.9(f) between the Effective Date and the Closing Date with the written consent of PB3 Purchaser) and (ii) entered into by Seller after the Effective Date and prior to the Closing Date in the ordinary course of business consistent with past practices and added to Schedule 2.9(f) by Seller (x) under which the aggregate payments by PB3 Purchaser under such Contract will be $500,000 or less; (y) that are terminable on thirty (30)-days' notice or less without penalty and under which PB3 Purchaser would not be required or reasonably expected to spend more than $100,000 in any such thirty (30)-day notice period or (z) pursuant to which Seller purchases Inventory that replaces PB3 Inventory used by Seller between the Effective Date and the Closing in the ordinary course of business consistent with past practices and in accordance with the terms of this Agreement, it being understood that, for purposes of clauses (ii)(x), (y) and (z), each individual purchase order shall be deemed a Contract (as opposed to the corresponding master agreement) and that the aggregate amount of the payment obligations of PB3 Purchaser under the Contracts described in and permitted under clauses (ii)(x), (y) and (z) above shall not exceed $3,500,000 (collectively, the "PB3 Contracts");
(cs)subject to Section 6.5(c), all Permits held or filed by Seller specifically in connection with the ownership, lease, use, operation or maintenance of PB3 or the PB3 Business, including those listed or described in Schedule 2.9(g) (collectively, the "PB3 Permits") and all pending applications for any new Permit that would be a PB3 Permit or renewal, extension or modification of any PB3 Permit, in each case to the extent legally transferable by sale;
(ct)all books, records, documents, drawings, reports, operating data, operating safety and maintenance manuals, inspection reports, engineering design plans, blueprints, specifications and procedures and similar items specifically relating to PB3, any of the other PB3 Assets or the PB3 Business and owned by, or in the care, custody or control of, Seller (in each case, (x) to the extent such transfer is not prohibited by Law and (y)  absent any present restriction on such transfer), including (to the extent so specifically related) (i) Environmental logs, data sheets, studies, reports, and records, including correspondence received by or sent to Governmental Authorities; (ii)  records and files relating to any Permit, any pending application for a new Permit or any renewal, extension or modification of any Permit; (iii) emergency, accident, incident, safety and inspection reports and records, including reports submitted to the U.S. Department of Labor's Occupational Safety & Health Administration, to the extent resulting in or requiring physical changes to PB3 and not protected by a legal privilege benefiting Seller or prohibited by Law from being transferred to PB3 Purchaser; (iv) operating, maintenance, and repair logs, data sheets, reports and records; (v) vendor lists and vendor purchase orders and records; (vi) engineering design and construction drawings and plans, including as-built drawings, blueprints, and specifications; (vii) records, plans, reports, and drawings specifically relating to the PB3 Real Property; (viii) drawings in AutoCAD or similar programs, OEM manuals, and other existing information and data (in electronic form where applicable) necessary to enable parallel migration to PB3 Purchaser's information systems (provided, that Seller shall not be responsible for ensuring that any such records or information can be so migrated); and (ix) records of or relating to the registration, use, offering, scheduling, operation, registration, modeling, and testing of or disputes involving PB3 in MISO, and, in each case, (A) the right to use and duplicate the foregoing and (B) in a format and on a medium, if any, currently produced by Seller (including originals to the extent retained in accordance with Seller's customary practice), it being understood and agreed that Seller may make and keep additional copies of any of the foregoing, subject to the Post-Closing Confidentiality Agreement, and shall use Commercially Reasonable Efforts to cause any such contractual restrictions on transfer to be waived or otherwise removed;
(cu)subject to Section 6.5(c), all unexpired warranties, indemnities, and guarantees made or given by manufacturers, contractors, architects, engineers, consultants, vendors, suppliers and other third parties specifically relating to PB3 or any of the other PB3 Assets, including the warranties, indemnities and guarantees listed or described in Schedule 2.9(i) (but excluding any indemnities contained in PB3 Excluded Contracts), other than those described in Section 2.10(m) (collectively, the "PB3 Warranties");





(cv)all claims or causes of action of Seller against third parties related to PB3 or the PB3 Business, including indemnification claims, contribution claims, warranty claims, and claims for refunds, prepayments, offsets, recoupment, insurance proceeds, condemnation awards, judgments and the like, to the extent arising out of or relating to the period after the Closing;
(cw)all advance payments, prepayments, prepaid expenses, deposits or the like (other than Proratable Items, the treatment of which is addressed in Section 3.6), in each case to the extent specifically related to PB3 or the PB3 Business and made by or on behalf of Seller before the Closing Date and applicable to periods on or after the Closing Date, including the items listed or described in Schedule 2.9(k) (collectively, the "PB3 Prepaid Items");
(cx)subject to Section 6.5(c), all unapplied accounts, rights, or allowances involving Emission Allowances, if any, that have been or will be granted or allocated to, or purchased for, (i) PB3, (ii) the PB3 Business or (iii) the entire Project (collectively, the "PB3 Emission Allowances"); provided, however, that, in the case of the foregoing sub-clause (iii), only the portion of such Emission Allowances allocable to PB3 or the PB3 Business shall constitute PB3 Emission Allowances;
(cy)all Intellectual Property of Seller used specifically with respect to or in connection with PB3, other than Intellectual Property Rights retained by Seller pursuant to Project Excluded Contracts or Section 2.10(h) (and, subject to Section 6.17, excluding, for the avoidance of doubt, any right to use the name of Seller or any related or similar trade name, trademark, service mark, corporate name, corporate logo or any part, derivative or combination thereof) (collectively, the "PB3 Intellectual Property Rights"); and
(cz)all rights and benefits associated with the capacity of PB3, including all capacity credits (such as MISO zonal resource credits) and similar rights or benefits, all electric energy associated with and provided or to be provided from such capacity and other electric products available from or associated with such capacity, in each case, accruing with respect to the period after the Closing, subject to the EAI Tolling Agreement, if PB3 or PB3 Purchaser is subject to the EAI Tolling Agreement as of the Closing.
Section 2.10. PB3 Excluded Assets
. Nothing in this Agreement shall constitute or be construed as conferring on PB3 Purchaser, and PB3 Purchaser shall not be entitled or required to purchase or acquire, any right, title or interest in, to or under the following assets, interests, properties, rights, licenses or Contracts (collectively, the "PB3 Excluded Assets") and such assets, interests, properties, rights, licenses and Contracts shall be excluded from and shall not constitute PB3 Assets:
(da)any PB3 Tangible Personal Property or PB3 Inventory consumed or disposed of prior to the Closing in the ordinary course of business consistent with the provisions of this Agreement, including Section 6.3, any Ancillary Agreement in effect or any PPA;
(db)all of the assets, properties, rights or interests owned, used, occupied or held by or for the benefit of Seller or any Affiliate of Seller that are listed or described in Schedule 2.10(b);
(dc)all of the rights and interests of Seller and any Affiliate of Seller in, to, under or pursuant to any Contract listed or described in Schedule 2.10(c) (collectively, the "PB3 Excluded Contracts");
(dd)(i) the Employee Plans, any funds and property held in trust or any other funding vehicle pursuant to, or any assets set aside in respect of, any Employee Plan, all of the rights of any member of the Entegra Group under any of the foregoing (and in particular, but without limitation, neither PB3 Purchaser nor any Affiliate of any PB3 Purchaser shall be deemed to have assumed or acquired any right to any Employee Plan by reason of any provision of this Agreement), and any data and records (or copies thereof) required to administer any Employee Plan or other benefits of any present, former or future Employee of any member of the Entegra Group (and any qualified dependent or beneficiary of any such Person) and (ii) any “employee benefit plan,” as defined in Section 3(3) of ERISA, maintained by Employer’s Alliance LLC (d/b/a Fortune Business Solutions), any funds and property held in trust or any other funding vehicle pursuant to, or any assets set aside in respect of, any such plan, all of the rights of any Person under any of the foregoing and any data and records (or copies thereof) required to administer any such plan or other





benefits of any present, former or future Employee of any Person (and any qualified dependent or beneficiary of any such Person);
(de)except to the extent constituting PB3 Assets under Section 2.9(h), the books and records of Seller and any Affiliate of Seller, including Seller's minute books, limited partnership interest books, ledger and company seal;
(df)cash, cash equivalents, bank deposits, bank accounts, securities accounts, commodities accounts, accounts and notes receivable, trade or otherwise, other than the PB3 Prepaid Items, of Seller or any Affiliate of Seller;
(dg)certificates of deposit, shares of stock, securities, bonds, debentures, evidences of indebtedness, and interests in joint ventures, partnerships, limited liability companies and other entities, in any such case owned (beneficially or of record) or held by Seller or any Affiliate of Seller;
(dh)all Intellectual Property Rights listed or described in Schedule 2.10(h);
(di)all rights and remedies of Seller and any Affiliate of Seller arising under this Agreement, the Ancillary Agreements or any other instrument or document executed and delivered pursuant to the terms of this Agreement or any Ancillary Agreement (including rights to the Purchase Price);
(dj)all refunds or credits, if any, of Taxes due to or from Seller or any Affiliate of Seller, to the extent provided hereunder;
(dk)the claims or causes of action against third parties to the extent relating to or arising under (i) the Pre-Closing Period (except to the extent expressly provided otherwise herein or in any Ancillary Agreement), (ii) any PB3 Excluded Contract or (iii) the Intellectual Property Rights listed or described in Schedule 2.10(h);
(dl)except as set forth on Schedule 2.10(l), all agreements, arrangements, commitments and other Contracts of any nature in respect of any intercompany transaction between Seller, on the one hand, and any Affiliate of Seller, on the other hand, whether or not such transaction relates to any contribution to capital, loan, the provision of goods or services, tax sharing arrangements, payment arrangements, intercompany advances, charges or balances, or the like;
(dm)all unexpired warranties, indemnities, and guarantees made or given by manufacturers, contractors, architects, engineers, consultants, vendors, suppliers and other third parties in connection with or relating to the Project to the extent relating to (i) the Pre-Closing Period, (ii) PB3 Major Maintenance Spares that are not PB3 Purchased Major Maintenance Spares, or (iii) a Project Excluded Contract or the Intellectual Property Rights listed or described in Schedule 2.10(h);
(dn)PB3 Major Maintenance Spares that are not PB3 Purchased Major Maintenance Spares;
(do)all rights and benefits associated with the capacity of PB3, including all capacity credits (such as MISO zonal resource credits) and similar rights or benefits, all electric energy associated with and provided or to be provided from such capacity and other electric products available from or associated with such capacity, in each case, accruing with respect to the period prior to the Closing; and
(dp)any of the Purchased Assets (other than the PB3 Assets) or the Excluded Assets (other than the PB3 Assets).
Section 2.11. PB3 Assumed Liabilities
. Other than any of the following liabilities that would not have arisen but for a breach by Seller of its representations set forth in Article IV or any of its covenants set forth in Article VI that has given rise to a PB3 Purchaser Claim (except to the extent resulting from any violation, breach or default by, or waiver or extension given by or to, PB3 Purchaser), upon the Closing, PB3 Purchaser shall assume, and shall thereafter pay, perform and discharge as and when due, the following, and only the following, liabilities and obligations (collectively, the "PB3 Assumed Liabilities"):
(dq)any liability or obligation arising out of or related to the performance or non-performance by PB3 Purchaser or any Affiliate of PB3 Purchaser after the Closing of any PB3





Contract, Purchased License or PB3 Permit, including any breach by PB3 Purchaser or any Affiliate of PB3 Purchaser of, default by PB3 Purchaser or any Affiliate of PB3 Purchaser under, or waiver or extension given by or to PB3 Purchaser or any Affiliate of PB3 Purchaser with respect to the performance of, any covenant, representation, term or other provision of any of the PB3 Contracts, Purchased Licenses or PB3 Permits, to the extent not resulting from any violation, breach or default by, or waiver or extension given by or to, Seller or any Affiliate of Seller;
(dr)any liability or obligation in respect of any cost that is the responsibility of PB3 Purchaser under this Agreement or any Ancillary Agreement, including the portion of any Proratable Item for which PB3 Purchaser is responsible under Section 3.6;
(ds)any liability or obligation in respect of any Action in respect of the PB3 Assets to the extent arising out of events, facts or circumstances (i) first occurring after the Closing or (ii) occurring after the Closing to the extent any such liability or obligation existed as of the Closing Date and is exacerbated by the acts or omissions of any Person other than Seller or any of its Affiliates or their respective Representatives;
(dt)any liability or obligation arising out of or related to or associated with (i) PB3 Purchaser's employment of Project Employees hired by PB3 Purchaser to the extent arising on or after any such Project Employee's employment by PB3 Purchaser or (ii) any violation of Law by PB3 Purchaser in connection with its hiring process for any Project Employees, regardless of when such liability or obligation arises (and, for the avoidance of doubt, to the extent the same are not derivative of any liability or obligation of any member of the Entegra Group);
(du)any liability or obligation (i) with respect to any Tax for which PB3 Purchaser is responsible or liable under Section 6.2 or Section 6.10, (ii) with respect to any Tax attributable or allocable to the ownership, lease, possession, use, operation, repair, maintenance, or replacement of any of the Purchased Assets during any period or portion thereof ending on or after the Closing (or any other assets, properties, rights or interests associated, at any time after the Closing, with the Business), except for Taxes for which Seller is liable under Section 6.2 or Section 6.10, or (iii) for which PB3 Purchaser is primarily liable (as opposed to another Purchaser) under any Contract the primary purpose of which relates to Taxes; and
(dv)any liability or obligation relating to, based in whole or in part on any event, fact, circumstance or condition (or set of events, facts, circumstances or conditions) (x) first occurring after the Closing or (y) occurring after the Closing to the extent any such liability or obligation existed as of the Closing Date and is exacerbated by the acts or omissions of any Person other than Seller or any of its Affiliates or their respective Representatives and, in either case, arising out of the financing, ownership, lease, possession, use, operation, repair, maintenance, or replacement of the Project or any of the Purchased Assets after the Closing, including (i) the delivery, receipt, movement, use, sale, conveyance, transfer, removal or disposal of any fuel, power (including any ancillary service), water, waste or any other Purchased Asset (or any Excluded Asset, including former assets) to or from PB3 at any time after the Closing, (ii) compliance or non-compliance with Laws (including Environmental Laws) or Permits after the Closing, including fines, penalties, charges, and costs, and interest thereon, (iii) any Environmental Condition, Environmental Claim or Environmental Liability in each case arising from conditions existing or events, facts or circumstances (A) first occurring after the Closing or (B) occurring after the Closing to the extent any such Environmental Condition, Environmental Claim or Environmental Liability that existed as of the Closing Date and is exacerbated by any act by or omission of any Person other than Seller or any of its Affiliates or their respective Representatives and (iv) any liability or obligation representing indebtedness for money borrowed (or any refinancing thereof) in respect of PB3 incurred after the Closing.
Section 2.12. PB3 Excluded Liabilities
. Except for the PB3 Assumed Liabilities and other than to the extent constituting an Assumed Liability for a Purchaser other than PB3 Purchaser, Seller shall retain, and PB3 Purchaser shall not assume or be obligated to pay, perform or otherwise discharge or be responsible or liable pursuant to this Agreement





or otherwise with respect to, any liability or obligation of Seller or any Affiliate of Seller, whether or not of, associated with, or arising from any of the Purchased Assets, and whether fixed, contingent or otherwise, known or unknown, accrued or unaccrued, carried on or off of the books and records of Seller or any Affiliate of Seller, tangible or intangible (collectively, the "PB3 Excluded Liabilities"), including:
(dw)any liability or obligation to the extent relating to, based in whole or in part on any event, fact, circumstance or condition (or set of events, facts, circumstances or conditions) occurring or existing at any time prior to the Closing and to the extent arising out of any of the following (in each case, regardless of when any claims arising therefrom or relating thereto mature or are asserted): (i) the financing, ownership, lease, possession, use, operation, repair, maintenance, or replacement of the Project or any of the Purchased Assets, including (A) the delivery, receipt, movement, use, sale, conveyance, transfer, removal or disposal of any fuel, power (including any ancillary service), water, waste or any other Purchased Asset (or any Excluded Asset, including former assets) to or from the Project, (B) compliance or non-compliance with Laws (including Environmental Laws) or Permits, including fines, penalties, charges, and costs, and interest thereon, (C) any Environmental Condition, Environmental Claim or Environmental Liability and (D) any obligation or liability representing indebtedness for money borrowed (or any refinancing thereof) or (ii) any other business, undertaking, or activity of Seller, any Affiliate of Seller, or any present or former owner (including any Predecessor-in-Interest) or operator of the Project or any of the other Purchased Assets;
(dx)any liability or obligation to the extent arising out of or related to the performance or non-performance by Seller or any Affiliate of Seller prior to the Closing (in each case, regardless of when any claims arising therefrom or relating thereto mature or are asserted) of any Contract or Permit, including any breach by Seller or any Affiliate of Seller of, default by Seller or any Affiliate of Seller under, or waiver or extension given by or to Seller or any Affiliate of Seller with respect to the performance of, any covenant, representation, term or other provision of any of the Purchased Contracts, Purchased Licenses or Purchased Permits and that would have been, but for such breach, default, waiver or extension, paid, performed or otherwise discharged prior to the Closing;
(dy)except as otherwise provided in Section 6.5(a), any liability or obligation of Seller or any Affiliate of Seller to the extent incurred in connection with obtaining any Consent relating to the sale, conveyance, assignment, transfer or delivery of the Purchased Assets to Purchasers or the consummation of the Transactions hereunder;
(dz)any liability or obligation of Seller or any Affiliate of Seller in respect of the pending or threatened Actions set forth (or that should have been set forth) in Schedule 4.6 and the facts and circumstances relating to such matters;
(ea)any liability or obligation (i) with respect to any Tax for which Seller or any Affiliate of Seller is responsible or liable under Section 6.2 or Section 6.10, (ii) with respect to any Tax attributable or allocable to the ownership, lease, possession, use, operation, repair, maintenance, or replacement of any of the Purchased Assets during any period or portion thereof ending prior to the Closing (regardless of when any claims arising therefrom or relating thereto mature or are asserted) (or any other assets, properties, rights or interests associated, at any time prior to the Closing, with the Business), except for Taxes for which PB3 Purchaser is liable under Section 6.2 or Section 6.10, or (iii) for which Seller or any Affiliate of Seller is primarily liable under any Contract the principal purpose of which relates to Taxes;
(eb)other than those liabilities or obligations to the extent created directly by the actions of PB3 Purchaser or any Affiliate of PB3 Purchaser (and, for the avoidance of doubt, that are not derivative of any liabilities or obligations of any member of the Entegra Group) or that otherwise specifically constitute Assumed Liabilities under Section 2.11(d), any liability or obligation to, or relating to or arising out of (i)(x) any Employee Plan or Contract; (y) compensation, severance benefits, vacation pay, continuation coverage, expenses, or any other similar type claim arising under Law relating to employment or service as





a consultant or independent contractor during any period prior to the Closing or as a result of the consummation of the Transactions or (z) any Collective Bargaining Agreement or collective bargaining, labor or labor relations Law; or (ii) the service or employment (or termination thereof) of, any present, former or future Employee (at any time with respect to any such Person who does not become an employee of any Purchaser or Affiliate of any Purchaser in connection with the Transaction and, with respect to any such Person who does become an employee of any Purchaser or Affiliate of any Purchaser in connection with the Transactions, at any time prior to such individual's effective date of hire by any Purchaser or Affiliate of any Purchaser), consultant or independent contractor, or Representative of any member of the Entegra Group, or to any spouse, former spouse, child, dependent, or other beneficiary of such Person, including any liability or obligation related to, arising out of or with respect to (1) any event, fact, omission, circumstance, occurrence or exposure (or set of events, facts, omissions, circumstances, occurrences or exposures), in each case whenever any claims arising therefrom or relating thereto mature or are asserted; (2) the withholding or payment of any federal, state or local income, employment, unemployment, or other Tax; (3) employment, compensation, wage and hour matters, equal employment opportunity, affirmative action, discrimination, retaliation, tort, or immigration and naturalization Law or any Law relating to employee benefits, employment discrimination, leave, accommodation, severance, labor relations, hiring or retention, safety, any employment contracts or agreements, unemployment, privacy, medical privacy, wages and hours of employees or any other terms or conditions of employment or any other employment-related matter or workplace issue, including COBRA; (4) any workers' compensation or any other employee health, accident, disability or safety claim; (5) any action (including any action taken in connection with the consummation of the Transactions) that is or could be construed as a plant closing or mass layoff under the WARN Act or any similar state law; or (6) any failure to properly classify any Employee as exempt or non-exempt or any individual as a consultant or independent contractor;
(ec)(i) the Employee Plans, any related trust or funding vehicle and any and all obligations, costs, expenses, claims and liabilities arising thereunder or in connection therewith, (ii) any “employee benefit plan,” as defined in Section 3(3) of ERISA, maintained by Employer’s Alliance LLC (d/b/a Fortune Business Solutions), any related trust or funding vehicle and any and all obligations, costs, expenses, claims and liabilities arising thereunder or in connection therewith and (iii) any Controlled Group Liabilities (together with the liabilities described in Section 2.12(f), the “PB3 Excluded Employee Liabilities”);
(ed)any liability or obligation in respect of any cost that is the responsibility of Seller or any Affiliate of Seller under this Agreement or any Ancillary Agreement, including the portion of any Proratable Item for which Seller is responsible under Section 3.6; and
(ee)any liability or obligation to the extent relating to any Excluded Asset or other asset that is not a PB3 Asset and the ownership, operation and conduct of any business in connection therewith or therefrom.
Section 2.13. PB4 Assets
. Upon the terms and subject to the conditions contained in this Agreement, at the Closing Seller, or, in the case of the IDA Bond Property, either Seller or Union County, Arkansas, as applicable, shall sell, convey, assign, transfer and deliver to PB4 Purchaser, free and clear of all Encumbrances, other than Permitted Encumbrances, and PB4 Purchaser shall purchase and acquire from (x) Seller, all of the right, title and interest of Seller in and to the assets, interests, properties, rights, licenses and contracts, of every kind, character and nature, whether real, personal, or mixed, fixed, contingent or otherwise, tangible or intangible, known or unknown, accrued or unaccrued, or carried on or off the books and records of Seller, and wherever situated, specifically relating to, PB4 or the PB4 Business, as in existence on the Effective Date and any additions thereto on or before the Closing Date, and (y) with respect to the IDA Bond Property only, Union County, Arkansas, if applicable but in each case excluding the PB4 Excluded Assets and, for the avoidance of doubt, the PB1 Purchased Assets, the PB2 Purchased Assets, the PB3 Purchased Assets and the Common Facilities Assets (collectively, the "PB4 Assets"). The PB4 Assets include:





(ef)(i) all parcels of real property and fee simple interests identified in the drawing attached as Part I of Schedule 2.13(a), (ii) all appurtenances thereto, together with all buildings, fixtures, component parts, other constructions and other improvements thereon and thereto, including all construction work in progress (the foregoing subparts (i) and (ii) collectively, the "PB4 Owned Real Property") and (iii) each parcel of real property subject to the IDA Lease Agreement and identified in the drawing attached as Part II of Schedule 2.13(a) (the "PB4 IDA Bond Real Property");
(eg)all real property leasehold estates of Seller (other than the PB4 IDA Bond Real Property) identified in the drawing attached as Schedule 2.13(b), and all appurtenances thereto, together with all buildings, leasehold improvements, fixtures, component parts, other constructions and other improvements thereon and thereto, including all construction work in progress (collectively, the "PB4 Leased Real Property");
(eh)all licenses, rights-of-way, servitudes, easements and other similar real property interests appurtenant to or specifically benefiting the PB4 Owned Real Property, the PB4 Leased Real Property or the PB4 IDA Bond Real Property and easements in gross, held by Seller as well as the right, by way of license, right-of-way, servitude, easement, or similar right or instrument, to permit access to PB4 or to locate or operate the PB4 Business, including those described in Schedule 2.13(c) (collectively, the "PB4 Easements");
(ei)all tangible personal property and other property (other than the PB4 IDA Bond Real Property) specifically related to PB4 and subject to the IDA Lease Agreement (the "PB4 IDA Bond Other Property"), all machinery (mobile or otherwise), equipment, vehicles, pumps, fittings, tools, furniture, furnishings, meters and metering equipment, PB4 Leased Personal Property, PB4 Purchased Major Maintenance Spares and other tangible movable property that is located on the PB4 Real Property and specifically related to PB4, or acquired by Seller specifically for use or consumption at PB4, that is not PB4 Inventory, including such assets that are temporarily off-site for repair or other purposes, such assets being shipped to Seller or any Affiliate of Seller, and assets housed or kept at any Off-Site Real Property, and including the property listed or described in Schedule 2.13(d) (collectively, the "PB4 Tangible Personal Property");
(ej)all Inventory dedicated for use or consumption specifically for PB4, including the Inventory listed or described in Schedule 2.13(e) (collectively, the "PB4 Inventory");
(ek)subject to Section 2.14(c) and Section 6.5(c), all Contracts (i) listed or described in Schedule 2.13(f) (including all Contracts added to Schedule 2.13(f) between the Effective Date and the Closing Date with the written consent of PB4 Purchaser) and (ii) entered into by Seller after the Effective Date and prior to the Closing Date in the ordinary course of business consistent with past practices and added to Schedule 2.13(f) by Seller (x) under which the aggregate payments by PB4 Purchaser under such Contract will be $500,000 or less; (y) that are terminable on thirty (30)-days' notice or less without penalty and under which PB4 Purchaser would not be required or reasonably expected to spend more than $100,000 in any such thirty (30)-day notice period or (z) pursuant to which Seller purchases Inventory that replaces PB4 Inventory used by Seller between the Effective Date and the Closing in the ordinary course of business consistent with past practices and in accordance with the terms of this Agreement, it being understood that, for purposes of clauses (ii)(x), (y) and (z), each individual purchase order shall be deemed a Contract (as opposed to the corresponding master agreement) and that the aggregate amount of the payment obligations of PB4 Purchaser under the Contracts described in and permitted under clauses (ii)(x), (y) and (z) above shall not exceed $3,500,000 (collectively, the "PB4 Contracts");
(el)subject to Section 6.5(c), all Permits held or filed by Seller specifically in connection with the ownership, lease, use, operation or maintenance of PB4 or the PB4 Business, including those listed or described in Schedule 2.13(g) (collectively, the "PB4 Permits") and all pending applications for any new Permit that would be a PB4 Permit or renewal, extension or modification of any PB4 Permit, in each case to the extent legally transferable by sale;





(em)all books, records, documents, drawings, reports, operating data, operating safety and maintenance manuals, inspection reports, engineering design plans, blueprints, specifications and procedures and similar items specifically relating to PB4, any of the other PB4 Assets or the PB4 Business and owned by, or in the care, custody or control of, Seller (in each case, (x) to the extent such transfer is not prohibited by Law and (y)  absent any present restriction on such transfer), including (to the extent so specifically related) (i) Environmental logs, data sheets, studies, reports, and records, including correspondence received by or sent to Governmental Authorities; (ii)  records and files relating to any Permit, any pending application for a new Permit or any renewal, extension or modification of any Permit; (iii) emergency, accident, incident, safety and inspection reports and records, including reports submitted to the U.S. Department of Labor's Occupational Safety & Health Administration, to the extent resulting in or requiring physical changes to PB4 and not protected by a legal privilege benefiting Seller or prohibited by Law from being transferred to PB4 Purchaser; (iv) operating, maintenance, and repair logs, data sheets, reports and records; (v) vendor lists and vendor purchase orders and records; (vi) engineering design and construction drawings and plans, including as-built drawings, blueprints, and specifications; (vii) records, plans, reports, and drawings specifically relating to the PB4 Real Property; (viii) drawings in AutoCAD or similar programs, OEM manuals, and other existing information and data (in electronic form where applicable) necessary to enable parallel migration to PB4 Purchaser's information systems (provided, that Seller shall not be responsible for ensuring that any such records or information can be so migrated); and (ix) records of or relating to the registration, use, offering, scheduling, operation, registration, modeling, and testing of or disputes involving PB4 in MISO, and, in each case, (A) the right to use and duplicate the foregoing and (B) in a format and on a medium, if any, currently produced by Seller (including originals to the extent retained in accordance with Seller's customary practice), it being understood and agreed that Seller may make and keep additional copies of any of the foregoing, subject to the Post-Closing Confidentiality Agreement, and shall use Commercially Reasonable Efforts to cause any such contractual restrictions on transfer to be waived or otherwise removed;
(en)subject to Section 6.5(c), all unexpired warranties, indemnities, and guarantees made or given by manufacturers, contractors, architects, engineers, consultants, vendors, suppliers and other third parties specifically relating to PB4 or any of the other PB4 Assets, including the warranties, indemnities and guarantees listed or described in Schedule 2.13(i) (but excluding any indemnities contained in PB1 Excluded Contracts), other than those described in Section 2.14(m) (collectively, the "PB4 Warranties");
(eo)all claims or causes of action of Seller against third parties related to PB4 or the PB4 Business, including indemnification claims, contribution claims, warranty claims, and claims for refunds, prepayments, offsets, recoupment, insurance proceeds, condemnation awards, judgments and the like, to the extent arising out of or relating to the period after the Closing;
(ep)all advance payments, prepayments, prepaid expenses, deposits or the like (other than Proratable Items, the treatment of which is addressed in Section 3.6), in each case to the extent specifically related to PB4 or the PB4 Business and made by or on behalf of Seller before the Closing Date and applicable to periods on or after the Closing Date, including the items listed or described in Schedule 2.13(k) (collectively, the "PB4 Prepaid Items");
(eq)subject to Section 6.5(c), all unapplied accounts, rights, or allowances involving Emission Allowances, if any, that have been or will be granted or allocated to, or purchased for, (i) PB4, (ii) the PB4 Business or (iii) the entire Project (collectively, the "PB4 Emission Allowances"); provided, however, that, in the case of the foregoing sub-clause (iii), only the portion of such Emission Allowances allocable to PB4 or the PB4 Business shall constitute PB4 Emission Allowances;
(er)all Intellectual Property of Seller used specifically with respect to or in connection with PB4, other than Intellectual Property Rights retained by Seller pursuant to Project Excluded Contracts or Section 2.14(h) (and, subject to Section 6.17, excluding, for the avoidance of doubt, any right to use the name of Seller or any related or similar trade name, trademark, service mark, corporate name, corporate logo or any part, derivative or combination thereof) (collectively, the "PB4 Intellectual Property Rights"); and





(es)all rights and benefits associated with the capacity of PB4, including all capacity credits (such as MISO zonal resource credits) and similar rights or benefits, all electric energy associated with and provided or to be provided from such capacity and other electric products available from or associated with such capacity, in each case, accruing with respect to the period after the Closing, subject to the EAI Tolling Agreement, if PB4 or PB4 Purchaser is subject to the EAI Tolling Agreement as of the Closing.
Section 2.14. PB4 Excluded Assets
. Nothing in this Agreement shall constitute or be construed as conferring on PB4 Purchaser, and PB4 Purchaser shall not be entitled or required to purchase or acquire, any right, title or interest in, to or under the following assets, interests, properties, rights, licenses or Contracts (collectively, the "PB4 Excluded Assets") and such assets, interests, properties, rights, licenses and Contracts shall be excluded from and shall not constitute PB4 Assets:
(et)any PB4 Tangible Personal Property or PB4 Inventory consumed or disposed of prior to the Closing in the ordinary course of business consistent with the provisions of this Agreement, including Section 6.3, any Ancillary Agreement in effect or any PPA;
(eu)all of the assets, properties, rights or interests owned, used, occupied or held by or for the benefit of Seller or any Affiliate of Seller that are listed or described in Schedule 2.14(b);
(ev)all of the rights and interests of Seller and any Affiliate of Seller in, to, under or pursuant to any Contract listed or described in Schedule 2.14(c) (collectively, the "PB4 Excluded Contracts");
(ew)(i) the Employee Plans, any funds and property held in trust or any other funding vehicle pursuant to, or any assets set aside in respect of, any Employee Plan, all of the rights of any member of the Entegra Group under any of the foregoing (and in particular, but without limitation, neither PB4 Purchaser nor any Affiliate of any PB4 Purchaser shall be deemed to have assumed or acquired any right to any Employee Plan by reason of any provision of this Agreement), and any data and records (or copies thereof) required to administer any Employee Plan or other benefits of any present, former or future Employee of any member of the Entegra Group (and any qualified dependent or beneficiary of any such Person) and (ii) any “employee benefit plan,” as defined in Section 3(3) of ERISA, maintained by Employer’s Alliance LLC (d/b/a Fortune Business Solutions), any funds and property held in trust or any other funding vehicle pursuant to, or any assets set aside in respect of, any such plan, all of the rights of any Person under any of the foregoing and any data and records (or copies thereof) required to administer any such plan or other benefits of any present, former or future Employee of any Person (and any qualified dependent or beneficiary of any such Person);
(ex)except to the extent constituting PB4 Assets under Section 2.13(h), the books and records of Seller and any Affiliate of Seller, including Seller's minute books, limited partnership interest books, ledger and company seal;
(ey)cash, cash equivalents, bank deposits, bank accounts, securities accounts, commodities accounts, accounts and notes receivable, trade or otherwise, other than the PB4 Prepaid Items, of Seller or any Affiliate of Seller;
(ez)certificates of deposit, shares of stock, securities, bonds, debentures, evidences of indebtedness, and interests in joint ventures, partnerships, limited liability companies and other entities, in any such case owned (beneficially or of record) or held by Seller or any Affiliate of Seller;
(fa)all Intellectual Property Rights listed or described in Schedule 2.14(h);
(fb)all rights and remedies of Seller and any Affiliate of Seller arising under this Agreement, the Ancillary Agreements or any other instrument or document executed and delivered pursuant to the terms of this Agreement or any Ancillary Agreement (including rights to the Purchase Price);
(fc)all refunds or credits, if any, of Taxes due to or from Seller or any Affiliate of Seller, to the extent provided hereunder;
(fd)the claims or causes of action against third parties to the extent relating to or arising under (i) the Pre-Closing Period (except to the extent expressly provided otherwise herein or in any Ancillary





Agreement), (ii) any PB4 Excluded Contract or (iii) the Intellectual Property Rights listed or described in Schedule 2.14(h);
(fe)except as set forth on Schedule 2.14(l), all agreements, arrangements, commitments and other Contracts of any nature in respect of any intercompany transaction between Seller, on the one hand, and any Affiliate of Seller, on the other hand, whether or not such transaction relates to any contribution to capital, loan, the provision of goods or services, tax sharing arrangements, payment arrangements, intercompany advances, charges or balances, or the like;
(ff)all unexpired warranties, indemnities, and guarantees made or given by manufacturers, contractors, architects, engineers, consultants, vendors, suppliers and other third parties in connection with or relating to the Project to the extent relating to (i) the Pre-Closing Period, (ii) PB4 Major Maintenance Spares that are not PB4 Purchased Major Maintenance Spares, or (iii) a Project Excluded Contract or the Intellectual Property Rights listed or described in Schedule 2.14(h);
(fg)PB4 Major Maintenance Spares that are not PB4 Purchased Major Maintenance Spares;
(fh)all rights and benefits associated with the capacity of PB4, including all capacity credits (such as MISO zonal resource credits) and similar rights or benefits, all electric energy associated with and provided or to be provided from such capacity and other electric products available from or associated with such capacity, in each case, accruing with respect to the period prior to the Closing; and
(fi)any of the Purchased Assets (other than the PB4 Assets) or the Excluded Assets (other than the PB4 Assets).
Section 2.15. PB4 Assumed Liabilities
. Other than any of the following liabilities that would not have arisen but for a breach by Seller of its representations set forth in Article IV or any of its covenants set forth in Article VI that has given rise to a PB4 Purchaser Claim (except to the extent resulting from any violation, breach or default by, or waiver or extension given by or to, PB4 Purchaser), upon the Closing, PB4 Purchaser shall assume, and shall thereafter pay, perform and discharge as and when due, the following, and only the following, liabilities and obligations (collectively, the "PB4 Assumed Liabilities"):
(fj)any liability or obligation arising out of or related to the performance or non-performance by PB4 Purchaser or any Affiliate of PB4 Purchaser after the Closing of any PB4 Contract, Purchased License or PB4 Permit, including any breach by PB4 Purchaser or any Affiliate of PB4 Purchaser of, default by PB4 Purchaser or any Affiliate of PB4 Purchaser under, or waiver or extension given by or to PB4 Purchaser or any Affiliate of PB4 Purchaser with respect to the performance of, any covenant, representation, term or other provision of any of the PB4 Contracts, Purchased Licenses or PB4 Permits, to the extent not resulting from any violation, breach or default by, or waiver or extension given by or to, Seller or any Affiliate of Seller;
(fk)any liability or obligation in respect of any cost that is the responsibility of PB4 Purchaser under this Agreement or any Ancillary Agreement, including the portion of any Proratable Item for which PB4 Purchaser is responsible under Section 3.6;
(fl)any liability or obligation in respect of any Action in respect of the PB4 Assets to the extent arising out of events, facts or circumstances (i) first occurring after the Closing or (ii) occurring after the Closing to the extent any such liability or obligation existed as of the Closing Date and is exacerbated by any Person other than Seller or any of its Affiliates or their respective Representatives;
(fm)any liability or obligation arising out of or related to or associated with (i) PB4 Purchaser's employment of Project Employees hired by PB4 Purchaser to the extent arising on or after any such Project Employee's employment by PB4 Purchaser or (ii) any violation of Law by PB4 Purchaser in connection with its hiring process for any Project Employees, regardless of when such liability or obligation arises (and, for the avoidance of doubt, to the extent the same are not derivative of any liability or obligation of any member of the Entegra Group);





(fn)any liability or obligation (i) with respect to any Tax for which PB4 Purchaser is responsible or liable under Section 6.2 or Section 6.10, (ii) with respect to any Tax attributable or allocable to the ownership, lease, possession, use, operation, repair, maintenance, or replacement of any of the Purchased Assets during any period or portion thereof ending on or after the Closing (or any other assets, properties, rights or interests associated, at any time after the Closing, with the Business), except for Taxes for which Seller is liable under Section 6.2 or Section 6.10, or (iii) for which PB4 Purchaser is primarily liable (as opposed to another Purchaser) under any Contract the primary purpose of which relates to Taxes; and
(fo)any liability or obligation relating to, based in whole or in part on any event, fact, circumstance or condition (or set of events, facts, circumstances or conditions) (x) first occurring after the Closing or (y) occurring after the Closing to the extent any such liability or obligation existed as of the Closing Date and is exacerbated by the acts or omissions of any Person other than Seller or any of its Affiliiates or their respective Representatives and, in either case, arising out of the financing, ownership, lease, possession, use, operation, repair, maintenance, or replacement of the Project or any of the Purchased Assets after the Closing, including (i) the delivery, receipt, movement, use, sale, conveyance, transfer, removal or disposal of any fuel, power (including any ancillary service), water, waste or any other Purchased Asset (or any Excluded Asset, including former assets) to or from PB4 at any time after the Closing, (ii) compliance or non-compliance with Laws (including Environmental Laws) or Permits after the Closing, including fines, penalties, charges, and costs, and interest thereon, (iii) any Environmental Condition, Environmental Claim or Environmental Liability in each case arising from conditions existing or events, facts or circumstances (A) first occurring after the Closing or (B) occurring after the Closing to the extent any such Environmental Condition, Environmental Claim or Environmental Liability that existed as of the Closing Date and is exacerbated by any act by or omission of any Person other than Seller or any of its Affiliates or their respective Representatives and (iv) any liability or obligation representing indebtedness for money borrowed (or any refinancing thereof) in respect of PB4 incurred after the Closing.
Section 2.16. PB4 Excluded Liabilities
. Except for the PB4 Assumed Liabilities and other than to the extent constituting an Assumed Liability for a Purchaser other than PB4 Purchaser, Seller shall retain, and PB4 Purchaser shall not assume or be obligated to pay, perform or otherwise discharge or be responsible or liable pursuant to this Agreement or otherwise with respect to, any liability or obligation of Seller or any Affiliate of Seller, whether or not of, associated with, or arising from any of the Purchased Assets, and whether fixed, contingent or otherwise, known or unknown, accrued or unaccrued, carried on or off of the books and records of Seller or any Affiliate of Seller, tangible or intangible (collectively, the "PB4 Excluded Liabilities"), including:
(fp)any liability or obligation to the extent relating to, based in whole or in part on any event, fact, circumstance or condition (or set of events, facts, circumstances or conditions) occurring or existing at any time prior to the Closing and to the extent arising out of any of the following (in each case, regardless of when any claims arising therefrom or relating thereto mature or are asserted): (i) the financing, ownership, lease, possession, use, operation, repair, maintenance, or replacement of the Project or any of the Purchased Assets, including (A) the delivery, receipt, movement, use, sale, conveyance, transfer, removal or disposal of any fuel, power (including any ancillary service), water, waste or any other Purchased Asset (or any Excluded Asset, including former assets) to or from the Project, (B) compliance or non-compliance with Laws (including Environmental Laws) or Permits, including fines, penalties, charges, and costs, and interest thereon, (C) any Environmental Condition, Environmental Claim or Environmental Liability and (D) any obligation or liability representing indebtedness for money borrowed (or any refinancing thereof) or (ii) any other business, undertaking, or activity of Seller, any Affiliate of Seller, or any present or former owner (including any Predecessor-in-Interest) or operator of the Project or any of the other Purchased Assets;





(fq)any liability or obligation to the extent arising out of or related to the performance or non-performance by Seller or any Affiliate of Seller prior to the Closing (in each case, regardless of when any claims arising therefrom or relating thereto mature or are asserted) of any Contract or Permit, including any breach by Seller or any Affiliate of Seller of, default by Seller or any Affiliate of Seller under, or waiver or extension given by or to Seller or any Affiliate of Seller with respect to the performance of, any covenant, representation, term or other provision of any of the Purchased Contracts, Purchased Licenses or Purchased Permits and that would have been, but for such breach, default, waiver or extension, paid, performed or otherwise discharged prior to the Closing;
(fr)except as otherwise provided in Section 6.5(a), any liability or obligation of Seller or any Affiliate of Seller to the extent incurred in connection with obtaining any Consent relating to the sale, conveyance, assignment, transfer or delivery of the Purchased Assets to Purchasers or the consummation of the Transactions hereunder;
(fs)any liability or obligation of Seller or any Affiliate of Seller in respect of the pending or threatened Actions set forth (or that should have been set forth) in Schedule 4.6 and the facts and circumstances relating to such matters;
(ft)any liability or obligation (i) with respect to any Tax for which Seller or any Affiliate of Seller is responsible or liable under Section 6.2 or Section 6.10, (ii) with respect to any Tax attributable or allocable to the ownership, lease, possession, use, operation, repair, maintenance, or replacement of any of the Purchased Assets during any period or portion thereof ending prior to the Closing (regardless of when any claims arising therefrom or relating thereto mature or are asserted) (or any other assets, properties, rights or interests associated, at any time prior to the Closing, with the Business), except for Taxes for which PB4 Purchaser is liable under Section 6.2 or Section 6.10, or (iii) for which Seller or any Affiliate of Seller is primarily liable under any Contract the principal purpose of which relates to Taxes;
(fu)other than those liabilities or obligations to the extent created directly by the actions of PB4 Purchaser or any Affiliate of PB4 Purchaser (and, for the avoidance of doubt, that are not derivative of any liabilities or obligations of any member of the Entegra Group) or that otherwise specifically constitute Assumed Liabilities under Section 2.15(d), any liability or obligation to, or relating to or arising out of (i)(x) any Employee Plan or Contract; (y) compensation, severance benefits, vacation pay, continuation coverage, expenses, or any other similar type claim arising under Law relating to employment or service as a consultant or independent contractor during any period prior to the Closing or as a result of the consummation of the Transactions or (z) any Collective Bargaining Agreement or collective bargaining, labor or labor relations Law; or (ii) the service or employment (or termination thereof) of, any present, former or future Employee (at any time with respect to any such Person who does not become an employee of any Purchaser or Affiliate of any Purchaser in connection with the Transaction and, with respect to any such Person who does become an employee of any Purchaser or Affiliate of any Purchaser in connection with the Transactions, at any time prior to such individual's effective date of hire by any Purchaser or Affiliate of any Purchaser), consultant or independent contractor, or Representative of any member of the Entegra Group, or to any spouse, former spouse, child, dependent, or other beneficiary of such Person, including any liability or obligation related to, arising out of or with respect to (1) any event, fact, omission, circumstance, occurrence or exposure (or set of events, facts, omissions, circumstances, occurrences or exposures), in each case whenever any claims arising therefrom or relating thereto mature or are asserted; (2) the withholding or payment of any federal, state or local income, employment, unemployment, or other Tax; (3) employment, compensation, wage and hour matters, equal employment opportunity, affirmative action, discrimination, retaliation, tort, or immigration and naturalization Law or any Law relating to employee benefits, employment discrimination, leave, accommodation, severance, labor relations, hiring or retention, safety, any employment contracts or agreements, unemployment, privacy, medical privacy, wages and hours of employees or any other terms or conditions of employment or any other employment-related matter or workplace issue, including COBRA; (4) any workers' compensation or any other employee health, accident, disability or safety claim; (5) any action (including any action taken in connection with the consummation of the Transactions)





that is or could be construed as a plant closing or mass layoff under the WARN Act or any similar state law; or (6) any failure to properly classify any Employee as exempt or non-exempt or any individual as a consultant or independent contractor;
(fv)(i) the Employee Plans, any related trust or funding vehicle and any and all obligations, costs, expenses, claims and liabilities arising thereunder or in connection therewith, (ii) any “employee benefit plan,” as defined in Section 3(3) of ERISA, maintained by Employer’s Alliance LLC (d/b/a Fortune Business Solutions), any related trust or funding vehicle and any and all obligations, costs, expenses, claims and liabilities arising thereunder or in connection therewith and (iii) any Controlled Group Liabilities (together with the liabilities described in Section 2.16(f), the “PB4 Excluded Employee Liabilities”);
(fw)any liability or obligation in respect of any cost that is the responsibility of Seller or any Affiliate of Seller under this Agreement or any Ancillary Agreement, including the portion of any Proratable Item for which Seller is responsible under Section 3.6; and
(fx)any liability or obligation to the extent relating to any Excluded Asset or other asset that is not a PB4 Asset and the ownership, operation and conduct of any business in connection therewith or therefrom.
Section 2.17. Common Facilities Assets
. Upon the terms and subject to the conditions contained in this Agreement, at the Closing Seller, or, in the case of the IDA Bond Property, either Seller or Union County, Arkansas, as applicable, shall sell, convey, assign, transfer and deliver to each Project Purchaser, free and clear of all Encumbrances, other than Permitted Encumbrances and each Project Purchaser shall purchase and acquire from (x) Seller, such Project Purchaser's Undivided Pro Rata Percentage in all of the right, title and interest of Seller in and to the assets, interests, properties, rights, licenses and contracts, of every kind, character and nature, whether real, personal, or mixed, fixed, contingent or otherwise, tangible or intangible, known or unknown, accrued or unaccrued, or carried on or off the books and records of Seller, and wherever situated, specifically relating to the Project or the Business, but not specifically to a Power Block, as in existence on the Effective Date and any additions thereto on or before the Closing Date, and (y) with respect to the IDA Bond Property only, Union County, Arkansas, if applicable, but in each case excluding the Common Facilities Excluded Assets and, for the avoidance of doubt, the Power Block Purchased Assets (collectively, the "Common Facilities Assets"). The Common Facilities Assets include:
(fy)(i) all parcels of real property and fee simple interests, identified in the drawing attached as Part I of Schedule 2.17(a), (ii) all appurtenances thereto, together with all buildings, fixtures, component parts, other constructions and other improvements thereon and thereto, including all construction work in progress (the foregoing subparts (i) and (ii) collectively, the "Common Facilities Owned Real Property") and (iii) each parcel of real property subject to the IDA Lease Agreement and identified in the drawing attached as Part II of Schedule 2.17(a) (the "Common Facilities IDA Bond Real Property");
(fz)all real property leasehold estates of Seller (other than the Common Facilities IDA Bond Real Property) identified in the drawing attached as Schedule 2.17(b), and all appurtenances thereto, together with all buildings, leasehold improvements, fixtures, component parts, other constructions and other improvements thereon and thereto, including all construction work in progress (collectively, the "Common Facilities Leased Real Property");
(ga)all licenses, rights-of-way, servitudes, easements and other similar real property interests appurtenant to or specifically benefiting the Common Facilities Owned Real Property, the Common Facilities Leased Real Property or the Common Facilities IDA Bond Real Property and easements in gross, held by Seller as well as the right, by way of license, right-of-way, servitude, easement, or similar right or instrument, to permit access to the Common Facilities Assets or to locate or operate the Business, including those described in Schedule 2.17(c) (collectively, the "Common Facilities Easements");





(gb)all tangible personal property and other property (other than the Common Facilities IDA Bond Real Property) specifically related to the Project, but not specifically to a Power Block, and subject to the IDA Lease Agreement (the "Common Facilities IDA Bond Other Property"), all machinery (mobile or otherwise), equipment, vehicles, pumps, fittings, tools, furniture, furnishings, meters and metering equipment, Common Facilities Leased Personal Property, Common Facilities Purchased Major Maintenance Spares and other tangible movable property that is located on the Common Facilities Real Property and specifically related to more than one Power Block, or acquired by Seller specifically for use or consumption by the Common Facilities Assets and that is not Common Facilities Inventory, including such assets that are temporarily off-site for repair or other purposes, such assets being shipped to Seller or any Affiliate of Seller, and assets housed or kept at any Off-Site Real Property, and including the property listed or described in Schedule 2.17(d) (collectively, the "Common Facilities Tangible Personal Property");
(gc)all Inventory dedicated for use or consumption specifically for the Project other than the Power Block Inventory, including the Inventory listed or described in Schedule 2.17(e) (collectively, the "Common Facilities Inventory");
(gd)subject to Section 2.18(c) and Section 6.5(c), all Contracts (i) listed or described in Schedule 2.17(f) (including all Contracts added to Schedule 2.17(f) between the Effective Date and the Closing Date with the written consent of Purchasers) and (ii) entered into by Seller after the Effective Date and prior to the Closing Date in the ordinary course of business consistent with past practices and added to Schedule 2.17(f) by Seller (x) under which the aggregate payments by Purchasers under such Contract will be $500,000 or less; (y) that are terminable on thirty (30)-days' notice or less without penalty and under which Purchasers would not be required or reasonably expected to spend more than $100,000 in any such thirty (30)-day notice period or (z) pursuant to which Seller purchases Inventory that replaces Common Facilities Inventory used by Seller between the Effective Date and the Closing in the ordinary course of business consistent with past practices and in accordance with the terms of this Agreement, it being understood that, for purposes of clauses (ii)(x), (y) and (z), each individual purchase order shall be deemed a Contract (as opposed to the corresponding master agreement) and that the aggregate amount of the payment obligations of Purchasers under the Contracts described in and permitted under clauses (ii)(x), (y) and (z) above shall not exceed $3,500,000 (collectively, the "Common Facilities Contracts");
(ge)subject to Section 6.5(c), all Permits held or filed by Seller specifically in connection with the ownership, lease, use, operation or maintenance of the Project or the Business, other than Power Block Permits, including those listed or described in Schedule 2.17(g) (collectively, the "Common Facilities Permits") and all pending applications for any new Permit that would be a Common Facilities Permit or renewal, extension or modification of any Common Facilities Permit, in each case to the extent legally transferable by sale;
(gf)all books, records, documents, drawings, reports, operating data, operating safety and maintenance manuals, inspection reports, engineering design plans, blueprints, specifications and procedures and similar items specifically relating to the Project, any of the Common Facilities Assets or the Business, other than those constituting Power Block Purchased Assets, and owned by, or in the care, custody or control of, Seller (in each case, (x) to the extent such transfer is not prohibited by Law and (y) absent any present restriction on such transfer), including (to the extent so specifically related): (i) Environmental logs, data sheets, studies, reports, and records, including correspondence received by or sent to Governmental Authorities; (ii)  records and files relating to any Permit, any pending application for a new Permit or any renewal, extension or modification of any Permit; (iii) emergency, accident, incident, safety and inspection reports and records, including reports submitted to the U.S. Department of Labor's Occupational Safety & Health Administration, to the extent resulting in or requiring physical changes to the Common Facilities Assets and not protected by a legal privilege benefiting Seller or prohibited by Law from being transferred to Purchasers; (iv) operating, maintenance, and repair logs, data sheets, reports and records; (v) vendor lists and vendor purchase orders and records; (vi) engineering design and construction drawings and plans, including as-built drawings, blueprints, and specifications; (vii) records, plans, reports, and drawings





specifically relating to the Common Facilities Real Property; (viii) drawings in AutoCAD or similar programs, OEM manuals, and other existing information and data (in electronic form where applicable) necessary to enable parallel migration to each Purchaser's information systems (provided, that Seller shall not be responsible for ensuring that any such records or information can be so migrated); and (ix) records of or relating to the registration, use, offering, scheduling, operation, registration, modeling, and testing of or disputes involving the Common Facilities Assets in MISO, and, in each case, (A) the right to use and duplicate the foregoing and (B) in a format and on a medium, if any, currently produced by Seller (including originals to the extent retained in accordance with Seller's customary practice), it being understood and agreed that Seller may make and keep additional copies of any of the foregoing, subject to the Post-Closing Confidentiality Agreement, and shall use Commercially Reasonable Efforts to cause any such contractual restrictions on transfer to be waived or otherwise removed;
(gg)subject to Section 6.5(c), all unexpired warranties, indemnities, and guarantees made or given by manufacturers, contractors, architects, engineers, consultants, vendors, suppliers and other third parties specifically relating to the Project or any of the Common Facilities Assets, other than the Power Block Warranties, including the warranties, indemnities and guarantees listed or described in Schedule 2.17(i) (but excluding any indemnities contained in Common Facilities Excluded Contracts), other than those described in Section 2.18(m) (collectively, the "Common Facilities Warranties");
(gh)all claims or causes of action of Seller against third parties related to the Project or the Business, other than those constituting Power Block Purchased Assets, including indemnification claims, contribution claims, warranty claims, and claims for refunds, prepayments, offsets, recoupment, insurance proceeds, condemnation awards, judgments and the like, to the extent arising or relating to the period after the Closing;
(gi)all advance payments, prepayments, prepaid expenses, deposits or the like (other than Proratable Items, the treatment of which is addressed in Section 3.6), in each case to the extent specifically related to the Project or the Business, other than those constituting Power Block Purchased Assets, and made by or on behalf of Seller before the Closing Date and applicable to periods on or after the Closing Date, including the items listed or described in Schedule 2.17(k) (collectively, the "Common Facilities Prepaid Items");
(gj)subject to Section 6.5(c), all unapplied accounts, rights, or allowances involving Emission Allowances, if any, that have been or will be granted or allocated to, or purchased for, more than one Power Block (collectively, the "Common Facilities Emission Allowances");
(gk)all Intellectual Property of Seller used specifically with respect to or in connection with the Project or the Business, other than (i) the Power Block Intellectual Property and (ii) Intellectual Property Rights retained by Seller pursuant to Common Facilities Excluded Contracts or Section 2.18(h) (and, subject to Section 6.17, excluding, for the avoidance of doubt, any right to use the name of Seller or any related or similar trade name, trademark, service mark, corporate name, corporate logo or any part, derivative or combination thereof) (collectively, the "Common Facilities Intellectual Property Rights"); and
(gl)all other assets, interests, properties, rights, licenses and Contracts, of every kind, nature, character and description, whether real, personal or mixed, whether fixed, contingent or otherwise, tangible or intangible, known or unknown, accrued or unaccrued, or carried or not carried on the books and records of Seller, and wherever situated, in each case primarily relating to, used by or for, or held for use by or for the Project or the Business, other than those constituting Power Block Purchased Assets, directly or indirectly, in whole or in part, as in existence on the Effective Date and any additions thereto (and subject to any deletions therefrom as permitted hereby) on or before the Closing Date.
Section 2.18. Common Facilities Excluded Assets
. Nothing in this Agreement shall constitute or be construed as conferring on any Purchaser, and no Purchaser shall be entitled or required to purchase or acquire, any right, title or interest in, to or under the following assets, interests, properties, rights, licenses or Contracts (collectively, the "Common Facilities





Excluded Assets") and such assets, interests, properties, rights, licenses and Contracts shall be excluded from and shall not constitute Common Facilities Assets:
(gm)any Common Facilities Tangible Personal Property or Common Facilities Inventory consumed or disposed of prior to the Closing in the ordinary course of business consistent with the provisions of this Agreement, including Section 6.3, any Ancillary Agreement in effect or any PPA;
(gn)all of the assets, properties, rights or interests, owned, used, occupied or held by or for the benefit of Seller or any Affiliate of Seller that are listed or described in Schedule 2.18(b);
(go)all of the rights and interests of Seller and any Affiliate of Seller in, to, under or pursuant to any Contract listed or described in Schedule 2.18(c) and each other Contract entered into after the Effective Date that is not a Purchased Contract (collectively, the "Common Facilities Excluded Contracts");
(gp)(i) the Employee Plans, any funds and property held in trust or any other funding vehicle pursuant to, or any assets set aside in respect of, any Employee Plan, all of the rights of any member of the Entegra Group under any of the foregoing (and in particular, but without limitation, no Purchaser nor any Affiliate of any Purchaser shall be deemed to have assumed or acquired any right to any Employee Plan by reason of any provision of this Agreement), and any data and records (or copies thereof) required to administer any Employee Plan or other benefits of any present, former or future Employee of any member of the Entegra Group (and any qualified dependent or beneficiary of any such Person) and (ii) any “employee benefit plan,” as defined in Section 3(3) of ERISA, maintained by Employer’s Alliance LLC (d/b/a Fortune Business Solutions), any funds and property held in trust or any other funding vehicle pursuant to, or any assets set aside in respect of, any such plan, all of the rights of any Person under any of the foregoing and any data and records (or copies thereof) required to administer any such plan or other benefits of any present, former or future Employee of any Person (and any qualified dependent or beneficiary of any such Person);
(gq)except to the extent constituting Common Facilities Assets under Section 2.17(h), the books and records of Seller and any Affiliate of Seller, including Seller's minute books, limited partnership interest books, ledger and company seal;
(gr)cash, cash equivalents, bank deposits, bank accounts, securities accounts, commodities accounts, accounts and notes receivable, trade or otherwise, other than the Common Facilities Prepaid Items, of Seller or any Affiliate of Seller;
(gs)certificates of deposit, shares of stock, securities, bonds, debentures, evidences of indebtedness, and interests in joint ventures, partnerships, limited liability companies and other entities, in any such case owned (beneficially or of record) or held by Seller or any Affiliate of Seller;
(gt)all Intellectual Property Rights listed or described in Schedule 2.18(h);
(gu)all rights and remedies of Seller and any Affiliate of Seller arising under this Agreement, the Ancillary Agreements or any other instrument or document executed and delivered pursuant to the terms of this Agreement or any Ancillary Agreement (including rights to the Purchase Price);
(gv)all refunds or credits, if any, of Taxes due to or from Seller or any Affiliate of Seller, to the extent provided hereunder;
(gw)the claims or causes of action against third parties to the extent relating to or arising under (i) the Pre-Closing Period (except to the extent expressly provided otherwise herein or in any Ancillary Agreement), (ii) any Common Facilities Excluded Contract or (iii) the Intellectual Property Rights listed or described in Schedule 2.18(h);
(gx)except as set forth on Schedule 2.18(l), all agreements, arrangements, commitments and other Contracts of any nature in respect of any intercompany transaction between Seller, on the one hand, and any Affiliate of Seller, on the other hand, whether or not such transaction relates to any contribution to capital, loan, the provision of goods or services, tax sharing arrangements, payment arrangements, intercompany advances, charges or balances, or the like;





(gy)all unexpired warranties, indemnities, and guarantees made or given by manufacturers, contractors, architects, engineers, consultants, vendors, suppliers and other third parties in connection with or relating to the Project to the extent relating to (i) the Pre-Closing Period, (ii) Common Facilities Major Maintenance Spares that are not Common Facilities Purchased Major Maintenance Spares, or (iii) a Project Excluded Contract or the Intellectual Property Rights listed or described in Schedule 2.18(h);
(gz)Common Facilities Major Maintenance Spares that are not Common Facilities Purchased Major Maintenance Spares; and
(ha)any of the Purchased Assets (other than the Common Facilities Assets) or the Excluded Assets (other than the Common Facilities Assets).
Section 2.19. Common Facilities Assumed Liabilities
. Other than any of the following liabilities that would not have arisen but for a breach by Seller of its representations set forth in Article IV or any of its covenants set forth in Article VI that has given rise to a PB1 Purchaser Claim, PB2 Purchaser Claim, PB3 Purchaser Claim or PB4 Purchaser Claim (except to the extent resulting from any violation, breach or default by, or waiver or extension given by or to, a Project Purchaser), upon the Closing, each Project Purchaser shall assume, and shall thereafter pay, perform, and discharge as and when due, such Project Purchaser's Undivided Pro Rata Percentage in the following, and only the following, liabilities and obligations, in each case, solely as allocable to the Common Facilities Assets (collectively, the "Common Facilities Assumed Liabilities"):
(hb)any liability or obligation arising out of or related to the performance or non-performance by any Project Purchaser or any Affiliate of any Project Purchaser after the Closing of any Common Facilities Contract, Purchased License or Common Facilities Permit, including any breach by any Project Purchaser or any Affiliate of any Project Purchaser of, default by any Project Purchaser or any Affiliate of any Project Purchaser under, or waiver or extension given by or to any Project Purchaser or any Affiliate of any Project Purchaser with respect to the performance of, any covenant, representation, term or other provision of any of the Common Facilities Contracts, Purchased Licenses or Common Facilities Permits, to the extent not resulting from any violation, breach or default by, or waiver or extension given by or to, Seller or any Affiliate of Seller;
(hc)any liability or obligation in respect of any cost that is the responsibility of any Project Purchaser under this Agreement or any Ancillary Agreement, including the portion of any Proratable Item for which any Project Purchaser is responsible under Section 3.6;
(hd)any liability or obligation in respect of any Action in respect of the Common Facilities Assets to the extent arising out of events, facts or circumstances (i) first occurring after the Closing or (ii) occurring after the Closing to the extent any such liability or obligation existed as of the Closing Date and is exacerbated by the acts or omissions of any Person other than Seller or any of its Affiliates or their respective Representatives;
(he)any liability or obligation arising out of or related to or associated with (i) any Project Purchaser's employment of Project Employees hired by any Project Purchaser to the extent arising on or after any such Project Employee's employment by such Project Purchaser or (ii) any violation of Law by any Project Purchaser in connection with its hiring process for any Project Employees, regardless of when such liability or obligation arises (and, for the avoidance of doubt, to the extent the same are not derivative of any liability or obligation of any member of the Entegra Group);
(hf)any liability or obligation (i) with respect to any Tax for which any Project Purchaser is responsible or liable under Section 6.2 or Section 6.10, (ii) with respect to any Tax attributable or allocable to the ownership, lease, possession, use, operation, repair, maintenance, or replacement of any of the Common Facilities Assets during any period or portion thereof ending on or after the Closing (or any other assets, properties, rights or interests associated, at any time after the Closing, with the Business), except for Taxes for which Seller is liable under Section 6.2 or Section 6.10, or (iii) for which a Project Purchaser is primarily





liable (as opposed to another Purchaser) under any Contract the primary purpose of which relates to Taxes; and
(hg)any liability or obligation relating to, based in whole or in part on any event, fact, circumstance or condition (or set of events, facts, circumstances or conditions) (x) first occurring after the Closing or (y) occurring after the Closing to the extent any such liability or obligation existed as of the Closing Date and is exacerbated by the acts or omissions of any Person other than Seller or any of its Affiliates or their respective Representatives and, in either case, arising out of the financing, ownership, lease, possession, use, operation, repair, maintenance, or replacement of the Project or any of the Purchased Assets after the Closing, including (i) the delivery, receipt, movement, use, sale, conveyance, transfer, removal or disposal of any fuel, power (including any ancillary service), water, waste or any other Purchased Asset (or any Excluded Asset, including former assets) to or from the Common Facilities Assets at any time after the Closing, (ii) compliance or non-compliance with Laws (including Environmental Laws) or Permits after the Closing, including fines, penalties, charges, and costs, and interest thereon, (iii) any Environmental Condition, Environmental Claim or Environmental Liability in each case arising from conditions existing or events, facts or circumstances (A) first occurring after the Closing or (B) occurring after the Closing to the extent any such Environmental Condition, Environmental Claim or Environmental Liability existed as of the Closing Date and is exacerbated by any act by or omission of any Person other than Seller or any of its Affiliates or their respective Representatives and (iv) any liability or obligation representing indebtedness for money borrowed (or any refinancing thereof) in respect of the Common Facilities Assets incurred after the Closing.
Section 2.20. Common Facilities Excluded Liabilities
. Except for the Common Facilities Assumed Liabilities (which, notwithstanding anything to the contrary herein, shall not include any Excluded Employee Liabilities), Seller shall retain, and no Project Purchaser shall assume or be obligated to pay, perform or otherwise discharge or be responsible or liable pursuant to this Agreement or otherwise with respect to, any liability or obligation of Seller or any Affiliate of Seller, whether or not of, associated with, or arising from any of the Purchased Assets, and whether fixed, contingent or otherwise, known or unknown, accrued or unaccrued, carried on or off of the books and records of Seller or any Affiliate of Seller, tangible or intangible (collectively, the "Common Facilities Excluded Liabilities"), including:
(hh)any liability or obligation to the extent relating to, based in whole or in part on any event, fact, circumstance or condition (or set of events, facts, circumstances or conditions) occurring or existing at any time prior to the Closing and to the extent arising out of, any of the following (in each case regardless of when any claims arising therefrom or relating thereto mature or are asserted): (i) the financing, ownership, lease, possession, use, operation, repair, maintenance, or replacement of the Project or any of the Purchased Assets, including (A) the delivery, receipt, movement, use, sale, conveyance, transfer, removal or disposal of any fuel, power (including any ancillary service), water, waste or any other Purchased Asset (or any Excluded Asset, including former assets) to or from the Project, (B) compliance or non-compliance with Laws (including Environmental Laws) or Permits, including fines, penalties, charges, and costs, and interest thereon, (C) any Environmental Condition, Environmental Claim or Environmental Liability, and (D) any obligation or liability representing indebtedness for money borrowed (or any refinancing thereof) or (ii) any other business, undertaking, or activity of Seller, any Affiliate of Seller, or any present or former owner (including any Predecessor-in-Interest) or operator of the Project or any of the other Purchased Assets;
(hi)any liability or obligation to the extent arising out of or related to the performance or non-performance by Seller or any Affiliate of Seller prior to the Closing (in each case, regardless of when any claims arising therefrom or relating thereto mature or are asserted) of any Common Facilities Contract or Common Facilities Permit, including any breach by Seller or any Affiliate of Seller of, default by Seller or any Affiliate of Seller under, or waiver or extension given by or to Seller or any Affiliate of Seller with





respect to the performance of, any covenant, representation, term or other provision of any of the Purchased Contracts, Purchased Licenses or Purchased Permits and that would have been, but for such breach, default, waiver or extension, paid, performed or otherwise discharged prior to the Closing;
(hj)except as otherwise provided in Section 6.5(a), any liability or obligation of Seller or any Affiliate of Seller to the extent incurred in connection with obtaining any Consent relating to the sale, conveyance, assignment, transfer or delivery of the Purchased Assets to Purchasers or the consummation of the Transactions hereunder;
(hk)any liability or obligation of Seller or any Affiliate of Seller in respect of the pending or threatened Actions set forth (or that should have been set forth) in Schedule 4.6 and the facts and circumstances relating to such matters;
(hl)any liability or obligation (i) with respect to any Tax for which Seller or any Affiliate of Seller is responsible or liable under Section 6.2 or Section 6.10, (ii) with respect to any Tax attributable or allocable to the ownership, lease, possession, use, operation, repair, maintenance, or replacement of any of the Purchased Assets during any period or portion thereof ending prior to the Closing (regardless of when any claims arising therefrom or relating thereto mature or are asserted) (or any other assets, properties, rights or interests associated, at any time prior to the Closing, with the Business), except for Taxes for which a Project Purchaser is liable under Section 6.2, or (iii) for which Seller or any Affiliate of Seller is liable under any Contract providing for the allocation, indemnification or sharing of Taxes;
(hm)other than those liabilities or obligations to the extent created directly by the actions of a Project Purchaser or any Affiliate of a Project Purchaser (and, for the avoidance of doubt, that are not derivative of any liabilities or obligations of any member of the Entegra Group) or that otherwise specifically constitute Assumed Liabilities under Section 2.19(d), any liability or obligation to, or relating to or arising out of (i)(x) any Employee Plan or Contract; (y) compensation, severance benefits, vacation pay, continuation coverage, expenses, or any other similar type claim arising under Law relating to employment or service as a consultant or independent contractor during any period prior to the Closing or as a result of the consummation of the Transactions or (z) any Collective Bargaining Agreement or collective bargaining, labor or labor relations Law; or (ii) the service or employment (or termination thereof) of, any present, former or future Employee (at any time with respect to any such Person who does not become an employee of any Purchaser or Affiliate of any Purchaser in connection with the Transaction and, with respect to any such Person who does become an employee of any Purchaser or Affiliate of any Purchaser in connection with the Transactions, at any time prior to such individual's effective date of hire by any Purchaser or Affiliate of any Purchaser), consultant or independent contractor, or Representative of any member of the Entegra Group, or to any spouse, former spouse, child, dependent, or other beneficiary of such Person, including any liability or obligation related to, arising out of or with respect to (1) any event, fact, omission, circumstance, occurrence or exposure (or set of events, facts, omissions, circumstances, occurrences or exposures), in each case whenever any claims arising therefrom or relating thereto mature or are asserted; (2) the withholding or payment of any federal, state or local income, employment, unemployment, or other Tax; (3) employment, compensation, wage and hour matters, equal employment opportunity, affirmative action, discrimination, retaliation, tort, or immigration and naturalization Law or any Law relating to employee benefits, employment discrimination, leave, accommodation, severance, labor relations, hiring or retention, safety, any employment contracts or agreements, unemployment, privacy, medical privacy, wages and hours of employees or any other terms or conditions of employment or any other employment-related matter or workplace issue, including COBRA; (4) any workers' compensation or any other employee health, accident, disability or safety claim; (5) any action (including any action taken in connection with the consummation of the Transactions) that is or could be construed as a plant closing or mass layoff under the WARN Act or any similar state law; or (6) any failure to properly classify any Employee as exempt or non-exempt or any individual as a consultant or independent contractor;
(hn)(i) the Employee Plans, any related trust or funding vehicle and any and all obligations, costs, expenses, claims and liabilities arising thereunder or in connection therewith, (ii) any “employee benefit





plan,” as defined in Section 3(3) of ERISA, maintained by Employer’s Alliance LLC (d/b/a Fortune Business Solutions), any related trust or funding vehicle and any and all obligations, costs, expenses, claims and liabilities arising thereunder or in connection therewith and (iii) any Controlled Group Liabilities (together with the liabilities described in Section 2.20(f), the “Common Facilities Excluded Employee Liabilities”);
(ho)any liability or obligation in respect of any cost that is the responsibility of Seller or any Affiliate of Seller under this Agreement or any Ancillary Agreement, including the portion of any Proratable Item for which Seller is responsible under Section 3.6; and
(hp)any liability or obligation to the extent relating to any Excluded Asset or other asset that is not a Common Facilities Asset and the ownership, operation and conduct of any business in connection therewith or therefrom.
Section 2.21. Option to Purchase Major Maintenance Spares
.
(hq)In accordance with this Section 2.21, (i) PB1 Purchaser shall have the right, but not the obligation, to purchase all, but not less than all, of the PB1 Major Maintenance Spares at the Closing, (ii) PB2 Purchaser shall have the right, but not the obligation, to purchase all, but not less than all, of the PB2 Major Maintenance Spares at the Closing, (iii) PB3 Purchaser shall have the right, but not the obligation, to purchase all, but not less than all, of the PB3 Major Maintenance Spares at the Closing, (iv) PB4 Purchaser shall have the right, but not the obligation, to purchase all, but not less than all, of the PB4 Major Maintenance Spares at the Closing, and (v) the Project Purchasers shall have the right, but not the obligation, to purchase all, but not less than all, of the Common Facilities Major Maintenance Spares at the Closing.
(hr)Not earlier than one hundred forty (140) days and not later than one hundred twenty (120) days prior to the Target Closing Date, Seller shall (i) deliver to PB1 Purchaser an updated Schedule MMS-1 that reflects any replacement or substitute Major Maintenance Spare procured by Seller that is specifically related to PB1, including the book value and condition of each such Major Maintenance Spare, and removes any Major Maintenance Spare previously listed on Schedule MMS-1 that is unavailable as of the date of such update or will be unavailable as of the Closing, (ii) deliver to PB2 Purchaser an updated Schedule MMS-2 that reflects any replacement or substitute Major Maintenance Spare procured by Seller that is specifically related to PB2, including the book value and condition of each such Major Maintenance Spare, and removes any Major Maintenance Spare previously listed on Schedule MMS-2 that is unavailable as of the date of such update or will be unavailable as of the Closing, (iii) deliver to PB3 Purchaser an updated Schedule MMS-3 that reflects any replacement or substitute Major Maintenance Spare procured by Seller that is specifically related to PB3, including the book value and condition of each such Major Maintenance Spare, and removes any Major Maintenance Spare previously listed on Schedule MMS-3 that is unavailable as of the date of such update or will be unavailable as of the Closing, (iv) deliver to PB4 Purchaser an updated Schedule MMS-4 that reflects any replacement or substitute Major Maintenance Spare procured by Seller that is specifically related to PB4, including the book value and condition of each such Major Maintenance Spare, and removes any Major Maintenance Spare previously listed on Schedule MMS-4 that is unavailable as of the date of such update or will be unavailable as of the Closing and (v) deliver to each Project Purchaser an updated Schedule MMS-5 that reflects any replacement or substitute Major Maintenance Spare procured by Seller that is primarily related to the Project but not specifically related to a particular Power Block, including the book value and condition of each such Major Maintenance Spare, and removes any Major Maintenance Spare previously listed on Schedule MMS-5 that is unavailable as of the date of such update or will be unavailable as of the Closing.
(hs)Within sixty (60) days of (i) PB1 Purchaser receiving the updated Schedule MMS-1, PB1 Purchaser shall notify Seller in writing whether PB1 Purchaser desires to purchase the PB1 Major Maintenance Spares listed on the updated Schedule MMS-1 at the Closing, (ii) PB2 Purchaser receiving the updated Schedule MMS-2, PB2 Purchaser shall notify Seller in writing whether PB2 Purchaser desires to





purchase the PB2 Major Maintenance Spares listed on the updated Schedule MMS-2 at the Closing, (iii) PB3 Purchaser receiving the updated Schedule MMS-3, PB3 Purchaser shall notify Seller in writing whether PB3 Purchaser desires to purchase the PB3 Major Maintenance Spares listed on the updated Schedule MMS-3 at the Closing, (iv) PB4 Purchaser receiving the updated Schedule MMS-4, PB4 Purchaser shall notify Seller in writing whether PB4 Purchaser desires to purchase the PB1 Major Maintenance Spares listed on the updated Schedule MMS-4 at the Closing, and (v) the Project Purchasers receiving the updated Schedule MMS-5, the Project Purchasers shall notify Seller in writing whether the Project Purchasers desire to purchase the Common Facilities Capital Spares listed on the updated Schedule MMS-5 at the Closing.
(ht)Any failure of (i) PB1 Purchaser to timely deliver a notice pursuant to Section 2.21(c) shall be deemed an election by PB1 Purchaser to not purchase the PB1 Major Maintenance Spares at the Closing, (ii) PB2 Purchaser to timely deliver a notice pursuant to Section 2.21(c) shall be deemed an election by PB2 Purchaser to not purchase the PB2 Major Maintenance Capital Spares at the Closing, (iii) PB3 Purchaser to timely deliver a notice pursuant to Section 2.21(c) shall be deemed an election by PB3 Purchaser to not purchase the PB3 Major Maintenance Spares at the Closing, (iv) PB4 Purchaser to timely deliver a notice pursuant to Section 2.21(c) shall be deemed an election by PB4 Purchaser to not purchase the PB4 Major Maintenance Spares at the Closing, and (v) the Project Purchasers to timely deliver a notice pursuant to Section 2.21(c) shall be deemed an election by the Project Purchasers to not purchase the Common Facilities Major Maintenance Spares at the Closing.
(hu)If (i) a Project Purchaser has notified Seller pursuant to Section 2.21(c) that such Project Purchaser desires to purchase the Major Maintenance Spares listed on the updated schedule provided to such Project Purchaser pursuant to Section 2.21(b) and (ii) after such Project Purchaser has delivered such notification and prior to the date that is thirty (30) days prior to the anticipated Closing Date any of the Major Maintenance Spares listed on such updated schedule will be unavailable as of the Closing because such Major Maintenance Spares have been incorporated into PB1, PB2, PB3 or PB4, as applicable, Seller shall deliver to such Project Purchaser an updated schedule that removes such Major Maintenance Spares from such schedule. Within twenty (20) days of such Project Purchaser receiving such updated schedule such Project Purchaser shall notify Seller in writing whether such Project Purchaser desires to purchase the Major Maintenance Spares listed on such updated schedule. Any failure of such Project Purchaser to timely deliver a notice pursuant to this Section 2.21(e) shall be deemed an election by such Project Purchaser to not purchase any of the Major Maintenance Spares listed on such updated schedule at the Closing notwithstanding any prior election of such Project Purchaser to purchase the Major Maintenance Spares listed on any prior schedule.
(hv)Notwithstanding the foregoing, (i) PB1 Purchaser may agree to purchase, and Seller may agree to sell, less than all of the PB1 Major Maintenance Spares at the Closing at a price mutually agreed to by PB1 Purchaser and Seller, (ii) PB2 Purchaser may agree to purchase, and Seller may agree to sell, less than all of the PB2 Major Maintenance Spares at the Closing at a price mutually agreed to by PB2 Purchaser and Seller, (iii) PB3 Purchaser may agree to purchase, and Seller may agree to sell, less than all of the PB3 Major Maintenance Spares at the Closing at a price mutually agreed to by PB3 Purchaser and Seller, (iv) PB4 Purchaser may agree to purchase, and Seller may agree to sell, less than all of the PB4 Major Maintenance Spares at the Closing at a price mutually agreed to by PB4 Purchaser and Seller, and (v) the Project Purchasers may agree to purchaser, and Seller may agree to sell, less than all of the Common Facilities Major Maintenance Spares at the Closing at a price mutually agreed to by Project Purchasers and Seller.
Section 2.22. Modifications to Power Block Purchasers
.
(hw)Modifications to Initial Power Block Purchasers. On or before the earliest to occur of (i) EGSL filing an application with the LPSC seeking authorization of the Transaction and cost recovery or (ii) ETI filing an application with the PUCT seeking authorization of the Transaction and cost recovery, the Purchasers may deliver a joint written notice to Seller modifying which





Purchaser will be, from and after the date of such notice (subject to the remainder of this Section 2.22 and the other terms of this Agreement), the PB1 Purchaser, the PB2 Purchaser, the PB3 Purchaser and the PB4 Purchaser; provided that in no event will (A) EGSL (subject to the remainder of this Section 2.22 and the other terms of this Agreement) or ETI be designated as more than two of the foregoing or (B) EAI be designated as more or less than one of the foregoing.
(hx)Option to Replace EAI. Seller acknowledges and agrees that, subject to the proviso in Section 6.7(h), at any time prior to the Closing Date, EGSL may replace EAI as the PB1 Purchaser, PB2 Purchaser, PB3 Purchaser and/or PB4 Purchaser, as applicable, at any time prior to any automatic replacement of EAI as the PB1 Purchaser, PB2 Purchaser, PB3 Purchaser and/or PB4 Purchaser, as applicable, pursuant to Section 2.22(d) (a "Section 2.22(b) Replacement"). A Section 2.22(b) Replacement shall become effective upon written notice thereof from or on behalf of EGSL or EAI to Seller.
(hy)Option to Replace ETI. Seller acknowledges and agrees that, subject to the proviso in Section 6.7(h), at any time prior to the Closing Date, EGSL may replace ETI as the PB1 Purchaser, PB2 Purchaser, PB3 Purchaser and/or PB4 Purchaser, as applicable, at any time prior to any automatic replacement of ETI as the PB1 Purchaser, PB2 Purchaser, PB3 Purchaser and/or PB4 Purchaser, as applicable, pursuant to Section 2.22(e) (a "Section 2.22(c) Replacement"). A Section 2.22(c) Replacement shall become effective upon written notice thereof from or on behalf of EGSL or ETI to Seller.
(hz)Obligation to Replace EAI. If EAI provides Seller and each other Purchaser written notice that any of its Purchasers' Regulatory Approvals necessary to satisfy the condition to closing set forth in Section 7.4(a) has been denied or has been granted subject to or containing any term or condition not satisfactory to EAI in its sole and absolute discretion and has not irrevocably waived the condition to closing set forth in Section 7.4(a), EGSL shall automatically, and without any further action of any Party, replace EAI as the PB1 Purchaser, PB2 Purchaser, PB3 Purchaser or PB4 Purchaser, as applicable, from and after the date of such notice, and have all rights and obligations of the PB1 Purchaser, PB2 Purchaser, PB3 Purchaser or PB4 Purchaser, as applicable, thereafter. EAI shall provide such notice to Seller and each other Purchaser promptly after any of its Purchasers' Regulatory Approvals necessary to satisfy the condition to closing set forth in Section 7.4(a) has been denied or has been granted subject to or containing any term or condition not satisfactory to EAI in its sole and absolute discretion and EAI has determined that it will not irrevocably waive the condition to closing set forth in Section 7.4(a).
(ia)Obligation to Replace ETI. If ETI provides Seller and each other Purchaser written notice that any of its Purchasers' Regulatory Approvals necessary to satisfy the condition to closing set forth in Section 7.4(a) has been denied or has been granted subject to or containing any term or condition not satisfactory to ETI in its sole and absolute discretion and has not irrevocably waived the condition to closing set forth in Section 7.4(a), EGSL shall automatically, and without any further action of any Party, replace ETI as the PB1 Purchaser, PB2 Purchaser, PB3 Purchaser or PB4 Purchaser, as applicable, from and after the date of such notice, and have all rights and obligations of the PB1 Purchaser, PB2 Purchaser, PB3 Purchaser or PB4 Purchaser, as applicable, thereafter. ETI shall provide such notice to Seller and each other Purchaser promptly after any of its Purchasers' Regulatory Approvals necessary to satisfy the condition to closing set forth in Section 7.4(a) has been denied or has been granted subject to or containing any term or condition not satisfactory to ETI in its sole and absolute discretion and ETI has determined that it will not irrevocably waive the condition to closing set forth in Section 7.4(a).
Section 2.23. Modification to Tolling Block
. EAI acknowledges receipt of Seller's proposal pursuant to Section 3.9 of the EAI Tolling Agreement to use PB2 (the "Tolled Power Block") to provide Replacement Products (as defined in the EAI Tolling Agreement) to EAI under the EAI Tolling Agreement from and after March 1, 2015 (the "Toll Switch Date") and, subject to the satisfaction of the following conditions prior to February 14, 2015, accepts such proposal:





(ib)Seller shall have installed communications and related equipment necessary for the Tolled Power Block to be able to provide the same service currently provided by PB1, such communications and related equipment shall have been tested by Seller and such tests shall confirm that such communications and related equipment provide the same service currently provided by PB1;
(ic)MISO shall have allocated to the Tolled Power Block, and shall recognize the Tolled Power Block as having, 495 MW of NRIS from and after the Toll Switch Date;
(id)EAI shall have been granted MISO market participant status with respect to the Tolled Power Block from and after the Toll Switch Date and shall have released such status with respect to PB1 (which it hereby agrees to do upon the satisfaction of the other conditions set out in this Section 2.23);
(ie)the Tolled Power Block shall be capable of meeting all the requirements of the EAI Tolling Agreement;
(if)Seller and EAI shall have entered into an agreement in substantially the form attached hereto as Exhibit J governing the relationship of such parties as it relates to the operation, maintenance and dispatch of PB1 under the EAI Tolling Agreement; and
(ig)no Event of Default (as defined in the EAI Tolling Agreement) shall have occurred with respect to Seller under the EAI Tolling Agreement.
Section 2.24. EAI Tolling Agreement
(ih). The Parties agree that the EAI Tolling Agreement shall not constitute a Purchased Contract hereunder except following Closing solely to the extent that it is to be assigned at Closing to satisfy the conditions set forth in Sections 7.12 and 8.8.

ARTICLE III
CLOSING; PURCHASE PRICE
Section 3.1.Closing
. Subject to the terms and conditions hereof, the consummation of the Transactions (the "Closing") shall take place at the Houston office of Bracewell & Giuliani, LLP, 711 Louisiana Street, Suite 2300, Houston, Texas 77002, at 10:00 a.m. local time, on the tenth (10th) day following the date on which the conditions set forth in Article VII and Article VIII, other than those conditions that by their nature are to be satisfied at the Closing, have been either satisfied or waived by the Party for whose benefit such conditions exist (or, if such day is not a Business Day, the immediately succeeding Business Day), or on such other date or at such other place and time as the Parties may mutually agree in writing. Notwithstanding the foregoing, if the final day of the month in which the Closing is scheduled to occur is a Business Day, the Parties shall use Commercially Reasonable Efforts to cause the Closing to occur on such day. The date on which the Closing occurs is referred to herein as the "Closing Date." The Closing shall be deemed to be effective for all purposes as of 11:59:59 p.m. Central Prevailing Time on the Closing Date.
Section 3.2. Seller Closing Deliverables
. At the Closing, Seller shall deliver, or cause to be delivered, to the applicable Purchaser the following items:
(a)(i) to the extent Seller elects for the IDA Bond Property to be transferred to the relevant Purchaser from Union County, Arkansas, (A) each Deed and Bill of Sale, executed by a duly authorized representative of Union County, Arkansas, pursuant to which the IDA Bond Property described therein is transferred to the relevant Purchaser, and (B) other documents properly executed by Seller or Union County, Arkansas as and to the extent contemplated by Section 6.21, and (ii) each other Ancillary Agreement to which Seller is a party, duly executed by a duly authorized representative of Seller, and each document, if any, required to be delivered to such Purchaser by Seller in accordance





with the provisions of any Ancillary Agreement, duly executed by a duly authorized representative of Seller;
(b)each document required to be delivered to such Purchaser by Seller pursuant to Article VII;
(c)copies of each Seller's Consent to the extent obtained by Seller with respect to the sale and purchase of the Purchased Assets or the consummation of the Transactions, including with respect to the transfer of any Purchased Contract or Purchased License;
(d)evidence, in form and substance reasonably satisfactory to each Purchaser, demonstrating that Seller has obtained all of the Seller's Regulatory Approvals and Seller's Required Consents;
(e)Seller's Title Affidavit, in substantially the form attached hereto as Exhibit F, and any other documents and instruments that may be reasonably required by the Title Insurer in order to issue the Title Policies and the endorsements set forth on Part I of Schedule 6.2(a), in each case duly executed by a duly authorized representative of Seller; provided, that (i) there is no cost to Seller to issue any such endorsements and (ii) Seller shall not be required to incur any additional liability (including providing an additional indemnity to the Title Insurer) in order to cause the Title Insurer to issue any endorsement identified on Part I of Schedule 6.2(a) beyond the liability and indemnity obligations that Seller would otherwise have under the form of Title Affidavit attached as Exhibit F;
(f)a certificate and affidavit of non-foreign status of Seller pursuant to Section 1445 of the Code, in substantially the form attached hereto as Exhibit G, duly executed by a duly authorized representative of Seller (or Seller's tax parent Affiliate, as applicable);
(g)the Post-Closing Confidentiality Agreement, duly executed by a duly authorized representative of Entegra TC and Seller;
(h)an assignment and assumption agreement or deed, as required by the Title Insurer, to effect an insurable transfer to each Project Purchaser all of Seller’s right, title and interest in and to the reversionary interest in favor of Seller contained in that certain Special Warranty Deed from Union Power Partners, L.P. to Quinn Water Association, Inc. filed March 30, 2007 in Book 2007 at Page 3246 in public records of Union County, Arkansas;
(i)evidence reasonably satisfactory to each Project Purchaser that the certain Declaration by Grantee of No Objection and Agreement dated August 31, 2000, by Entergy Arkansas, Inc. and Union Power Partners, L.P., recorded in the public records of Union County, Arkansas on September 7, 2000, in Deed Book 2000 at Page 7646 has been assigned to the Union County Water Conservation Board; and
(j)such other documents and instruments reasonably required by such Purchaser to consummate the Transactions, properly executed by Seller, to the extent required.
Section 3.3. Purchaser Closing Deliverables
. At the Closing, each Purchaser shall deliver, or cause to be delivered, to Seller (and with respect to clauses (a)(i)(A), (a)(ii)(A), (a)(iii)(A), (a)(iv)(A) and (a)(v)(A) below, to the Escrow Agent), the following:
(k)
(i)in the case of PB1 Purchaser, (A) three percent (3%) of the PB1 Estimated Purchase Price (the "PB1 Escrow Amount"), which shall be paid by PB1 Purchaser to the Escrow Agent by wire transfer of immediately available funds for deposit into the PB1 Escrow Account, and (B) the PB1 Purchase Price (in accordance with Section 3.4) minus the PB1 Escrow Amount, which shall be paid by wire transfer of immediately available funds to the account or accounts designated by Seller in writing at least three (3) Business Days prior to the Closing Date,
(ii)in the case of PB2 Purchaser, (A) three percent (3%) of the PB2 Estimated Purchase Price (the "PB2 Escrow Amount"), which shall be paid by PB2 Purchaser to the Escrow Agent by wire transfer of immediately available funds for deposit into the PB2 Escrow Account, and (B) the PB2 Purchase Price minus the PB2 Escrow Amount, which shall be paid by wire transfer of





immediately available funds to the account or accounts designated by Seller in writing at least three (3) Business Days prior to the Closing Date,
(iii)in the case of PB3 Purchaser, (A) three percent (3%) of the PB3 Estimated Purchase Price (the "PB3 Escrow Amount"), which shall be paid by PB3 Purchaser to the Escrow Agent by wire transfer of immediately available funds for deposit into the PB3 Escrow Account, and (B) the PB3 Purchase Price minus the PB3 Escrow Amount, which shall be paid by wire transfer of immediately available funds to the account or accounts designated by Seller in writing at least three (3) Business Days prior to the Closing Date, and
(iv)in the case of PB4 Purchaser, (A) three percent (3%) of the PB4 Estimated Purchase Price (the "PB4 Escrow Amount"), which shall be paid by PB4 Purchaser to the Escrow Agent by wire transfer of immediately available funds for deposit into the PB4 Escrow Account, and (B) the PB4 Purchase Price minus the PB4 Escrow Amount, which shall be paid by wire transfer of immediately available funds to the account or accounts designated by Seller in writing at least three (3) Business Days prior to the Closing Date.
(l)each Ancillary Agreement to which such Purchaser is a party, duly executed by a duly authorized representative of such Purchaser, and each document required to be delivered to Seller by such Purchaser in accordance with the provisions of any Ancillary Agreement, duly executed by a duly authorized representative of such Purchaser, if applicable;
(m)each document required to be delivered to Seller by such Purchaser pursuant to Article VIII;
(n)copies of each Purchasers' Consent obtained by such Purchaser with respect to the sale and purchase of the Purchased Assets or the consummation of the Transactions;
(o)evidence, in form and substance reasonably satisfactory to Seller, demonstrating that such Purchaser has obtained its Purchasers' Regulatory Approvals and Purchasers' Required Consents applicable to such Purchaser;
(p)the Post-Closing Confidentiality Agreement, duly executed by a duly authorized representative of such Purchaser; and
(q)such other documents and instruments reasonably required by Seller to consummate the Transactions, duly executed by a duly authorized representative of such Purchaser, to the extent required.
Section 3.4. Purchase Price
.
(r)The purchase price for the PB1 Purchased Assets shall be:
(i)the Base Purchase Price, if (A) the Trigger Day (PB1) occurs prior to the expiration of Transaction Period 1 or (B) a Seller Condition Failure has occurred and is continuing upon the expiration of the TP1 Closing Delay Period (PB1) or, if there is a TP2 Closing Delay Period (PB1), the expiration of the TP2 Closing Delay Period (PB1);
(ii)the sum of the Base Purchase Price and the TP1 Closing Delay Escalator applicable to PB1 Purchaser, if any, if the Trigger Day (PB1) occurs (A) after the expiration of Transaction Period 1 and (B) on or before the end of the TP1 Closing Delay Period (PB1), (1) the conditions in Section 8.3 (No Restraint) (the satisfaction of which shall, for purposes of this Section 3.4(a), be determined on the basis of whether or not such preliminary or permanent Order is in effect as of the applicable date of determination), Section 8.4(a) (Seller's Regulatory Approvals) and Section 8.4(b) (Seller's Required Consents) have been satisfied or waived by Seller in its sole and absolute discretion and (2) Seller has satisfied Seller's requirements in Section 7.1 (Agreement Compliance), Section 7.5 (Representations and Warranties), Section 7.6 (Officer's Certificate) and Section 7.7(h) (Receipt of Seller's Required Consents) necessary for the Purchasers' conditions to Closing set forth therein to be satisfied; or





(iii)the sum of the Base Purchase Price, the TP1 Closing Delay Escalator applicable to PB1 Purchaser, if any, and the TP2 Closing Delay Escalator applicable to PB1 Purchaser, if any, if the Trigger Day (PB1) occurs (A) after the expiration of Transaction Period 2 and (B) on or before the end of the TP2 Closing Delay Period (PB1), (1) the conditions in Section 8.3 (No Restraint) (the satisfaction of which shall, for purposes of this Section 3.4(a), be determined on the basis of whether or not such preliminary or permanent Order is in effect as of the applicable date of determination), Section 8.4(a) (Seller's Regulatory Approvals) and Section 8.4(b) (Seller's Required Consents) have been satisfied or waived by Seller in its sole and absolute discretion and (2) Seller has satisfied Seller's requirements in Section 7.1 (Agreement Compliance), Section 7.5 (Representations and Warranties), Section 7.6 (Officer's Certificate) and Section 7.7(h) (Receipt of Seller's Required Consents) necessary for the Purchasers' conditions to Closing set forth therein to be satisfied;
the applicable amount, subject to adjustment as provided herein (as adjusted, the "PB1 Purchase Price"); provided, however, that if there is a modification to the PB1 Purchase Price based on the Final Power Block Performance Test Results with respect to PB1 pursuant to Section 6.7, then each of the unadjusted PB1 Purchase Prices set forth in clauses (i), (ii), and (iii) above shall be adjusted in the manner and amounts provided in Section 6.7; and provided, further, that if the Closing is delayed as a result of the occurrence of (i) any Casualty Event (ii) any of the circumstances described in Section 6.7(g) or Section 6.7(l), or (iii) the failure of Seller to satisfy the Power Block Performance Parameters such that PB1 Purchaser has the right to terminate this Agreement pursuant to Section 6.7(k), then, notwithstanding anything to the contrary, the PB1 Purchase Price, prior to any adjustment made herein, shall be the PB1 Purchase Price that would have applied, as determined by this Section 3.4(a), on the date that the Closing would have occurred pursuant to Section 3.1 if such delay had not occurred.
(s)The purchase price for the PB2 Purchased Assets shall be:
(i)the Base Purchase Price, if (A) the Trigger Day (PB2) occurs prior to the expiration of Transaction Period 1 or (B) a Seller Condition Failure has occurred and is continuing upon the expiration of the TP1 Closing Delay Period (PB2) or, if there is a TP2 Closing Delay Period (PB2), the expiration of the TP2 Closing Delay Period (PB2);
(ii)the sum of the Base Purchase Price and the TP1 Closing Delay Escalator applicable to PB2 Purchaser, if any, if the Trigger Day (PB2) occurs (A) after the expiration of Transaction Period 1 and (B) on or before the end of the TP1 Closing Delay Period (PB2), (1) the conditions in Section 8.3 (No Restraint) (the satisfaction of which shall, for purposes of this Section 3.4(b), be determined on the basis of whether or not such preliminary or permanent Order is in effect as of the applicable date of determination), Section 8.4(a) (Seller's Regulatory Approvals) and Section 8.4(b) (Seller's Required Consents) have been satisfied or waived by Seller in its sole and absolute discretion and (2) Seller has satisfied Seller's requirements in Section 7.1 (Agreement Compliance), Section 7.5 (Representations and Warranties), Section 7.6 (Officer's Certificate) and Section 7.7(h) (Receipt of Seller's Required Consents) necessary for the Purchasers' conditions to Closing set forth therein to be satisfied; or
(iii)the sum of the Base Purchase Price, the TP1 Closing Delay Escalator applicable to PB2 Purchaser, if any, and the TP2 Closing Delay Escalator applicable to PB2 Purchaser, if any, if the Trigger Day (PB2) occurs (A) after the expiration of Transaction Period 2 and (B) on or before the end of the TP2 Closing Delay Period (PB2), (1) the conditions in Section 8.3 (No Restraint) (the satisfaction of which shall, for purposes of this Section 3.4(b), be determined on the basis of whether or not such preliminary or permanent Order is in effect as of the applicable date of determination), Section 8.4(a) (Seller's Regulatory Approvals) and Section 8.4(b) (Seller's Required Consents) have been satisfied or waived by Seller in its sole and absolute discretion and (2) Seller has satisfied Seller's requirements in Section 7.1 (Agreement Compliance), Section 7.5 (Representations and Warranties),





Section 7.6 (Officer's Certificate) and Section 7.7(h) (Receipt of Seller's Required Consents) necessary for the Purchasers' conditions to Closing set forth therein to be satisfied;
the applicable amount, subject to adjustment as provided herein (as adjusted, the "PB2 Purchase Price"); provided, however, that if there is a modification to the PB2 Purchase Price based on the Final Power Block Performance Test Results with respect to PB2 pursuant to Section 6.7, then each of the unadjusted PB2 Purchase Prices set forth in clauses (i), (ii), and (iii) above shall be adjusted in the manner and amounts provided in provided in Section 6.7; and provided, further, that if the Closing is delayed as a result of the occurrence of (i) any Casualty Event (ii) any of the circumstances described in Section 6.7(g) or Section 6.7(l), or (iii) the failure of Seller to satisfy the Power Block Performance Parameters such that PB2 Purchaser has the right to terminate this Agreement pursuant to Section 6.7(k), then, notwithstanding anything to the contrary, the PB2 Purchase Price, prior to any adjustment made herein, shall be the PB2 Purchase Price that would have applied, as determined by this Section 3.4(b), on the date that the Closing would have occurred pursuant to Section 3.1 if such delay had not occurred.
(t)The purchase price for the PB3 Purchased Assets shall be:
(i)the Base Purchase Price, if (A) the Trigger Day (PB3) occurs prior to the expiration of Transaction Period 1 or (B) a Seller Condition Failure has occurred and is continuing upon the expiration of the TP1 Closing Delay Period (PB3) or, if there is a TP2 Closing Delay Period (PB3), the expiration of the TP2 Closing Delay Period (PB3);
(ii)the sum of the Base Purchase Price and the TP1 Closing Delay Escalator applicable to PB3 Purchaser, if any, if the Trigger Day (PB3) occurs (A) after the expiration of Transaction Period 1 and (B) on or before the end of the TP1 Closing Delay Period (PB3), (1) the conditions in Section 8.3 (No Restraint) (the satisfaction of which shall, for purposes of this Section 3.4(c), be determined on the basis of whether or not such preliminary or permanent Order is in effect as of the applicable date of determination), Section 8.4(a) (Seller's Regulatory Approvals) and Section 8.4(b) (Seller's Required Consents) have been satisfied or waived by Seller in its sole and absolute discretion and (2) Seller has satisfied Seller's requirements in Section 7.1 (Agreement Compliance), Section 7.5 (Representations and Warranties), Section 7.6 (Officer's Certificate) and Section 7.7(h) (Receipt of Seller's Required Consents) necessary for the Purchasers' conditions to Closing set forth therein to be satisfied; or
(iii)the sum of the Base Purchase Price, the TP1 Closing Delay Escalator applicable to PB3 Purchaser, if any, and the TP2 Closing Delay Escalator applicable to PB3 Purchaser, if any, if the Trigger Day (PB3) occurs (A) after the expiration of Transaction Period 2 and (B) on or before the end of the TP2 Closing Delay Period (PB3), (1) the conditions in Section 8.3 (No Restraint) (the satisfaction of which shall, for purposes of this Section 3.4(c), be determined on the basis of whether or not such preliminary or permanent Order is in effect as of the applicable date of determination), Section 8.4(a) (Seller's Regulatory Approvals) and Section 8.4(b) (Seller's Required Consents) have been satisfied or waived by Seller in its sole and absolute discretion and (2) Seller has satisfied Seller's requirements in Section 7.1 (Agreement Compliance), Section 7.5 (Representations and Warranties), Section 7.6 (Officer's Certificate) and Section 7.7(h) (Receipt of Seller's Required Consents) necessary for the Purchasers' conditions to Closing set forth therein to be satisfied;
the applicable amount, subject to adjustment as provided herein (as adjusted, the "PB3 Purchase Price"); provided, however, that if there is a modification to the PB3 Purchase Price based on the Final Power Block Performance Test Results with respect to PB3 pursuant to Section 6.7, then each of the unadjusted PB3 Purchase Prices set forth in clauses (i), (ii), and (iii) above shall be adjusted in the manner and amounts provided in Section 6.7; and provided, further, that if the Closing is delayed as a result of the occurrence of (i) any Casualty Event (ii) any of the circumstances described in Section 6.7(g) or Section 6.7(l), or (iii) the failure of Seller to satisfy the Power Block Performance Parameters such that PB3 Purchaser has the right to terminate this Agreement pursuant to Section 6.7(k), then, notwithstanding anything to the contrary, the





PB3 Purchase Price, prior to any adjustment made herein, shall be the PB3 Purchase Price that would have applied, as determined by this Section 3.4(c), on the date that the Closing would have occurred pursuant to Section 3.1 if such delay had not occurred.
(u)The purchase price for the PB4 Purchased Assets shall be:
(i)the Base Purchase Price, if (A) the Trigger Day (PB4) occurs prior to the expiration of Transaction Period 1 or (B) a Seller Condition Failure has occurred and is continuing upon the expiration of the TP1 Closing Delay Period (PB4) or, if there is a TP2 Closing Delay Period (PB4), the expiration of the TP2 Closing Delay Period (PB4);
(ii)the sum of the Base Purchase Price and the TP1 Closing Delay Escalator applicable to PB4 Purchaser, if any, if the Trigger Day (PB4) occurs (A) after the expiration of Transaction Period 1 and (B) on or before the end of the TP1 Closing Delay Period (PB4), (1) the conditions in Section 8.3 (No Restraint) (the satisfaction of which shall, for purposes of this Section 3.4(d), be determined on the basis of whether or not such preliminary or permanent Order is in effect as of the applicable date of determination), Section 8.4(a) (Seller's Regulatory Approvals) and Section 8.4(b) (Seller's Required Consents) have been satisfied or waived by Seller in its sole and absolute discretion and (2) Seller has satisfied Seller's requirements in Section 7.1 (Agreement Compliance), Section 7.5 (Representations and Warranties), Section 7.6 (Officer's Certificate) and Section 7.7(h) (Receipt of Seller's Required Consents) necessary for the Purchasers' conditions to Closing set forth therein to be satisfied; or
(iii)the sum of the Base Purchase Price, the TP1 Closing Delay Escalator applicable to PB4 Purchaser, if any, and the TP2 Closing Delay Escalator applicable to PB4 Purchaser, if any, if the Trigger Day (PB4) occurs (A) after the expiration of Transaction Period 2 and (B) on or before the end of the TP2 Closing Delay Period (PB4), (1) the conditions in Section 8.3 (No Restraint) (the satisfaction of which shall, for purposes of this Section 3.4(d), be determined on the basis of whether or not such preliminary or permanent Order is in effect as of the applicable date of determination), Section 8.4(a) (Seller's Regulatory Approvals) and Section 8.4(b) (Seller's Required Consents) have been satisfied or waived by Seller in its sole and absolute discretion and (2) Seller has satisfied Seller's requirements in Section 7.1 (Agreement Compliance), Section 7.5 (Representations and Warranties), Section 7.6 (Officer's Certificate) and Section 7.7(h) (Receipt of Seller's Required Consents) necessary for the Purchasers' conditions to Closing set forth therein to be satisfied;
the applicable amount, subject to adjustment as provided herein (as adjusted, the "PB4 Purchase Price"); provided, however, that if there is a modification to the PB4 Purchase Price based on the Final Power Block Performance Test Results with respect to PB4 pursuant to Section 6.7, then each of the unadjusted PB4 Purchase Prices set forth in clauses (i), (ii), and (iii) above shall be adjusted in the manner and amounts provided in Section 6.7; and provided, further, that if the Closing is delayed as a result of the occurrence of (i) any Casualty Event (ii) any of the circumstances described in Section 6.7(g) or Section 6.7(l), or (iii) the failure of Seller to satisfy the Power Block Performance Parameters such that PB4 Purchaser has the right to terminate this Agreement pursuant to Section 6.7(k), then, notwithstanding anything to the contrary, the PB4 Purchase Price, prior to any adjustment made herein, shall be the PB4 Purchase Price that would have applied, as determined by this Section 3.4(d), on the date that the Closing would have occurred pursuant to Section 3.1 if such delay had not occurred.
Section 3.5. Inventory and Major Maintenance Spares Adjustments
.
(v) The Parties agree that the PB1 Purchase Price assumes that the aggregate value of the PB1 Purchased Inventory included in the PB1 Purchase Price is One Million Four Hundred and Twenty Five Thousand Dollars ($1,425,000) (the "PB1 Baseline Inventory Value"). The PB1





Purchase Price shall be adjusted by the difference between the PB1 Baseline Inventory Value and the aggregate value of the PB1 Purchased Inventory as of the Closing (the "PB1 Closing Inventory Value"). The PB1 Closing Inventory Value shall be determined in the same manner as the PB1 Baseline Inventory Value (i.e., based on the lower of cost or market value and otherwise consistent with Seller's past practices). The PB1 Purchase Price shall be (i) increased by the amount by which the PB1 Closing Inventory Value exceeds the PB1 Baseline Inventory Value or (ii) decreased by the amount by which the PB1 Closing Inventory Value is less than the PB1 Baseline Inventory Value; provided, however, that there shall be no adjustment to the PB1 Purchase Price under this Section 3.5(a) unless the difference between the PB1 Baseline Inventory Value and the PB1 Closing Inventory Value exceeds one percent (1%) of the PB1 Baseline Inventory Value.
(w)The Parties agree that the PB1 Purchase Price shall be increased by (i) if PB1 Purchaser exercises its right to purchase the PB1 Major Maintenance Spares at the Closing in accordance with Section 2.21(c) or Section 2.21(e), as applicable, the book value of the PB1 Purchased Major Maintenance Spares as set forth on Schedule MMS-1, (ii) if the Project Purchasers exercise their right to purchase the Common Facilities Major Maintenance Spares at the Closing in accordance with Section 2.21(c) or Section 2.21(e), as applicable, twenty-five percent (25%) of the book value of the Common Facilities Purchased Major Maintenance Spares as set forth on Schedule MMS-5, (iii) if PB1 Purchaser agrees to purchase, and Seller agrees to sell, some, but not all, of the PB1 Major Maintenance Spares at the Closing in accordance with Section 2.21(e), the price mutually agreed to by PB1 Purchaser and Seller and (iv) if the Project Purchasers agree to purchase, and Seller agrees to sell, some, but not all, of the Common Facilities Major Maintenance Spares at the Closing in accordance with Section 2.21(f), twenty-five percent (25%) of the price mutually agreed to by the Project Purchasers and Seller for such Common Facilities Major Maintenance Spares.
(x)The Parties agree that the PB2 Purchase Price assumes that the aggregate value of the PB2 Purchased Inventory included in the PB2 Purchase Price is One Million Four Hundred and Twenty Five Thousand Dollars ($1,425,000) (the "PB2 Baseline Inventory Value"). The PB2 Purchase Price shall be adjusted by the difference between the PB2 Baseline Inventory Value and the aggregate value of the PB2 Purchased Inventory as of the Closing (the "PB2 Closing Inventory Value"). The PB2 Closing Inventory Value shall be determined in the same manner as the PB2 Baseline Inventory Value (i.e., based on the lower of cost or market and otherwise consistent with Seller's past practices). The PB2 Purchase Price shall be (i) increased by the amount by which the PB2 Closing Inventory Value exceeds the PB2 Baseline Inventory Value or (ii) decreased by the amount by which the PB2 Closing Inventory Value is less than the PB2 Baseline Inventory Value; provided, however, that there shall be no adjustment to the PB2 Purchase Price under this Section 3.5 unless the difference between the PB2 Baseline Inventory Value and the PB2 Closing Inventory Value exceeds one percent (1%) of the PB2 Baseline Inventory Value.
(y)The Parties agree that the PB2 Purchase Price shall be increased by (i) if PB2 Purchaser exercises its right to purchase the PB2 Major Maintenance Spares at the Closing in accordance with Section 2.21(c) or Section 2.21(e), as applicable, the book value of the PB2 Purchased Major Maintenance Spares as set forth on Schedule MMS-2, (ii) if the Project Purchasers exercise their right to purchase the Common Facilities Major Maintenance Spares at the Closing in accordance with Section 2.21(c) or Section 2.21(e), as applicable, twenty-five percent (25%) of the book value of the Common Facilities Purchased Major Maintenance Spares as set forth on Schedule MMS-5, (iii) if PB2 Purchaser agrees to purchase, and Seller agrees to sell, some, but not all, of the PB2 Major Maintenance Spares at the Closing in accordance with Section 2.21(e), the price mutually agreed to by PB2 Purchaser and Seller and (iv) if the Project Purchasers agree to purchase, and Seller agrees to sell, some, but not all, of the Common Facilities Major Maintenance Spares at the Closing in accordance with Section 2.21(f), twenty-five percent (25%) of the price mutually agreed to by the Project Purchasers and Seller for such Common Facilities Major Maintenance Spares.
(z)The Parties agree that the PB3 Purchase Price assumes that the aggregate value of the PB3 Purchased Inventory included in the PB3 Purchase Price is One Million Four Hundred and Twenty Five Thousand Dollars ($1,425,000) (the "PB3 Baseline Inventory Value"). The PB3 Purchase Price shall be





adjusted by the difference between the PB3 Baseline Inventory Value and the aggregate value of the PB3 Purchased Inventory as of the Closing (the "PB3 Closing Inventory Value"). The PB3 Closing Inventory Value shall be determined in the same manner as the PB3 Baseline Inventory Value (i.e., based on the lower of cost or market and otherwise consistent with Seller's past practices). The PB3 Purchase Price shall be (i) increased by the amount by which the PB3 Closing Inventory Value exceeds the PB3 Baseline Inventory Value or (ii) decreased by the amount by which the PB3 Closing Inventory Value is less than the PB3 Baseline Inventory Value; provided, however, that there shall be no adjustment to the PB3 Purchase Price under this Section 3.5 unless the difference between the PB3 Baseline Inventory Value and the PB3 Closing Inventory Value exceeds one percent (1%) of the PB3 Baseline Inventory Value.
(aa)The Parties agree that the PB3 Purchase Price shall be increased by (i) if PB3 Purchaser exercises its right to purchase the PB3 Major Maintenance Spares at the Closing in accordance with Section 2.21(c) or Section 2.21(e), as applicable, the book value of the PB3 Purchased Major Maintenance Spares as set forth on Schedule MMS-3, (ii) if the Project Purchasers exercise their right to purchase the Common Facilities Major Maintenance Spares at the Closing in accordance with Section 2.21(c) or Section 2.21(e), as applicable, twenty-five percent (25%) of the book value of the Common Facilities Purchased Major Maintenance Spares as set forth on Schedule MMS-5, (iii) if PB3 Purchaser agrees to purchase, and Seller agrees to sell, some, but not all, of the PB3 Major Maintenance Spares at the Closing in accordance with Section 2.21(e), the price mutually agreed to by PB3 Purchaser and Seller and (iv) if the Project Purchasers agree to purchase, and Seller agrees to sell, some, but not all, of the Common Facilities Major Maintenance Spares at the Closing in accordance with Section 2.21(f), twenty-five percent (25%) of the price mutually agreed to by the Project Purchasers and Seller for such Common Facilities Major Maintenance Spares.
(ab)The Parties agree that the PB4 Purchase Price assumes that the aggregate value of the PB4 Purchased Inventory included in the PB4 Purchase Price is One Million Four Hundred and Twenty Five Thousand Dollars ($1,425,000) (the "PB4 Baseline Inventory Value"). The PB4 Purchase Price shall be adjusted by the difference between the PB4 Baseline Inventory Value and the aggregate value of the PB4 Purchased Inventory as of the Closing (the "PB4 Closing Inventory Value"). The PB4 Closing Inventory Value shall be determined in the same manner as the PB4 Baseline Inventory Value (i.e., based on the lower of cost or market and otherwise consistent with Seller's past practices). The PB4 Purchase Price shall be (i) increased by the amount by which the PB4 Closing Inventory Value exceeds the PB4 Baseline Inventory Value or (ii) decreased by the amount by which the PB4 Closing Inventory Value is less than the PB4 Baseline Inventory Value; provided, however, that there shall be no adjustment to the PB4 Purchase Price under this Section 3.5 unless the difference between the PB4 Baseline Inventory Value and the PB4 Closing Inventory Value exceeds one percent (1%) of the PB4 Baseline Inventory Value.
(ac)The Parties agree that the PB4 Purchase Price shall be increased by (i) if PB4 Purchaser exercises its right to purchase the PB4 Major Maintenance Spares at the Closing in accordance with Section 2.21(c) or Section 2.21(e), as applicable, the book value of the PB4 Purchased Major Maintenance Spares as set forth on Schedule MMS-3, (ii) if the Project Purchasers exercise their right to purchase the Common Facilities Major Maintenance Spares at the Closing in accordance with Section 2.21(c) or Section 2.21(e), as applicable, twenty-five percent (25%) of the book value of the Common Facilities Purchased Major Maintenance Spares as set forth on Schedule MMS-5, (iii) if PB4 Purchaser agrees to purchase, and Seller agrees to sell, some, but not all, of the PB4 Major Maintenance Spares at the Closing in accordance with Section 2.21(e), the price mutually agreed to by PB4 Purchaser and Seller and (iv) if the Project Purchasers agree to purchase, and Seller agrees to sell, some, but not all, of the Common Facilities Major Maintenance Spares at the Closing in accordance with Section 2.21(f), twenty-five percent (25%) of the price mutually agreed to by the Project Purchasers and Seller for such Common Facilities Major Maintenance Spares.
(ad)The Parties acknowledge and agree that there is no PB1 Purchased Inventory, PB2 Purchased Inventory, PB3 Purchased Inventory or PB4 Purchased Inventory other than the twenty-five percent (25%) undivided interest in the Common Facilities Inventory and, as such, all adjustments to the Purchase





Price under clauses (a), (c), (e) and (g) of this Section 3.5 shall be made on the basis of the value of such Common Facilities Inventory.
Section 3.6. Proratable Items and Prepaid Items
.
(ae)Except as otherwise provided in this Agreement, each Proratable Item, if any, shall be prorated between Seller and the applicable Purchaser as of the Closing without any duplication of payment under the Purchased Contracts, the Purchased Licenses, this Agreement or otherwise. Seller shall be solely responsible and liable for the portion of any Proratable Item related to the time period (Tax year period for a Proratable Tax Item) ending prior to the Closing (measured by calendar days for a Proratable Tax Item). Each Purchaser shall be solely responsible and liable for the portion of any such Proratable Item with respect to any Purchased Asset of which it is the purchaser related to the time period (Tax year period for a Proratable Tax Item) after the Closing (measured by calendar days for a Proratable Tax Item); provided, however, that, notwithstanding anything to the contrary herein, (i) PB1 Purchaser shall not be responsible or liable for or receive any amount under this Section 3.6 that constitutes a PB1 Excluded Liability, a PB1 Excluded Asset, a Common Facilities Excluded Liability or a Common Facilities Excluded Asset, (ii) PB2 Purchaser shall not be responsible or liable for or receive any amount under this Section 3.6 that constitutes a PB2 Excluded Liability, a PB2 Excluded Asset, a Common Facilities Excluded Liability or a Common Facilities Excluded Asset, (iii) PB3 Purchaser shall not be responsible or liable for or receive any amount under this Section 3.6 that constitutes a PB3 Excluded Liability, a PB3 Excluded Asset, a Common Facilities Excluded Liability or a Common Facilities Excluded Asset and (iv) PB4 Purchaser shall not be responsible or liable for or receive any amount under this Section 3.6 that constitutes a PB4 Excluded Liability, a PB4 Excluded Asset, a Common Facilities Excluded Liability or a Common Facilities Excluded Asset. In the case of a Proratable Non-Tax Item that is subject to graduated pricing based on volumes, the proration for such Proratable Non-Tax Item shall be based on the average unit price during the applicable time period.
(af)The Parties agree that the PB1 Purchase Price shall be increased by the aggregate amount of PB1 Prepaid Items.
(ag)The Parties agree that the PB2 Purchase Price shall be increased by the aggregate amount of PB2 Prepaid Items.
(ah)The Parties agree that the PB3 Purchase Price shall be increased by the aggregate amount of PB3 Prepaid Items.
(ai)The Parties agree that the PB4 Purchase Price shall be increased by the aggregate amount of PB4 Prepaid Items.
(aj)The Parties agree that the Common Facilities Purchase Price shall be increased by the aggregate amount of Common Facilities Prepaid Items.
Section 3.7. Other Purchase Price Adjustments
. In addition to the adjustments contemplated by Section 3.4, Section 3.5 and Section 3.6, the PB1 Purchase Price, the PB2 Purchase Price, the PB3 Purchase Price and the PB4 Purchase Price shall be adjusted in accordance with Section 3.8 and as contemplated by other provisions of this Agreement or any Ancillary Agreement, including Section 6.7(k), Section 6.7(k)(ii), Section 6.19(f), Section 6.22, Section 6.24(d), Section 6.24(e), Section 6.25(d), Section 6.25(e), Section 6.26(d), Section 6.26(e), Section 6.27(d), Section 6.27(e), Section 6.28(d), Section 6.28(e) and (for tax purposes) Section 9.13. Outstanding amounts payable between the Parties pursuant to Section 6.2 shall be netted and added to, if a Purchaser is the net payor, or debited from, if Seller is the net payor, the PB1 Purchase Price, the PB2 Purchase Price, the PB3 Purchase Price or the PB4 Purchase Price, as applicable, at the Closing.





Section 3.8. Procedures for Closing and Post-Closing Adjustments
.
(ak)All adjustments to the PB1 Purchase Price, the PB2 Purchase Price, the PB3 Purchase Price and the PB4 Purchase Price pursuant to Section 3.5 and Section 3.6 shall be based upon the applicable amounts accrued through the Closing or paid for the most recent year or other appropriate period for which such amounts paid are available. At least thirty (30) but not more than forty (40) days prior to the then anticipated Closing Date, Seller shall prepare and deliver to each Purchaser an estimated closing statement (the estimated closing statement with respect to the PB1 Purchase Price "PB1 Estimated Closing Statement", the estimated closing statement with respect to the PB2 Purchase Price "PB2 Estimated Closing Statement", the estimated closing statement with respect to the PB3 Purchase Price "PB3 Estimated Closing Statement", and the estimated closing statement with respect to the PB4 Purchase Price "PB4 Estimated Closing Statement") that includes and sets forth the actual amounts as of the Closing Date of the adjustments required by this Agreement to the PB1 Purchase Price, the PB2 Purchase Price, the PB3 Purchase Price and the PB4 Purchase Price or, if and to the extent the actual amounts are unavailable, Seller's reasonable best estimate of all adjustments to the PB1 Purchase Price, the PB2 Purchase Price, the PB3 Purchase Price and the PB4 Purchase Price required by this Agreement to be made as of the Closing using the best available information (such adjustment to the PB1 Purchase Price, as may be modified under this Section 3.8, the "PB1 Estimated Closing Adjustment", such adjustment to the PB2 Purchase Price, as may be modified under this Section 3.8, the "PB2 Estimated Closing Adjustment", such adjustment to the PB3 Purchase Price, as may be modified under this Section 3.8, the "PB3 Estimated Closing Adjustment", and such adjustment to the PB4 Purchase Price, as may be modified under this Section 3.8, the "PB4 Estimated Closing Adjustment". No later than twenty (20) days after a Purchaser's receipt of the applicable Estimated Closing Statement(s), such Purchaser shall provide to Seller its good faith objections, if any, to the Estimated Closing Adjustments in writing. If any Purchaser objects to any Estimated Closing Adjustment within such period, Seller and such Purchaser shall attempt to resolve their differences by good faith negotiation. If such Purchaser and Seller are unable to reach resolution prior to the anticipated Closing Date or if a Purchaser does not timely object to an Estimated Closing Adjustment as provided above, the PB1 Purchase Price shall be adjusted at the Closing by the amount of the PB1 Estimated Closing Adjustment, the PB2 Purchase Price shall be adjusted at the Closing by the amount of the PB2 Estimated Closing Adjustment, the PB3 Purchase Price shall be adjusted at the Closing by the amount of the PB3 Estimated Closing Adjustment and the PB4 Purchase Price shall be adjusted at the Closing by the amount of the PB4 Estimated Closing Adjustment, as applicable, in each case, as modified to reflect any agreement reached between the applicable Purchaser and Seller on any item in dispute. The PB1 Purchase Price as adjusted by the PB1 Estimated Closing Adjustment or such other amount agreed to by PB1 Purchaser and Seller shall be the "PB1 Estimated Purchase Price", the PB2 Purchase Price as adjusted by the PB2 Estimated Closing Adjustment or such other amount agreed to by PB2 Purchaser and Seller shall be the "PB2 Estimated Purchase Price", the PB3 Purchase Price as adjusted by the PB3 Estimated Closing Adjustment or such other amount agreed to by PB3 Purchaser and Seller shall be the "PB3 Estimated Purchase Price", and the PB4 Purchase Price as adjusted by the PB4 Estimated Closing Adjustment or such other amount agreed to by PB4 Purchaser and Seller shall be the "PB4 Estimated Purchase Price".
(al)On or before seventy-five (75) days after the Closing Date, each Purchaser shall prepare and deliver to Seller a final closing statement (the statement related to the PB1 Purchase Price, the "PB1 Post-Closing Statement", the statement related to the PB2 Purchase Price, the "PB2 Post-Closing Statement", the statement related to the PB3 Purchase Price, the "PB3 PostClosing Statement", and the statement related to the PB4 Purchase Price, the "PB4 PostClosing Statement") setting forth such Purchaser's





determination of all adjustments to the PB1 Purchase Price, the PB2 Purchase Price, the PB3 Purchase Price and the PB4 Purchase Price, as applicable, required by this Agreement to be made as of the Closing to the extent not reflected in the PB1 Estimated Purchase Price, the PB2 Estimated Purchase Price, the PB3 Estimated Purchase Price or the PB4 Estimated Purchase Price, as applicable (the proposed adjustment to be made as of the Closing to the PB1 Purchase Price, the "PB1 Proposed PostClosing Adjustment", the proposed adjustment to be made as of the Closing to the PB2 Purchase Price, the "PB2 Proposed Post-Closing Adjustment", the proposed adjustment to be made as of the Closing to the PB3 Purchase Price, the "PB3 Proposed Post-Closing Adjustment", and the proposed adjustment to be made as of the Closing to the PB4 Purchase Price, the "PB4 Proposed Post-Closing Adjustment"); provided, however, that any post-Closing adjustment with respect to a Proratable Tax Item or another item for which a Purchaser, despite its use of Commercially Reasonable Efforts, has not received the information necessary for determination of the actual adjustment shall be made on or before thirty (30) days after such Purchaser's receipt of the information necessary to render a final post-Closing adjustment for such Proratable Tax Item or other item and shall otherwise be subject to the procedures set forth in this Section 3.8. Each Post-Closing Statement shall be prepared using the identical (when possible) or substantially the same (when not) accounting principles, policies, methods and procedures as Seller used in connection with the calculation or determination of the items reflected on the applicable Estimated Closing Statement.
(am)Each Party shall furnish promptly, and cause its Representatives to furnish promptly, to any other Party and its Representatives any and all documents, material, data and other information reasonably requested by such other Party in connection with the calculation or determination of any item reflected (or that should have been reflected) in any Estimated Closing Adjustment or Post-Closing Statement, as applicable, and, to the extent reasonably necessary, allow prompt, reasonable access of such other Party and its Representatives to programs and software used to prepare the Estimated Closing Adjustments, the Post-Closing Statements and information relating thereto.
(an)On or before thirty (30) days after the applicable Purchaser's delivery of the Post-Closing Statements to Seller, Seller may object in good faith to any Proposed PostClosing Adjustment in writing, stating in reasonable detail each of its objections thereto and the basis therefor and its proposed calculation of any disputed adjustment. If and to the extent Seller does not dispute or timely object to an amount in, as applicable (i) the PB1 Proposed PostClosing Adjustment, the PB1 Estimated Purchase Price shall be further adjusted (the "PB1 Initial Post-Closing Adjustment") by the amount in the PB1 Proposed Post-Closing Adjustment not in dispute or not timely objected to, (ii) the PB2 Proposed Post-Closing Adjustment, the PB2 Estimated Purchase Price shall be further adjusted (the "PB2 Initial Post-Closing Adjustment") by the amount in the PB2 Proposed Post-Closing Adjustment not in dispute or not timely objected to, (iii) the PB3 Proposed Post-Closing Adjustment, the PB3 Estimated Purchase Price shall be further adjusted (the "PB3 Initial Post-Closing Adjustment") by the amount in the PB3 Proposed Post-Closing Adjustment not in dispute or not timely objected to, or (iv) the PB4 Proposed Post-Closing Adjustment, the PB4 Estimated Purchase Price shall be further adjusted (the "PB4 Initial Post-Closing Adjustment") by the amount in the PB4 Proposed Post-Closing Adjustment not in dispute or not timely objected to. Each Initial Post-Closing Adjustment shall be effective as of the earlier of the date a Purchaser receives Seller's written objections to such Proposed Post-Closing Adjustment or the date such objections are due and not provided.
(ao)If Seller objects in good faith to a Proposed Post-Closing Adjustment as provided above, Seller and the applicable Purchaser shall attempt to resolve all such objections by good faith negotiation. If Seller and the applicable Purchaser are able to resolve any such objection with respect to (i) the PB1 Proposed Post-Closing Adjustment, the PB1 Purchase Price shall be promptly adjusted, (ii) the PB2 Proposed Post-Closing Adjustment, the PB2 Purchase Price shall be promptly adjusted, (iii) the PB3 Proposed Post-Closing Adjustment, the PB3 Purchase Price shall be promptly adjusted or (iv) the PB4 Proposed Post-Closing Adjustment, the PB4 Purchase Price shall be promptly adjusted, as applicable, in each case, in accordance with Section 3.8(g). If Seller and the applicable Purchaser are unable to resolve any such





objection after the lapse of forty-five (45) days after such Purchaser's delivery to Seller of each Proposed Post-Closing Adjustment, then Seller or the applicable Purchaser may submit in writing its proposed adjustments of the PB1 Estimated Purchase Price, the PB2 Estimated Purchase Price, the PB3 Estimated Purchase Price or the PB4 Estimated Purchase Price, as applicable, to the Independent Accounting Firm. Each such proposed adjustment shall be materially in accordance with the most recent proposed adjustment made by such Party to the other Party during their good faith negotiations over the item in dispute. In addition, Seller and the applicable Purchaser shall submit such calculations, materials, memoranda, arguments, briefs and evidence in support of their respective positions, and in accordance with such procedures, as the Independent Accounting Firm may require or determine.
(ap)On or before twenty (20) Business Days following the due date of such submissions, as to each adjustment of the PB1 Estimated Purchase Price, the PB2 Estimated Purchase Price, the PB3 Estimated Purchase Price or the PB4 Estimated Purchase Price, as applicable, in dispute, the Independent Accounting Firm shall select, for each adjustment of the PB1 Estimated Purchase Price, the PB2 Estimated Purchase Price, the PB3 Estimated Purchase Price or the PB4 Estimated Purchase Price, as applicable, in dispute, an adjustment of the PB1 Estimated Purchase Price, the PB2 Estimated Purchase Price, the PB3 Estimated Purchase Price or the PB4 Estimated Purchase Price, as applicable, proposed by one of the Parties. The Independent Accounting Firm shall have no authority to alter any such proposal in any way absent manifest error. Each such determination by the Independent Accounting Firm shall be final, binding and conclusive on the applicable Parties as to such adjustments of the PB1 Estimated Purchase Price, the PB2 Estimated Purchase Price, the PB3 Estimated Purchase Price or the PB4 Estimated Purchase Price, as applicable, for all purposes and shall not be subject to any further challenge of any kind by the applicable Parties.
(aq)Upon the determination of the appropriate adjustments, the applicable Purchaser and Seller shall effectuate such adjustments by including them in the payments to occur at the Closing or, if such adjustments result in payments being due from one Party to the other after the Closing, by the Party from whom such payment is due delivering the payment to the other Party no later than two (2) Business Days after such determination, in immediately available funds or in any other manner as reasonably requested by the payee, together with interest thereon from the Closing Date to the date of payment at a variable rate of interest equal to the "prime rate" as published in The Wall Street Journal from time to time during the applicable period.
(ar)Subject to the foregoing, the Independent Accounting Firm may determine the issues in dispute following such procedures, consistent with the provisions of this Agreement, as it deems appropriate and with reference to the amounts in issue. The applicable Purchaser and Seller do not intend to impose any particular procedures upon the Independent Accounting Firm, it being the desire of the Parties that any such disagreement shall be resolved as expeditiously and inexpensively as reasonably practicable. Each Party shall provide the Independent Accounting Firm with such access to documents and personnel as the Independent Accounting Firm may reasonably request and otherwise shall cooperate with the Independent Accounting Firm in the conduct of its work under this Section 3.8; provided, however, that a Party shall have no obligation to provide the Independent Accounting Firm access to any information protected by legal privilege. The Parties agree that the Independent Accounting Firm shall have no liability to the Parties in connection with services, except for acts of bad faith, willful misconduct or gross negligence, and the Parties shall provide such indemnities to the Independent Accounting Firm as it may reasonably request consistent with the foregoing.
(as)The fees and disbursements of the Independent Accounting Firm with respect to a given dispute between Seller and a Purchaser shall be paid one-half by Seller and one-half by such Purchaser.
Section 3.9. Allocation of Purchase Price
. Project Purchasers and Seller shall use their Commercially Reasonable Efforts to jointly agree within one hundred eighty (180) days after the Closing Date to an allocation of the PB1 Purchase Price, the PB2 Purchase Price, the PB3 Purchase Price and the PB4 Purchase Price (and any liabilities properly





included therein for tax purposes) among the Purchased Assets that is consistent with the allocation methodology provided by Section 1060 of the Code (the "Allocation"). Notwithstanding the foregoing, in the event any Project Purchaser and Seller cannot agree as to the Allocation, each Party shall be entitled to take its own position in any Tax Return, Tax proceeding or audit.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants (on its own behalf and, where applicable, on behalf of its Affiliates) to each Purchaser, as of the Effective Date and the Closing Date, as follows:
Section 4.1.Organization and Existence
. Seller is a limited partnership, duly formed, validly existing and in good standing under the Laws of the State of Delaware, and has all requisite power and authority to own, use, lease and operate its properties and to carry on its business as now being conducted. Seller is duly qualified to do business and is in good standing in the State of Arkansas and each other jurisdiction in which the properties owned, leased or operated by it or the nature of the business conducted by it makes such qualification necessary, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Seller.
Section 4.2. Execution, Delivery and Enforceability
. Each of Seller and each of its Affiliates has all requisite power and authority to execute and deliver, and perform its obligations under, this Agreement and the Ancillary Agreements to which Seller or such Affiliate, as applicable, is or becomes a party and to consummate the Transactions. The execution and delivery by Seller and each of its Affiliates of this Agreement and the Ancillary Agreements to which Seller or such Affiliate is or becomes a party, and, the performance by Seller or such Affiliate of its obligations hereunder and thereunder and the consummation by Seller or such Affiliate of the Transactions have been duly and validly authorized by all necessary corporate or partnership action required by Seller or such Affiliate, and no other acts, approvals or corporate or partnership proceedings on its part or on the part of the holders of Seller's or such Affiliate's equity or ownership interests or debt securities or any other Person are necessary to authorize the same. Assuming the due authorization, execution and delivery by each Purchaser of this Agreement and the Ancillary Agreements to which such Purchaser is or becomes a party, this Agreement constitutes, and each Ancillary Agreement to which each of Seller and each of its Affiliates is or becomes a party when executed and delivered by Seller or such Affiliate, as applicable, shall constitute, the valid and legally binding obligations of Seller or such Affiliate, as applicable, enforceable against Seller or such Affiliate, as applicable, in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application relating to or affecting the enforcement of creditors' rights and by general equitable principles.
Section 4.3. No Violation
. Assuming receipt of the Seller's Consents set forth in Part I of Schedule 4.3, the Seller's Regulatory Approvals set forth in Part II of Schedule 4.3, the additional Consents and notices set forth in Part III of Schedule 4.3 and Purchasers' Regulatory Approvals, and assuming the expiration or termination of the applicable waiting period under the HSR Act and receipt of the FERC 203 Authorization, neither the execution and delivery by Seller or any of its Affiliates of this Agreement or any of the Ancillary Agreements to which Seller or such Affiliate is or becomes a party nor Seller's or such Affiliate's performance or compliance with any provision hereof or thereof, nor Seller's or such Affiliate's consummation of the Transactions will:
(a)violate, conflict with or result in a breach of any of the provisions of the Organizational Documents of Seller or such Affiliate;





(b)conflict with, result in a breach of, constitute (with due notice or lapse of time or both) a default, or give rise to any right of termination, purchase, first refusal, cancellation, acceleration or guaranteed payment, in each case under the terms, conditions or provisions of any (i) Contract or license or similar right relating to Intellectual Property to which Seller or such Affiliate is a party or to which any of the Purchased Assets are subject or (ii) any Material Project Contract;
(c)result in a material violation, conflict or breach of any Law or Permit applicable to Seller or such Affiliate, any of the Purchased Assets or the Business; or
(d)result in the creation or imposition of, or give any Person (other than Purchasers) the right to create or impose, any Encumbrance, other than a Permitted Encumbrance, upon any of the Purchased Assets,
except, in the case of sub-clause (i) of clause (b) above, for such conflicts, breaches, or defaults (or rights of termination, purchase, first refusal, cancellation, acceleration or guaranteed payment) which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Seller.
Section 4.4. Compliance with Laws
. Except as set forth in Schedule 4.4, Seller is not in material violation of any Law applicable to Seller, the Purchased Assets or the conduct of the Business; provided, that the only representations and warranties made with respect to the absence of any violation by Seller of any (a) Environmental Law applicable to Seller, the Purchased Assets or the Business are set forth in Section 4.15, (b) Tax Law applicable to Seller, the Purchased Assets or the Business are set forth in Section 4.16, (c) building, zoning, administrative, occupational safety or health Laws applicable to the Project Real Property (other than the absence of any violation by Seller of any Environmental Law, which are set forth in Section 4.15) are set forth in Section 4.7, (d) Laws relating to employment and employment practices, wages and hours, labor relations, workers' compensation, safety, discrimination, harassment, retaliation, affirmative action, hiring and firing, immigration, employment Contracts, leave, reasonable accommodation, severance, privacy, medical privacy, unemployment, and all other terms, conditions or practices of employment or the workplace applicable to the Project Employees are set forth in Section 4.18; and (e) employee benefit Laws applicable to the Employee Plans are set forth in Section 4.17.
Section 4.5. Bankruptcy Matters
. Seller is not Bankrupt and there are no claims or proceedings pending or being contemplated by Seller, or, to Seller's Knowledge, threatened against Seller, that could reasonably be expected to result in Seller being Bankrupt.
Section 4.6. Litigation
.
(e)Except as set forth in Schedule 4.6(a), there is no Action pending or, to Seller's Knowledge, threatened against or involving Seller or any of its Affiliates before or being conducted by any Governmental Authority or arbitrator relating to the Purchased Assets or the conduct of the Business, or the consummation of any of the Transactions, and, to Seller's Knowledge, Seller is not under investigation by a Governmental Authority with respect to the Purchased Assets or the Business, in each case that, individually or in the aggregate, would reasonably be expected to result, or has resulted, in (A) the institution of legal proceedings to prohibit or restrain the performance by Seller or any of its Affiliates of its obligations under this Agreement or any of the Ancillary Agreements or the consummation of the Transactions, (B) a claim against any Purchaser or any Affiliate of any Purchaser for damages as a result of Seller or any of its Affiliates entering into this Agreement or any of the Ancillary Agreements or the consummation of the Transactions, (C) a material delay in or material impairment of Seller's or any of its Affiliates' performance of its obligations under this Agreement or any of the Ancillary Agreements to which it is a party or a material impairment of the





authority, right or ability of Seller to consummate the Transactions, (D) a Material Adverse Effect, or (E) the imposition of an Encumbrance other than a Permitted Encumbrance upon any of the Purchased Assets; provided that the only representations and warranties made with respect to any Action relating to (i) Environmental Law applicable to Seller, the Purchased Assets or the Business, are set forth in Section 4.15, (ii) the assessment or collection of any material Tax relating to the Business or the Project, are set forth in Section 4.16, (iii) the exercise of eminent domain or similar right over or with respect to all or any portion of the Project Real Property are set forth in Section 4.7, (iv) Laws relating to employment and employment practices, wages and hours, labor relations, workers' compensation, safety, discrimination, harassment, retaliation, affirmative action, hiring and firing, employee benefits, immigration, employment Contracts, leave, reasonable accommodation, severance, privacy, medical privacy, unemployment, and all other terms, conditions or practices of employment or the workplace applicable to the Project Employees are set forth in Section 4.18, and (v) any Employee Plans are set forth in Section 4.17.
(f)Except as set forth in Schedule 4.6(b), there is no Order enjoining Seller from engaging in or continuing any conduct or practice, or requiring Seller to take any material action, in connection with the Purchased Assets or the Business, and neither Seller nor any of its Affiliates is subject to any outstanding Order relating to the Purchased Assets or the Business or the Employees or former Employees of Seller or any of its Affiliates, other than, in each case, Orders of general applicability.
Section 4.7. Owned Real Property; IDA Bond Real Property; Easements
.
(g)Part I of Schedule 2.1(a) contains a drawing that identifies the PB1 Owned Real Property and Schedule 2.1(b) contains a drawing that identifies the PB1 Leased Real Property. Schedule 2.1(c) sets forth a description of each of the PB1 Easements. Seller has made available to PB1 Purchaser a complete and accurate copy of the Existing Survey. Seller has made available to Purchasers copies of the following documents, to the extent in Seller's possession: (i) the deeds (and other documents of conveyance) whereby the PB1 Owned Real Property was acquired by Seller, (ii) any title insurance policies (including any and all endorsements thereto) insuring an interest in the PB1 Owned Real Property or the PB1 Leased Real Property, including rights in any PB1 Easements appurtenant to or benefiting the PB1 Owned Real Property or the PB1 Leased Real Property, to the extent such PB1 Easements constitute real property, (iii) documents referenced in such policies and (iv) surveys related to the PB1 Owned Real Property and any PB1 Easements appurtenant to or benefiting the PB1 Owned Real Property or the PB1 Leased Real Property.
(h)Part II of Schedule 2.1(a) contains a drawing that identifies the PB1 IDA Bond Real Property. Seller has made available to PB1 Purchaser complete and accurate copies of the IDA Lease Agreement. Seller has made available to PB1 Purchaser, to the extent in Seller's possession, copies of (i) any title insurance policies (including any and all endorsements thereto) insuring an interest in the PB1 IDA Bond Real Property, including rights in any PB1 Easements appurtenant to or benefiting the PB1 IDA Bond Real Property, (ii) documents referenced in such policies and (iii) surveys related to the PB1 IDA Bond Real Property and any PB1 Easements appurtenant to or benefiting the PB1 IDA Bond Real Property.
(i)Part I of Schedule 2.5(a) contains a drawing that identifies the PB2 Owned Real Property and Schedule 2.5(b) contains a drawing that identifies the PB2 Leased Real Property. Schedule 2.5(c) sets forth a description of each of the PB2 Easements. Seller has made available to PB2 Purchaser a complete and accurate copy of the Existing Survey. Seller has made available to Purchasers copies of the following documents, to the extent in Seller's possession: (i) the deeds (and other documents of conveyance) whereby the PB2 Owned Real Property was acquired by Seller, (ii) any title insurance policies (including any and all endorsements thereto) insuring an interest in the PB2 Owned Real Property or the PB2 Leased Real Property, including rights in any PB2 Easements appurtenant to or benefiting the PB2 Owned Real Property or to the PB2 Leased Real Property, to the extent such PB2 Easements constitute real property,





(iii) documents referenced in such policies and (iv) surveys related to the PB2 Owned Real Property or the PB2 Leased Real Property and any PB2 Easements appurtenant to or benefiting the PB2 Owned Real Property or the PB2 Leased Real Property.
(j)Part II of Schedule 2.5(a) contains a drawing that identifies the PB2 Bond Real Property. Seller has made available to PB2 Purchaser, to the extent in Seller's possession, copies of (i) any title insurance policies (including any and all endorsements thereto) insuring an interest in the PB2 IDA Bond Real Property, including rights in any PB2 Easements appurtenant to or benefiting the PB2 IDA Bond Real Property, (ii) documents referenced in such policies and (iii) surveys related to the PB2 IDA Bond Real Property and any PB2 Easements appurtenant to or benefiting the PB2 IDA Bond Real Property.
(k)Part I of Schedule 2.9(a) contains a drawing that identifies the PB3 Owned Real Property and Schedule 2.9(b) contains a drawing that identifies the PB3 Leased Real Property. Schedule 2.9(c) sets forth a description of each of the PB3 Easements. Seller has made available to PB3 Purchaser a complete and accurate copy of the Existing Survey. Seller has made available to Purchasers copies of the following documents, to the extent in Seller's possession: (i) the deeds (and other documents of conveyance whereby the PB3 Owned Real Property was acquired by Seller), (ii) any title insurance policies (including any and all endorsements thereto) insuring an interest in the PB3 Owned Real Property or the PB3 Leased Real Property, including rights in any PB3 Easements appurtenant to or benefiting the PB3 Owned Real Property or the PB3 Leased Real Property, to the extent such PB3 Easements constitute real property, (iii) documents referenced in such policies and (iv) surveys related to the PB3 Owned Real Property or the PB3 Leased Real Property and any PB3 Easements appurtenant to or benefiting the PB3 Owned Real Property or the PB3 Leased Real Property.
(l)Part II of Schedule 2.9(a) contains a drawing that identifies the PB3 Bond Real Property. Seller has made available to PB3 Purchaser to the extent in Seller's possession copies of (i) any title insurance policies (including any and all endorsements thereto) insuring an interest in the PB3 IDA Bond Real Property, including rights in any PB3 Easements appurtenant to or benefiting the PB3 IDA Bond Real Property, (ii) documents referenced in such policies and (iii) surveys related to the PB3 IDA Bond Real Property and any PB3 Easements appurtenant to or benefiting the PB3 IDA Bond Real Property.
(m)Part I of Schedule 2.13(a) contains a drawing that identifies the PB4 Owned Real Property and Schedule 2,13(b) contains a drawing that identifies the PB4 Leased Real Property. Schedule 2.13(c) sets forth a description of each of the PB4 Easements. Seller has made available to PB4 Purchaser a complete and accurate copy of the Existing Survey. Seller has made available to Purchasers copies of the following documents, to the extent in Seller's possession or obtainable by Seller using Commercially Reasonable Efforts: (i) the deeds (and other documents of conveyance) whereby the PB4 Owned Real Property was acquired by Seller, (ii) any title insurance policies (including any and all endorsements thereto) insuring an interest in the PB4 Owned Real Property or the PB4 Leased Real Property, including rights in any PB4 Easements appurtenant to or benefiting the PB4 Owned Real Property or the PB4 Leased Real Property, to the extent such PB4 Easements constitute real property, (iii) documents referenced in such policies and (iv) surveys related to the PB4 Owned Real Property or the PB4 Leased Real Property and any PB4 Easements appurtenant to or benefiting the PB4 Owned Real Property or the PB4 Leased Real Property.
(n)Part II of Schedule 2.13(a) contains a drawing that identifies the PB4 Bond Real Property. Seller has made available to PB4 Purchaser to the extent in Seller's possession, copies of (i) any title insurance policies (including any and all endorsements thereto) insuring an interest in the PB4 IDA Bond Real Property, including rights in any PB4 Easements appurtenant to or benefiting the PB4 IDA Bond Real Property, (ii) documents referenced in such policies and (iii) surveys related to the PB4 IDA Bond Real Property and any PB4 Easements appurtenant to or benefiting the PB4 IDA Bond Real Property.
(o)Part I of Schedule 2.17(a) contains a drawing that identifies the Common Facilities Owned Real Property and Schedule 2.17(b) contains a drawing that identifies the Common Facilities Leased Real Property. Schedule 2.17(c) sets forth a description of each of the Common Facilities Easements. Seller has made available to Purchasers copies of the following documents, to the extent in Seller's possession:





(i) the deeds (and other documents of conveyance) whereby the Common Facilities Owned Real Property was acquired by Seller, (ii) any title insurance policies (including any and all endorsements thereto) insuring an interest in the Common Facilities Owned Real Property or the Common Facilities Leased Real Property, including rights in any Common Facilities Easements appurtenant to or benefiting the Common Facilities Owned Real Property or the Common Facilities Leased Real Property, to the extent such Common Facilities Easements constitute real property, (iii) documents referenced in such policies and (iv) surveys related to the Common Facilities Owned Real Property or the Common Facilities Leased Real Property and any Common Facilities Easements appurtenant to or benefiting the Common Facilities Owned Real Property or the Common Facilities Leased Real Property.
(p)Part II of Schedule 2.17(a) contains a drawing that identifies the Common Facilities IDA Bond Real Property. Seller has made available to the Project Purchasers to the extent in Seller's possession copies of (i) any title insurance policies (including any and all endorsements thereto) insuring an interest in the Common Facilities IDA Bond Real Property, including rights in any Common Facilities Easements appurtenant to or benefiting the Common Facilities IDA Bond Real Property, (ii) documents referenced in such policies and (iii) surveys related to the Common Facilities IDA Bond Real Property and any Common Facilities Easements appurtenant to or benefiting the Common Facilities IDA Bond Real Property.
(q)Except as set forth on Schedule 4.7(k), Seller has good and marketable fee simple title to all of the Owned Real Property, free and clear of all Encumbrances except Permitted Encumbrances. Seller has a good and valid leasehold interest in all Leased Real Property, free and clear of all Encumbrances, except Permitted Encumbrances. Seller has a good and valid easement interest or, as applicable, other real property interest in all of the Easements as grantee or beneficiary, free and clear of all Encumbrances except Permitted Encumbrances.
(r)Seller has, as of the Effective Date, a good and valid leasehold interest in the IDA Bond Real Property and good and valid easement interest in the Easements benefiting the IDA Bond Real Property. The IDA Bond Real Property is free and clear of all Encumbrances except Permitted Encumbrances.
(s)Seller is in possession of all of the Owned Real Property and Easements appurtenant to or benefiting the Owned Real Property. Seller is in possession of all IDA Bond Real Property and Easements appurtenant to or benefiting the IDA Bond Real Property.
(t)Except as set forth on Part I of Schedule 4.7(n), all of the Easements are valid, binding and in full force and effect, and any amounts due and payable thereon to date have been paid. Except as set forth on Part II of Schedule 4.7(n), there exists no default, nor, to Seller's Knowledge, any event or condition that, with notice or lapse of time, or both, would constitute a default by Seller under any Easement or, to Seller's Knowledge, by any grantor of any Easement. Except as set forth on Part III of Schedule 4.7(n), none of the Easements require any Consent of the grantor or any other Person to the sale, conveyance, assignment, transfer or delivery thereof to Purchasers.
(u)Except as set forth on Schedule 4.7(o), there are no Actions pending or, to Seller's Knowledge, threatened by any Person involving the exercise or a claim of eminent domain or similar right over or with respect to all or any portion of the Project Real Property, including any of the improvements thereon, therein, or thereunder that would reasonably be expected to have a Material Adverse Effect.
(v)None of the Project Real Property, including buildings, structures, facilities, fixtures and other improvements, or the conduct of the Business, contravenes or violates any building or zoning Law applicable to the Project Real Property other than as would not, individually or in the aggregate, reasonably be expected to interfere in any material respect with the operation of the Business as currently conducted by Seller; provided that the only representations and warranties made with respect to the absence of any violation of the Project Real Property of any Environmental Law are set forth in Section 4.15. None of the Project Real Property, including buildings, structures, facilities, fixtures and other improvements contravenes or violates any administrative, occupational safety and health or other Law applicable to the Project Real Property (whether or not permitted on the basis of prior nonconforming use, waiver or variance) other than as would





not, individually or in the aggregate, reasonably be expected to interfere in any material respect with the operation of the Business as currently conducted by Seller, and none of the Project Real Property serves any adjoining or other real property for any purpose or is subject to any restrictions relating to flood zoning; other than, in any such case, as would not, individually or in the aggregate, reasonably be expected to interfere in any material respect with the operation of the Business as currently conducted by Seller.
Section 4.8. Leased Personal Property
.
(w) Except for the PB1 IDA Bond Other Property, Schedule 4.8(a) sets forth a complete and accurate description of each item of PB1 Tangible Personal Property leased or licensed to Seller (the "PB1 Leased Personal Property") as of the Effective Date.
(x)Except for the PB2 IDA Bond Other Property, Schedule 4.8(b) sets forth a complete and accurate description of each item of PB2 Tangible Personal Property leased or licensed to Seller (the "PB2 Leased Personal Property") as of the Effective Date.
(y)Except for the PB3 IDA Bond Other Property, Schedule 4.8(c) sets forth a complete and accurate description of each item of PB3 Tangible Personal Property leased or licensed to Seller (the "PB3 Leased Personal Property") as of the Effective Date.
(z)Except for the PB4 IDA Bond Other Property, Schedule 4.8(d) sets forth a complete and accurate description of each item of PB4 Tangible Personal Property leased or licensed to Seller (the "PB4 Leased Personal Property") as of the Effective Date.
(aa)Except for the Common Facilities IDA Bond Other Property, Schedule 4.8(e) sets forth a complete and accurate description of each item of Common Facilities Tangible Personal Property leased or licensed to Seller (the "Common Facilities Leased Personal Property") as of the Effective Date.
(ab)Seller has good and valid leasehold interests in the Leased Personal Property and the IDA Bond Other Property that is material to the ownership, use, operation or maintenance of the Project, in each case, that is included in the Purchased Assets.
Section 4.9. Tangible Personal Property and Inventory
.
(ac)Schedules 2.1(d) and 2.1(e) set forth, respectively, a complete and accurate description of each material item of PB1 Tangible Personal Property and PB1 Inventory included in the PB1 Assets, including each item of PB1 Tangible Personal Property or PB1 Inventory with a book value of $10,000 or greater.
(ad)Schedules 2.5(d) and 2.5(e) set forth, respectively, a complete and accurate description of each material item of PB2 Tangible Personal Property and PB2 Inventory included in the PB2 Assets, including each item of PB2 Tangible Personal Property or PB2 Inventory with a book value of $10,000 or greater.
(ae)Schedules 2.9(d) and 2.9(e) set forth, respectively, a complete and accurate description of each material item of PB3 Tangible Personal Property and PB3 Inventory included in the PB3 Assets, including each item of PB3 Tangible Personal Property or PB3 Inventory with a book value of $10,000 or greater.
(af)Schedules 2.13(d) and 2.13(e) set forth, respectively, a complete and accurate description of each material item of PB4 Tangible Personal Property and PB4 Inventory included in the PB4 Assets, including each item of PB4 Tangible Personal Property or PB4 Inventory with a book value of $10,000 or greater.
(ag)Schedules 2.17(d) and 2.17(e) set forth, respectively, a complete and accurate description of each material item of Common Facilities Tangible Personal Property and Common Facilities Inventory included in the Common Facilities Assets, including each item of Common Facilities Tangible Personal Property or Common Facilities Inventory with a book value of $10,000 or greater.





(ah)Except for the Leased Personal Property and the IDA Bond Other Property, Seller has good and valid title to the Purchased Tangible Personal Property and Purchased Inventory, free and clear of all Encumbrances except Permitted Encumbrances.
Section 4.10. Project Contracts
.
(ai) There are no Material Project Contracts except for (i) the Purchased Contracts, (ii) the Project Excluded Contracts and (iii) the EAI Tolling Agreement. Seller has made available to each Project Purchaser complete and accurate copies of all Purchased Contracts and Project Excluded Contracts (including all written amendments, modifications, extensions, renewals and supplements thereto). No Affiliate of Seller is a party to a Contract that would constitute a Material Project Contract if Seller, rather than such Affiliate of Seller, were a party thereto.
(aj)Except as set forth in Schedule 4.10, no default, nor, to Seller's Knowledge, any event or condition that, with notice or lapse of time or both, would constitute a default, of Seller or, to Seller's Knowledge, any counterparty thereto has occurred or exists under any of the Purchased Contracts, except such defaults, events or conditions as (i) to which requisite waivers have been duly obtained or (ii) would not (A) result in any Assumed Liability or (B) give rise to any present right of termination under such Purchased Contract.
(ak)Other than as would not reasonably be expected to result in a Material Adverse Effect, no Action is pending or, to Seller's Knowledge, threatened against Seller challenging the enforceability of any Purchased Contract.
(al)Each Purchased Contract to which Seller is a party constitutes the valid and binding obligation of Seller and, to Seller's Knowledge, the other parties thereto, is in full force and effect and is enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application relating to or affecting the enforcement of creditors' rights and by general equitable principles.
(am)Seller is not a party to any Contract or arrangement with any Person, including any other member of the Seller Group, providing for or permitting the joint ownership, pooling or mutual use of any Inventory, Consumables, Major Maintenance Spares, machinery (mobile or otherwise), equipment, vehicles, pumps, fittings, tools, furniture, furnishings, meters, metering equipment or other tangible movable property.
Section 4.11. Permits
.
(an)Part I of Schedule 4.11 sets forth a complete and correct list of all material Permits (excluding Environmental Permits, which are the subject of Section 4.15) held by Seller or any of its Affiliates for the ownership, lease, use, operation or maintenance of the Purchased Assets, as currently operated by or for Seller, and for the lawful conduct of the Business as currently conducted by Seller, including any and all pending applications for any new material Permit or the renewal, extension or modification of any material Permit to be held by Seller or any of its Affiliates for the ownership, lease, use, operation, or maintenance of the Project or the Purchased Assets. Except as set forth in Part III of Schedule 4.11, since the date falling one year prior to the Effective Date, to the Knowledge of Seller, Seller or an Affiliate of Seller has held at the time required all Permits (excluding Environmental Permits, which are the subject of Section 4.15) required by Law for the ownership, lease, use, operation or maintenance of the Purchased Assets or the conduct of the Business as operated or conducted by Seller or any of its Affiliates except where the failure to hold such Permits would not reasonably be expected to have a Material Adverse Effect.
(ao)Each Purchased Permit (excluding Environmental Permits, which are the subject of Section 4.15) is valid and in full force and effect and, as of the Closing, is held by Seller except where the





failure of such Purchased Permit to be in full force and effect would not reasonably be expected to result in a Material Adverse Effect. To Seller's Knowledge, no event has occurred that permits the revocation, suspension, limitation or termination of, or the adverse modification, suspension, impairment or limitation in any material respect of, any Purchased Permit or any pending application for any new material Permit or the renewal, extension or modification of any material Permit listed on Part I of Schedule 4.11 (excluding Environmental Permits, which are the subject of Section 4.15). There is, to Seller's Knowledge, no event, fact, circumstance or condition (or set of events, facts, circumstances or conditions) arising out of the ownership, lease, use, operation or maintenance of the Project or the Purchased Assets by Seller or the conduct of the Business during the last twelve (12) months that would reasonably be expected to in either case (i) prevent Seller from obtaining the prompt renewal, extension or transfer in connection with the Transactions of any Permit listed (or which should have been listed) on Part I of Schedule 4.11 with an associated cost not in excess of standard renewal, extension or transfer fees or (ii) require a modification of any Permit listed (or which should have been listed) on Part I of Schedule 4.11 (other than a modification already obtained); provided, however, that nothing in this third sentence of Section 4.11(b) (A) ensures the prompt renewal, extension or transfer to any Project Purchaser, or the costs associated therewith, of any Permit listed (or which should have been listed) on Part I of Schedule 4.11 or (B) addresses any delays, rejections, excess costs or modifications, if any, that may arise or relate to the identity or regulatory status of any Project Purchaser.
(ap)Except as set forth in Part II of Schedule 4.11, (i) Seller and its Affiliates are in compliance in all material respects with the Purchased Permits, except for Environmental Permits, which are the subject of Section 4.15 and (ii) since the date falling one year prior to the Effective Date, to the Knowledge of Seller, Seller and its Affiliates have been in compliance with the Purchased Permits, except for Environmental Permits, which are the subject of Section 4.15, except where any such non-compliance would not reasonably be expected to have a Material Adverse Effect.
Section 4.12. Warranties
. To Seller's Knowledge, Seller holds and has the right to enforce all of the material Purchased Warranties.
Section 4.13. Intellectual Property
.
(aq)Part I of Schedule 4.13 sets forth all material Intellectual Property Rights owned by Seller or any of its Affiliates and used in or for the Business or the Project.
(ar)Part II of Schedule 4.13 sets forth all material Intellectual Property Rights held or possessed (but not owned) by Seller or an Affiliate of Seller that are used in the Business or by the Project. Part II(A) of Schedule 4.13 sets forth the licenses and similar rights pursuant to which Seller or any of its Affiliates holds or possesses the material Intellectual Property Rights described in Part II of Schedule 4.13 (the "Purchased Licenses"). All Intellectual Property Rights set forth in Part II of Schedule 4.13 consist of licenses and similar rights granted by or from Persons who are not Affiliates of Seller.
(as)The possession or use by Seller or any of its Affiliates of the Purchased Intellectual Property Rights and the business and activities of Seller and its Affiliates related to the Business or the Project, including Seller's obligations in this Agreement, do not, to the Knowledge of Seller, violate or infringe upon the Intellectual Property Rights of any Person. No Person has notified Seller or any of its Affiliates in writing that Seller or any of its Affiliates is violating or infringing upon the Intellectual Property Rights of any Person. To Seller's Knowledge, no Person is infringing upon or violating any Purchased Intellectual Property Rights of Seller.
(at)Assuming receipt of the Consents described in Part III of Schedule 4.13, Seller has the right to provide and transfer to each Project Purchaser for such Project Purchaser's use in connection with





the Business and the Purchased Assets acquired by such Project Purchaser an ownership interest in all of the material Purchased Intellectual Property Rights.
Section 4.14. Condition and Sufficiency of Assets
.
(au)Except as set forth in Schedule 4.14(a), all of the Purchased Tangible Personal Property and Purchased Inventory, and all improvements to the Project Real Property, including all buildings, fixtures, component parts, other constructions and other improvements thereon, thereto, or thereunder, (i) are in good operating condition and repair, subject only to ordinary wear and tear, and (ii) have been maintained by or for Seller since August 5, 2014 in the ordinary course of business consistent with past practices in all material respects.
(av)Except for the Excluded Assets and the Non-Assigned Assets for which Seller's Consents have not been obtained as of the Closing, the Purchased Assets constitute all of the assets, properties, rights (including all real property rights and Intellectual Property Rights) and interests reasonably necessary for the use, operation and maintenance of the Project, or the conduct of the Business, on the Closing Date consistent with past practices.
(aw)Except as set forth on Schedule 4.14(c), no Affiliate of Seller owns any asset, interest, property, right, license or contract (other than indirectly through such Affiliate's ownership interest in Seller) that, if owned by Seller, would constitute a Purchased Asset.
Section 4.15. Environmental Matters
.
(ax)(i)    The representations and warranties set forth in this Section 4.15(a) relate exclusively to the period of Seller's ownership or control of the Project or any of the Project Real Property. Seller makes no representations and warranties under this Section 4.15(a) with respect to any period prior to Seller's ownership or control of the Project or any of the Project Real Property. Part I of Schedule 4.15(a) sets forth a complete and correct list of all material Environmental Permits and all pending applications for any new material Environmental Permits or the renewal, extension or modification of any material Environmental Permit held by Seller or any of its Affiliates in respect of the Purchased Assets and the conduct of the Business.
(i)Except as set forth in Part II of Schedule 4.15(a), the Project and the Project Real Property are used, operated and maintained in compliance in all material respects with all applicable Environmental Laws (including Environmental Laws requiring Seller to obtain, maintain, and comply with Environmental Permits) and material Environmental Permits. Seller has obtained and, if required as of the Closing Date, maintains in full force and effect all material Environmental Permits required by Environmental Law for the ownership, lease, use, operation, maintenance or repair of the Project and the conduct of the Business. Each material Environmental Permit that is a Purchased Permit is valid and in full force and effect and, as of the Closing, is held by Seller. To Seller's Knowledge, no event (other than any change in Environmental Law) has occurred that would reasonably be expected to result in the revocation, suspension or termination of, or the adverse modification, impairment or limitation in any material respect of, any material Environmental Permit or any pending application for any new material Environmental Permit or the renewal, extension or modification of any material Environmental Permit.
(ii)Except as set forth in Part III of Schedule 4.15(a), neither Seller nor any of its Affiliates (nor any Representative of Seller or any of its Affiliates) has generated, transported, used, stored, treated, disposed of, handled or managed Hazardous Substances relating to the Project or the Project Real Property except in compliance in all material respects with all applicable Environmental Laws and Environmental Permits.





(iii)Except as set forth in Part IV of Schedule 4.15(a), to Seller's Knowledge, no material Environmental Condition exists at, on or under the Project Real Property, and no (i) Hazardous Substance has been Released by the Project or at, on or under the Project Real Property and (ii) Hazardous Substance has migrated from the Project Real Property, except, in each case of clause (i) or clause (ii), in compliance in all material respects with all Environmental Laws and applicable Environmental Permits or as has been Remediated to the satisfaction of the applicable Governmental Authorities. Each such Remediation is described in Part IV of Schedule 4.15(a).
(iv)Except as set forth in Part V of Schedule 4.15(a), there is not any pending or, to Seller's Knowledge, threatened material Environmental Claim with respect to the Project or the Project Real Property. To Seller's Knowledge, Seller does not have any material Environmental Liability relating to the Project or the Project Real Property.
(v)Except as set forth in Part VI of Schedule 4.15(a), to Seller's Knowledge, no above-ground storage tanks, underground storage tanks or other storage or process tanks (in each case, containing any material quantity of any Hazardous Substance) are owned, operated, leased or used at the Project Real Property. Except as set forth in Part VI of Schedule 4.15(a) or in a quantity, location or manner that would not reasonably be expected to require any material Remediation pursuant to any Environmental Law, to Seller's Knowledge, the Project and the Project Real Property do not contain asbestos or asbestos-containing material, polychlorinated biphenyls or equipment containing the foregoing, regulated concentrations of lead or lead-based paint, or urea formaldehyde foam insulation that could reasonably be expected to result in a material Environmental Claim being made.
(vi)Seller has not sought or obtained, and, to Seller's Knowledge, no other Person has sought or obtained, environmental insurance with respect to the Project or the Project Real Property.
(vii)Except for any Permitted Encumbrance, no material Encumbrance under any Environmental Law has been imposed or, to Seller's Knowledge, has been threatened to be imposed by any Governmental Authority on the Project or the Project Real Property and, to Seller's Knowledge, there are no events, facts, circumstances or conditions (or set of events, facts, circumstances or conditions) that are reasonably likely to result in the imposition of any material Encumbrance under any Environmental Laws on the Project or the Project Real Property.
(ay)To Seller's Knowledge or as would not reasonably be expected to result in a Material Adverse Effect, the representations and warranties set forth in Section 4.15(a) are true and correct with respect to the period prior to Seller's ownership or control of the Project or the Project Real Property.
(az)This Section 4.15 contain the sole and exclusive representations and warranties of Seller with respect to environmental, health and safety matters, including all matters arising under Environmental Laws or relating to any Environmental Conditions, Environmental Liabilities, Environmental Claims, Environmental Permits, Remediation or Hazardous Substances.
Section 4.16. Tax Matters
.
(ba)Except as set forth in Part I(a) of Schedule 4.16, Seller or an Affiliate of Seller has prepared in good faith and duly and timely filed, or caused to be duly and timely filed, all Tax Returns relating to the Business or the Project, and required to be filed by Seller or any of its Affiliates with the applicable Governmental Authority or Person. All Tax Returns described above are true, correct and complete in all material respects.
(bb)Except as set forth in Part I(b) of Schedule 4.16, all Taxes imposed on or with respect to the Business or the Project or for which Seller or any of its Affiliates is or could be liable, whether to Governmental Authorities (as, for example, under Law) or to other Persons under any Contract or agreement the primary purpose of which relates to Taxes with respect to all taxable periods, or portions thereof, ending





on or before the Closing, and required to be paid by Seller or any of its Affiliates have been paid, whether or not shown as due on the Tax Returns described in Section 4.16(a).
(bc)Seller and its Affiliates is in compliance with all Tax Laws and all Tax agreements applicable to the Business or the Project in all material respects.
(bd)Except as set forth in Part I(d) of Schedule 4.16, neither Seller nor any of its Affiliates is a party to any Action, nor is any Action or investigation, to Seller's Knowledge, pending or threatened for the assessment or collection of any material Tax relating to the Business or the Project, and no deficiency notice or report has been received by Seller or any of its Affiliates in respect of any material Tax relating to the Business or the Project, that has not resulted in a final binding settlement and payment to the applicable Governmental Authority or Person, in each case, where any resulting Tax liability would not be considered an Excluded Liability.
(be)Except as set forth in Part I(e) of Schedule 4.16, (i) to Seller's Knowledge, no Tax Return of Seller or any of its Affiliates relating to the Business or the Project, is under examination by the Internal Revenue Service or other Governmental Authority; (ii) all deficiencies asserted as a result of any such examination have been paid or finally settled; and (iii) no issue has been raised by the Internal Revenue Service or other Governmental Authority in any such examination that, by application of the same or similar principles, would reasonably be expected to result in a proposed deficiency for Seller or any its Affiliates for any other taxable period not so examined.
(bf)Except as set forth in Part II of Schedule 4.16, there are no outstanding agreements or waivers extending the statutory period of limitation applicable to any Tax Return for any taxable period.
(bg)None of the Purchased Assets secures, directly or indirectly, any debt the interest on which is tax-exempt under Section 103(a) of the Code.
Section 4.17. Employee Benefit Matters
.
(bh)Schedule 4.17(a) contains a complete list of all Employee Plans, whether or not "employee benefit plans" within the meaning of Section 3(3) of ERISA. True and complete copies of (i) each Employee Plan, including any amendments thereto (or, in the case of any Employee Plan that is unwritten, a description thereof), (ii)  current summary plan descriptions and summaries of material modifications related thereto, and (iii) if such Employee Plan is intended to qualify under Section 401(a) of the Code, the most recent determination letter received from the Internal Revenue Service, have in each case been made available to the Purchasers.
(bi)Each Employee Plan has been operated and administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code. Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a determination letter from the Internal Revenue Service to the effect that such Employee Plan and the trusts related thereto are qualified under Sections 401(a) and 501(a), respectively, of the Code. Each such Employee Plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code and no event has occurred since the date of such qualification or exemption that would reasonably be expected to adversely affect such qualification or exemption.
(bj)No member of the Entegra Group or any of their ERISA Affiliates has ever sponsored, participated in, maintained or been required to contribute to any Employee Plan that is subject to Title IV of ERISA, any "multiemployer plan" (as defined in Section 3(37) of ERISA), any multiple employer plan (as defined in Section 413(c) of the Code), or any multiple employer welfare arrangement (as defined in Section 3(40) of ERISA), nor does any Project Employee participate in any such plan.
(bk)Except as set forth on Schedule 4.17(d), there are no Actions or liens existing, pending, or, to Seller's Knowledge, threatened (other than routine claims for benefits) with respect to any Employee Plan or fiduciary thereof that would reasonably be expected to result in any material fine, penalty, Tax or liability of any kind to any Purchaser, any member of the Entegra Group or any of their ERISA Affiliates.





(bl)No Employee Plan provides welfare benefits after termination of employment to any Project Employee or to any other Employee or individual (or to any spouse, former spouse or beneficiary of any of the foregoing), excluding health coverage required to be continued under COBRA or other similar state or local Laws, the cost of which is fully paid by such current or former employees or their dependents.
(bm)No Employee Plan has terms that would require assumption or adoption thereof by any Purchaser or any Affiliate of any Purchaser. No member of the Entegra Group or any of their respective ERISA Affiliates have any commitments or obligations to provide any specific benefits or continued employment for any specific term to any Project Employee as a result of any Employee Plan, any employment Contract or any other Contract.
(bn)No owner of Entegra TC (i) is under common control, or is a single employer, with any member of the Entegra Group under Section 4001(b)(1) of ERISA or Section 414 of the Code or (ii) is subject to any Controlled Group Liability that would become a liability of any Purchaser as a result of the consummation of the transactions contemplated by this Agreement.
(bo)To Seller’s Knowledge, the participation during any periods prior to the date a Project Employee becomes an employee of any Purchaser or any Affiliate of any Purchaser of any Project Employees in any “employee benefit plan,” as defined in Section 3(3) of ERISA, sponsored or maintained by Employer’s Alliance LLC (d/b/a Fortune Business Solutions) would not reasonably be expected to result in any material liability to any Purchaser.
Section 4.18. Employee Matters
.
(bp)All of the present Project Employees are Employees of Union Power Employee Company and are listed in Part I of Schedule 4.18(a). Seller has provided to each Project Purchaser a true, accurate, and complete list of the present Project Employees as of the Effective Date that contains their names, titles, years of company service, status under the Fair Labor Standards Act of 1938, as amended ("FLSA") (as exempt or non-exempt), and current compensation or base salaries or wage payable to all such Project Employees. Other than such present Project Employees and those individuals listed in Part II of Schedule 4.18(a), no other individuals work at, or if working at another location, perform substantially all of their work in support of, the Project as of the Effective Date.
(bq)With respect to the Project Employees and except as set forth on Schedule 4.18(b), (i) each member of the Entegra Group is in material compliance with all Laws relating to employment and employment practices, wages and hours, labor relations, workers' compensation, safety, discrimination, harassment, retaliation, affirmative action, hiring and firing, immigration, employment Contracts, leave, reasonable accommodation, severance, privacy, medical privacy, unemployment, and all other terms, conditions or practices of employment or the workplace, and Seller has no Knowledge of any failure of Employer's Alliance LLC (d/b/a Fortune Business Solutions) to be in material compliance with any such Laws; (ii) there is no Action pending or, to Seller's Knowledge, threatened, or any Order binding upon any member of the Entegra Group, relating to employment and employment practices, wages and hours, overtime, labor relations (including union organizing), workers' compensation, safety, discrimination, harassment, retaliation, affirmative action, hiring and firing, worker classification, employee benefits, immigration, employment Contracts, leave, reasonable accommodation, severance, privacy, medical privacy, unemployment, or any other terms, conditions or practices of employment or the workplace that would reasonably be expected to result in material liability to any Purchaser; and (iii) each Project Employee is properly classified under the FLSA and under any similar Law of any state or other jurisdiction applicable to such individuals. Except as would not reasonably be expected to result in material liability to any Purchaser, each Person performing services to the Project in a capacity other than as a Project Employee has been properly classified as such and engaged in accordance with all applicable Laws.
(br)No member of the Entegra Group is or has been a party to any collective bargaining agreement or other union Contract applicable to any Project Employee; no such Contract determines the





terms and conditions of employment of any Project Employee; no collective bargaining agent has been certified as a representative of any of the Project Employees. No representation campaign or election is now in progress with respect to any of the Project Employees and no representation petition has been filed with the National Labor Relations Board. Further, (i) no Project Employees are represented by, and Seller has no Knowledge of any union organizing efforts with respect to, the Project or any Project Employees by, any union or labor organization; (ii) there is no labor strike, slowdown, sickout, lockout or work stoppage pending or, to the Knowledge of Seller, threatened by any Project Employees; and (iii) no member of the Entegra Group has received written notice of any unfair or illegal labor, workplace or employment-related claim or similar claim pending or threatened against any member of the Entegra Group before the National Labor Relations Board, the Equal Employment Opportunity Commission, the Department of Labor or any other Governmental Authority in any way relating to the Project, any Project Employees, or any independent contractor providing services to the Project.
(bs)Since June 30, 2014, no current or former Project Employees of Union Power Employee Company, Seller or any of its Affiliates have suffered an employment loss under the WARN Act or any similar state law.
Section 4.19. Insurance
. Part I of Schedule 4.19 sets forth a list of all material Project Insurance Policies held by Seller or its Affiliates as of the Effective Date. Seller has provided or made available to each Project Purchaser true and complete copies of the material Project Insurance Policies. All material Project Insurance Policies are in full force and effect in accordance with their terms, and no written notice of cancellation in respect of any material Project Insurance Policy has been received by Seller or any of its Affiliates. Part II of Schedule 4.19 sets forth, as of the Effective Date, by year, for the current policy year and each of the three (3) preceding policy years, exclusively as applied to the Project, (a) a statement describing each material claim under any Project Insurance Policy on a "ground up" basis and setting forth (i) the name of each claimant, (ii) a description of the Project Insurance Policy under which the claim was made by insurer, type of insurance, and coverage period and (iii) the amount and a brief description of the claim; and (b) a statement describing the loss experience for all material claims that were self-insured, including the number and aggregate cost of such claims.
Section 4.20. Regulatory Status
. Seller was determined by FERC to be an exempt wholesale generator within the meaning of Section 32 of the Public Utility Holding Company Act of 1935 by order dated January 27, 2000, in Docket No. EG00-56-00. The Project and Seller have met, and will continue to meet until the consummation of the Transactions at the Closing, all applicable requirements for the maintenance of such exempt wholesale generator status.
Section 4.21. Pipeline Status
. Except as set forth on Schedule 4.21, with respect to any pipeline and associated facilities owned by Seller and serving the Project such pipeline and associated facilities (i) have been owned at all times by the owner of the Project, (ii) have been used only for the delivery of Fuel to the Project, (iii) except for Fuel transported by EAI in connection with the EAI Tolling Agreement, have only transported Fuel owned by the owner of the Project, and (iv) do not constitute an interstate natural gas pipeline subject to the jurisdiction of FERC under the Natural Gas Act. Seller owns, leases or controls no pipeline or other facilities for the delivery of Fuel to the Project located on an Easement or outside the parcels of land described in Schedules 2.1(a), 2.5(a), 2.9(a), 2.13(a) and 2.17(a).
Section 4.22. Brokers
. Neither Seller nor any Affiliate thereof has employed an agent, broker, finder, investment or commercial banker, or any other Person, in connection with this Agreement or any of the Transactions so





as to give rise to any broker's, finder's or similar fee, commission or payment payable by any Purchaser or any of their respective Affiliates.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
Each Purchaser, severally and not jointly, hereby represents and warrants to Seller, as of the Effective Date and the Closing Date, as follows: