AGQPF Algonquin Power and Utilities Corporation (PK)

---

Exhibit		Description
99.1		Material Change Report - Form 51-102F3
99.2		Securities Purchase Agreement, dated August 9, 2024, by and among Algonquin Power & Utilities Corp. and Altius Renewables, ULC

	ALGONQUIN POWER & UTILITIES CORP.
	(registrant)
Date: August 19, 2024	By:	/s/ Darren Myers
	Name:	Darren Myers
	Title:	Chief Financial Officer

Item 1.

Name and Address of Company

Item 2.

Date of Material Change

Item 3.

News Release

Item 4.

Summary of Material Change

Item 5.

Full Description of Material Change

Item 6.

Reliance on subsection 7.1(2) of National Instrument 51-102

Item 7.

Omitted Information

Item 8.

Executive Officer

Item 9.

Date of Report

Execution Version

SECURITIES PURCHASE AGREEMENT

by and between

ALGONQUIN POWER & UTILITIES CORP.,

as Seller

and

ALTIUS RENEWABLES, ULC,

as Buyer

dated as of August 9, 2024

TABLE OF CONTENTS

TABLE OF CONTENTS
(Continued)

TABLE OF CONTENTS
(Continued)

SECURITIES PURCHASE AGREEMENT

This SECURITIES PURCHASE AGREEMENT, dated as of August 9, 2024 (this “Agreement”), is by and between Algonquin Power & Utilities Corp., a corporation existing under the laws of Canada (“Seller”), and Altius Renewables, ULC, an unlimited liability corporation incorporated under the laws of Alberta (“Buyer”).

RECITALS

WHEREAS, Seller owns 100% of the issued and outstanding units (the “Purchased Interests”) of Algonquin Power Co., a trust existing under the laws of Ontario (the “Company”); and

WHEREAS, Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller, the Purchased Interests.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1          Certain Defined Terms. For purposes of this Agreement:

“Action” means any claim, action, suit, audit, investigation, inquiry, mediation, arbitration or proceeding by or before any Governmental Authority.

“Adjustment Indebtedness” means, as of the Measurement Time, without duplication (including with respect to any other purchase price adjustments contemplated herein), the principal amount, plus any related accrued and unpaid interest, fees and prepayment premiums or penalties, of: (i) Indebtedness of any member of the Consolidated Group and (ii) Indebtedness related to VWH, the EBR Project and the Red Lily Project calculated on a pro rata basis in accordance with the Applicable Accounting Principles.  Notwithstanding the foregoing, “Adjustment Indebtedness” does not include (A) any intercompany obligations solely between or among Seller, the Consolidated Group or with the Company Group, VWH, the EBR Project or the Red Lily Project, (B) the Intercompany Financing Agreement, (C) the Promissory Note by and between Algonquin Power (Canada) Holdings Inc. and Seller, dated as of July 16, 2023, as may be amended or modified from time to time, (D) Tax obligations (except as described in clause (vii) of the definition of “Indebtedness”), (E) trade payables and accrued expenses arising in the ordinary course of business reflected as current liabilities in Net Working Capital, (F) any amounts with respect to the Construction Projects Outstanding Obligations Amount, (G) any Indebtedness attributable to the Blue Hill Project, (H) the Specified Funded Indebtedness, (I) obligations with respect to any undrawn and unpaid amounts under any letters of credit, performance bonds or guarantees that are released at Closing, (J) obligations under any interest rate, currency or other hedging agreement (including any energy or commodity hedging or offtake arrangements (other than forward Contracts with respect to the purchase of RECs in effect as of the date hereof and made available to Buyer)) to the extent reflected in the Seller Model, (K) any earned but unpaid compensation (including salary, bonuses and paid time off) for any period prior to the Closing or that becomes earned or otherwise due as a result of the occurrence of the Closing, (L) any Indebtedness arising under any Contract entered into by any member of the Company Group or the Non-Controlled Joint Ventures Group that Buyer has approved in writing between the date hereof and the Measurement Time, (M) Indebtedness in the form of tracking account balances that are reflected in the Seller Model, provided, that, if, as of the Measurement Time, (x) the actual tracking account balances are, in the aggregate, less than the amount set forth on Schedule 1.1-AI(M) of the Disclosure Schedules, then the Adjustment Indebtedness shall be decreased dollar-for-dollar by the amount of such difference or (y) the actual tracking account balances are, in the aggregate, greater than the amount set forth on Schedule 1.1-AI(M) of the Disclosure Schedules, then the Adjustment Indebtedness shall be increased dollar-for-dollar by the amount of such difference, (N) any obligations to pay the deferred purchase price of property or services and any “earn-out” payments or other contingent payments, in each case, to the extent included in the Seller Model and listed on Schedule 1.1-AI(N) of the Disclosure Schedules, and (O) any Indebtedness expressly contemplated by (and incurred pursuant to the applicable terms of this Agreement in connection with) the Operating Project CapEx Budget and reflected as current liabilities in Net Working Capital.

“Acceptable Banks” means, collectively, Banco Santander, S.A., Bank Of Montreal, BMO Capital Markets Corp., Mizuho Bank, Ltd., MUFG Bank, Ltd., National Bank of Canada and The Bank Of Nova Scotia.

“Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with, such first Person, provided, that with respect to Buyer, prior to Closing, “Affiliate” shall not include the Company Group or the Non-Controlled Joint Ventures Group.

“Ancillary Agreements” means the Transition Services Agreement and the Earnout Agreement.

“Applicable Accounting Principles” means the accounting principles, practices, assumptions, conventions, methods and policies as set forth on Exhibit A.

“Base Purchase Price” means $2,280,000,000.

“Blue Hill Project” means the wind-powered, electric generation facility with a capacity of approximately 177 MW located near the town of Herbert in Saskatchewan, Canada.

“Business Day” means any day other than a Saturday, a Sunday or any other day on which the Federal Reserve Bank of New York is closed or on which banks are generally not open for business in the City of Toronto, Ontario, Canada.

“Buyer Limited Guarantee” means the guarantee issued by Buyer Parent as of the date hereof.

“Buyer Material Adverse Effect” means any event, change, occurrence or effect that would prevent, materially delay or materially impede the performance by Buyer of its obligations under this Agreement or the consummation by Buyer of the transactions contemplated hereby.

“Buyer Parent” means LS Power Equity Partners Renewable V AIV, L.P., a Delaware limited partnership.

“Carvers Creek Holdco” means Carvers Creek Holdco, LLC, a Delaware limited liability company.

“Carvers Creek Project” means the integrated solar-powered, electric generation project with an expected capacity of approximately 150 MW located in Gloucester County, Virginia.

“Carvers Creek Tax Equity Amount” [Redacted – Commercially Sensitive Information – Tax Equity Funding Mechanics].

“Carvers Creek Tax Equity Documents” means those Tax Equity Documents listed under the heading “Carvers Creek” on Schedule 1.1-TED of the Disclosure Schedules.

“Cash” means, as of the Measurement Time, calculated in accordance with the Applicable Accounting Principles, the lesser of (i) the sum of all cash, cash equivalents and marketable securities held by the Consolidated Group, VWH, the Blue Hill Project, the EBR Project and the Red Lily Project, including (a) all outstanding security, customer or other deposits that, in each case, have been posted by a member of the Consolidated Group, VWH, the Blue Hill Project, the EBR Project and the Red Lily Project and (b) all uncashed and uncleared checks, drafts and wires received by the Consolidated Group, VWH, the Blue Hill Project, the EBR Project and the Red Lily Project and (ii) $95,000,000.  For the avoidance of doubt, (w) Cash associated with VWH, the Blue Hill Project, the EBR Project and the Red Lily Project shall be calculated on a pro rata basis in accordance with the Applicable Accounting Principles, (x) any cash collateral associated with project loans shall be used to offset the payoff of any such project loans at the Closing, provided, that any such cash collateral so used shall be excluded from “Cash” hereunder, (y) Cash associated with each Tax Equity Company shall be calculated on the basis of the cash allocations between  the applicable Tax Equity Investor and the applicable member of the Company Group or Non-Controlled Joint Ventures Group in accordance with the Applicable Accounting Principles and (z) the EPC Dispute Reserve Amount shall be excluded from Cash.

“Class A Member” has the meaning set forth in the applicable agreement set forth on Schedule 5.12 of the Disclosure Schedules.

“Class B Member” has the meaning set forth in the applicable agreement set forth on Schedule 5.12 of the Disclosure Schedules.

“Clearview Project” means the integrated solar-powered, electric generation project with an expected capacity of approximately 144 MW located in Champaign County, Ohio.

“Clearview Tax Equity Amount” means the amount set forth on Schedule 1.1-CTEA of the Disclosure Schedules.

“Closing Certificate” means any certificate or other instrument contemplated by or delivered in connection with this Agreement (other than the Ancillary Agreements).

“Code” means the Internal Revenue Code of 1986, as amended.

“Company Group” means, collectively, the Company, the Controlled Joint Ventures and each of their respective Subsidiaries; provided, that “Company Group” shall not include the Non-Controlled Joint Ventures and their respective Subsidiaries.

“Competition Act” means the Competition Act (Canada), as amended, and includes the regulations promulgated thereunder.

“Competition Act Clearance” means that, in connection with the transactions contemplated by this Agreement, either: (i) the applicable waiting period under subsection 123(1) of the Competition Act shall have expired or have been waived in accordance with subsection 123(2) of the Competition Act or the obligation to provide a pre-merger notification in accordance with Part IX of the Competition Act shall have been waived in accordance with paragraph 113(c) of the Competition Act; or (ii) the Commissioner shall have issued an Advance Ruling Certificate under Section 102 of the Competition Act in respect of the transactions contemplated by this Agreement.

“Confidentiality Agreement” means that certain Confidentiality and Non-Disclosure Agreement, dated as of November 20, 2023, by and between Algonquin Power & Utilities Corp. and LS Power Equity Advisors, LLC, as may be amended or otherwise modified from time to time.

“Consolidated Group” means the Company and any other Person whose financial statements are required, as at the applicable time, to be consolidated with the Company’s financial statements consistent with the accounting practices, principles, and methodologies as were used in the preparation of the Business Financial Statements, which, as of the date hereof, include those Persons set forth on Schedule 1.1(a) of the Disclosure Schedules.

“Construction Costs” means, with respect to the Construction Projects, without duplication, any costs or Liabilities with respect to (a) interconnection of such Construction Projects (including the studies, permitting, construction, start-up and testing in respect thereof), (b) development or similar fees, (c) module supply, (d) development, engineering, procurement (including in respect of an initial set of spares and consumables), construction, start-up, testing and other activities to achieve Final Completion and (e) land acquisition (such activities described in the foregoing clause (a), clause (c), clause (d) and clause (e), “Construction”), in each case (to the extent applicable), net of any delay liquidated damages payable by any Person to the Project Company with respect to such Construction Project prior to the Measurement Date.  For the avoidance of doubt, Construction Costs shall not include any Liabilities incurred in connection with the operation of a Construction Project from and after the achievement by such Construction Project of Final Completion.

“Construction Projects Outstanding Obligations Amount” means, without duplication, with respect to the Construction Projects, an amount equal to the aggregate amount of any (a) Construction Costs, plus (b) any other Liabilities to third parties associated with Construction, plus (c) to the extent not included in clause (a) or (b) above, subject to Section 5.27, any and all expenditures of Buyer or its Affiliates made in connection with the Construction of the Construction Projects, in each case, calculated for each Construction Project as of its applicable date of Final Completion and in accordance with the Applicable Accounting Principles.  For the avoidance of doubt, any intercompany obligations between the any member of the Company Group that directly owns any Construction Projects, on the one hand, and any other member of the Company Group, on the other hand, shall be excluded from the calculation of the Construction Projects Outstanding Obligations Amount.

“Construction Projects” means, as of the date hereof, the Projects set forth on Schedule 1.1(c) of the Disclosure Schedules.

“Contract” shall mean any legally binding lease, mortgage, security contract, contract, binding offer, license, arrangement, option, instrument or other agreement, other than a Permit or Employee Plan.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlled” and “Controlling” have meanings correlative thereto.

“Controlled Affiliates” means, in respect of Buyer, (a) Buyer Parent and (b) any Person which is Controlled by Buyer Parent and in which Buyer Parent owns 50% or more of the economic and voting interests.

“Controlled Joint Ventures” means the entities set forth on Schedule 1.1(d) of the Disclosure Schedules.

“Conversion Rate” means (a) with respect to any calculation to be undertaken in respect of the calculation of the Estimated Purchase Price or any of its constituent components, the prevailing U.S. Dollar to Canadian Dollar exchange rate in effect as published by the Bank of Canada for the Business Day that is five Business Days prior to the Closing Date, (b) with respect to any calculation to be undertaken in respect of the calculation of any adjustment to the Estimated Purchase Price or any of its constituent components as contemplated by Section 2.3 (other than (i) the amount of the Existing Company Notes or (ii) with respect to the adjustment in Section 2.3(i)), the prevailing U.S. Dollar to Canadian Dollar exchange rate in effect as published by the Bank of Canada for the Closing Date, (c) with respect to any calculation to be undertaken in respect of the calculation of any adjustment to the amount of the Existing Company Notes, if there is a currency hedge rate set forth in such Existing Company Note, then such currency hedge rate in effect for the Business Day at the applicable time; otherwise, the prevailing U.S. Dollar to Canadian Dollar exchange rate in effect as published by the Bank of Canada for the Business Day immediately prior to the ECN Redemption Date and (d) with respect to any other calculation not included in clauses (a) through (c) above, the prevailing U.S. Dollar to Canadian Dollar exchange rate in effect as published by the Bank of Canada for the Business Day prior to the date such calculation is undertaken.

“Debt Commitment Letter” means that certain debt commitment letter dated as of the date hereof, including all annexes, exhibits and other attachments thereto and all related fee letters dated as of the date hereof between the Financing Entities and Buyer.

“Development Projects” mean any Projects that are not Construction Projects or Operating Projects.

“Development Projects Adjustment Amount” means the aggregate amount across all Development Projects calculated, with respect to each Development Project, as the difference, which may be positive or negative, of (a) the aggregate of all costs budgeted on the Development Projects Budget with respect to such Development Project, minus (b) the aggregate of all costs paid with respect to such Development Project, in each case, during the period commencing on the date hereof and ending on (and including) the earlier of (i) the Closing Date and (ii) December 31, 2024 (with the budgeted amounts for the month including such period ending date prorated based on the number of days expired in such month prior to and excluding the day on which such period ends).

“Development Projects Budget” means a budget relating to the development of the Development Projects for the period of time between the date of this Agreement and the Locked Box Date and attached hereto as Exhibit C-1, as the same may be modified from time to time in accordance with Section 5.1(d).

“Development Projects Credit Amount” means the amount set forth on Schedule 1.1-DPCA of the Disclosure Schedules.

“Development Projects 2025 Pre-Locked Box Spending Amount” means, if the Closing Date has not occurred on or prior to December 31, 2024, the aggregate amount of all costs and expenses paid with respect to the Development Projects to the extent contemplated in the Development Projects Budget or otherwise approved by Buyer in writing (including, without limitation, for purposes of development, construction and/or operation thereof or in connection with any operating or capital expenditures required by any Subsidiaries, Controlled Joint Ventures or Non-Controlled Joint Ventures) during the period commencing on January 1, 2025 and ending on the Measurement Time.  For avoidance of doubt, any costs or expenses paid with respect to the Development Projects that are not contemplated in the Development Projects Budget or otherwise approved in writing by Buyer hereunder shall not be included in the Development Projects 2025 Pre-Locked Box Spending Amount for any purpose hereof or otherwise result in any adjustment to the Purchase Price hereunder.

"Disclosure Schedules” means the schedules setting forth certain disclosures of Seller, or qualifications or exceptions to Seller’s representations or warranties set forth in Article III, which schedules are delivered simultaneously with the execution and delivery of this Agreement.

“Earnout Agreement” means the Earnout Agreement in the form of Exhibit hereto.

“Easement Real Property” means all real property in which a member of the Company Group or the Non-Controlled Joint Ventures Group holds an Easement, including buildings, structures and improvements owned by such member of the Company Group or the Non-Controlled Joint Ventures Group and located thereon, fixtures owned by the Seller and contained therein and appurtenances thereto.

“Easements” means all easements, rights-of-way, servitudes, surface use rights, rights of use, rights of way and similar rights.

“EBR Project” means the wind-powered, electric generation facility with a capacity of approximately 24 MW located in Quebec, Canada.

“ECN Redemption Date” means the date on which the Existing Company Notes are to be redeemed as indicated in the notice delivered by the Company in accordance with Section 5.19.

“Encumbrance” means any charge, claim, mortgage, lien, license, option, pledge, hypothec, security interest, restrictive covenants, options, rights of first refusal or offer, title defects or other encumbrances (including any conditional sale or title retention agreement, any lease in the nature thereof, any profits interest, earn-out right or similar right) or restrictions (including on transfer) of any kind (not including any license of Intellectual Property).

“Environmental Attributes” means any and all credits, benefits, emissions reductions, offsets, attributes and allowances of any kind (including all RECs), howsoever entitled, attributable to a Project or the electric energy, capacity or other generator-based products produced therefrom, including (a) any avoided emissions of pollutants to the air, soil or water, such as sulfur oxides, nitrogen oxides and carbon monoxide, and any rights related thereto, (b) any avoided emissions of methane, carbon dioxide and other “greenhouse gases” that have been determined by the United Nations Intergovernmental Panel on Climate Change or any other governmental, quasi- governmental or non-governmental agency or body to contribute to the actual or potential threat of altering the Earth’s climate by trapping heat in the atmosphere, and any rights related thereto, (c) any reporting rights relating to the reduction of “greenhouse gases” under Section 1605(b) of the National Energy Policy Act of 1992 or under any other federal, state, provincial, local or foreign law, rule or regulation related to the reduction of air pollutants or “greenhouse gases” or the trading of emissions or emissions credits, including so-called “green tags” or “green certificates,” and (d) any credits, certificates or similar instruments issued pursuant to a federal, state or provincial renewable portfolio standard or analogous program.

“Environmental Laws” means any Laws of any Governmental Authority relating to pollution or protection of the environment, natural resources or to human health or safety (in the case of human health or safety, as it relates to exposure to Hazardous Materials).

“Environmental Permits” means all Permits under any Environmental Law.

“EPC Dispute Reserve Account” means the account that holds the funds consisting of the EPC Dispute Reserve Amount.

“EPC Dispute Reserve Amount” means [Redacted – Commercially Sensitive Information – Negotiations with Third Party].

“Equity Commitment Letter” means that certain executed equity commitment letter dated as of the date hereof between Buyer Parent and Buyer.

“Equity Interests” means: (a) any partnership interests; (b) any membership interests or units; (c) any shares of capital stock; (d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distribution of assets of, the issuing entity; (e) beneficial interests or units in trusts; (f) preemptive or other outstanding rights, subscriptions, options, warrants, stock appreciation rights, redemption rights, repurchase rights, convertible, exercisable, or exchangeable securities (including convertible debt securities) or other binding arrangements or agreements relating to issued or unissued equity or ownership interests or any other securities or obligations convertible or exchangeable into or exercisable for, or giving or entitling any Person to purchase or otherwise acquire any interests described in the foregoing clauses (a) through (e); (g) any other equity securities or any other securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any Equity Interests of any other Person, and any securities evidencing such right; or (h) any other interest classified pursuant to applicable Law as an equity security of a Person.

“ERCOT” means the Electric Reliability Council of Texas Inc. or any successor thereof.

“ERCOT Protocols” means the document adopted by ERCOT, including any attachments or exhibits referenced therein, as amended from time to time, that contains the scheduling, operating, planning, reliability, and settlement (including registration) policies, rules, guidelines, procedures, standards, and criteria of ERCOT.  The version of the ERCOT Protocols in effect at the time of the performance or non-performance of an action shall govern with respect to that action.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“ERISA Affiliate” means any person that for purposes of Title IV of ERISA or Section 412 of the Code would be deemed at any relevant time to be a single employer or otherwise aggregated with the Company under Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.

“Estimated Purchase Price” means (i) the Base Purchase Price, plus (ii) the Estimated Cash, plus (iii) the Estimated Net Working Capital Adjustment, minus (iv) the Estimated Adjustment Indebtedness, minus (v) the Estimated Specified Funded Indebtedness, minus (vi) the Estimated Transaction Expenses, if any, minus (vii) the Estimated Construction Projects Outstanding Obligations Amount, if any, minus, as applicable (viii) the Estimated Development Projects Adjustment Amount, plus (ix) the Estimated Carvers Creek Tax Equity Amount, minus (x) the Clearview Tax Equity Amount, minus (xi) [Redacted - Commercially Sensitive Information - Negotiations with Third Party] minus (xii) the Estimated Leakage Amount, if any, plus (xiii) the Estimated Locked Box Period Development Expenditures Amount, if any, plus (xiv) the Estimated Development Projects 2025 Pre-Locked Box Spending Amount, if any, minus (xv) the Development Projects Credit Amount, minus (xvi) the Estimated Heller RNG Sale-Leaseback Amount, minus (xvii) the Norswiss Tax Equity Amount, minus (xviii) the Estimated Property Tax Amount.

“EWG” means an “exempt wholesale generator,” as such term is defined in Section 1262(6) of PUHCA, 42 U.S.C. § 16451(6), and the FERC’s regulations at 18 C.F.R. §§ 366.1 and 366.7.

“Existing Company Notes” means, collectively, (a) the 4.09% Senior Unsecured Debentures due February 17, 2027, (b) the 4.60% Senior Unsecured Debentures due January 29, 2029 and (c) the 2.85% Senior Unsecured Debentures due July 15, 2031.

“FCC Radio License Transfer” means the application to the Federal Communications Commission for the transfer of the radio licenses held as of the date hereof with respect to the Sandy Ridge I Project and the Sanger Project.

“FERC” means the Federal Energy Regulatory Commission and its successors.

“FERC 203 Approval” means authorization of FERC under Section 203 of the FPA, as amended, including the rules and regulations promulgated thereunder, for the transactions contemplated by this Agreement that has been issued and is in full force and effect.

“Final Completion” means the date on which a Construction Project has achieved “final completion” (howsoever denominated) under its material engineering procurement and/or construction Contracts or offtake Contracts, all claims, disputes and other Actions associated therewith have been fully and finally resolved, all punch-list work has been completed and all Encumbrances claimed by any Person arising from construction work on such Construction Project have been waived or released.

“Final Determination” means a determination made by a Governmental Authority (including pursuant to a settlement) where all rights to object to or appeal from the determination (including any right to obtain relief under a competent authority or similar process) have been exhausted or have expired.

“Financing” means, collectively, the Debt Financing and the Equity Financing.

“Financing Entities” shall mean the parties to the Debt Commitment Letter (other than Buyer) and any joinder agreements, indentures or credit agreements relating thereto.

“Financing Proceeding” means any Action involving the Financing Entities or any of their Affiliates arising out of, or relating to, the transactions contemplated hereby, any commitment to provide the Debt Financing or the performance of services thereunder.

“FPA” means the Federal Power Act of 1920, as amended, and all rules and regulations adopted thereunder.

“Fraud” means, with respect to any Person, actual and intentional (and not constructive) misrepresentation of a fact by such Person with respect to the making of the representations and warranties in Article III or Article IV (as applicable) or in a Closing Certificate (in each case, as qualified by the Disclosure Schedules set forth in Article III or Article IV) with the actual knowledge (as opposed to imputed or constructive knowledge or knowledge that could have been obtained after inquiry, or recklessness or negligence) of such Person that such representation was false when made and that was made with the specific intent to induce the Person to whom such representation was made (the “Recipient”) to enter into or consummate the transactions contemplated by this Agreement and upon which the Recipient has reasonably relied to its detriment; provided, that, in each case, such Fraud shall only be deemed to exist if Seller (or Buyer, in the case of Article IV) had actual knowledge (as opposed to having imputed or constructive knowledge or knowledge that could have been obtained after inquiry) that the representations and warranties made by such Person pursuant to, (a) in the case of Seller, Article III (as qualified by the Disclosure Schedules as set forth in Article III) or in a Closing Certificate or (b) in the case of Buyer, Article IV (as qualified by the Disclosure Schedules as set forth in Article III) or in a Closing Certificate were false when made, with the specific intention that the Recipient rely thereon to their detriment; provided, further, that “Fraud” does not include equitable fraud, promissory fraud, unfair dealings fraud or any fraud based on negligence or recklessness.

“FUCO” means “foreign utility company” as such term is defined in Section 1262(6) of PUHCA, 42 U.S.C. § 16451(6), and the FERC’s regulations at 18 C.F.R. §§ 366.1 and 366.7.

“GAAP” means United States generally accepted accounting principles as in effect from time to time.

“Governmental Authority” means any Canadian, United States or non-U.S., and non-Canadian national, federal, provincial, territorial, state, municipal or local governmental, regulatory or administrative authority, agency, board, tribunal, branch, division or commission or any judicial or arbitral body of competent jurisdiction, in each case, and any successor thereto and including NERC, FERC, PJM, ERCOT, the Midwest Independent System Operator, the California Independent System Operator, NYISO and the IESO.

“Hazardous Materials” means any material, substance, waste, pollutant, contaminant or chemical that is regulated under, or defined, listed, characterized, designated or classified as a pollutant, contaminant, hazardous, toxic or radioactive under or pursuant to, any Environmental Law, including any petroleum or any derivative or byproduct thereof, asbestos, or asbestos containing material, per- and polyfluoroalkyl substances or polychlorinated biphenyls.

“Heller RNG Project” means the biogas production facility with a capacity of approximately 90 MMBtu/d located in Alma Center, Wisconsin.

“Heller RNG Sale-Leaseback Amount” [Redacted – Commercially Sensitive Information – Information Related to Operational Matter of a Project].

“Identified Spares” means those certain spare parts for Vestas V110 wind turbines constituting 3 sets of nacelles, hubs and blade sets, as more particularly described on Schedule 1.1-IS of the Disclosure Schedules.

“IESO” means the Independent Electricity System Operator of the Province of Ontario.

“Income Tax” means any U.S. or Canadian federal, provincial, state or local income Tax or other Tax based on, or determined by reference to, profits, net profits, net income, or other similar measures (together, in each case, with any interest, penalties or additions with respect thereto, but excluding, in each case, for the avoidance of doubt, any Transfer Taxes, ad valorem, property, gross receipts, excise, sales, use, goods and services, severance, production, utility, or other similar Taxes).

“Indebtedness” means: (i) indebtedness for borrowed money; (ii) indebtedness evidenced by any note, bond, debenture or other debt security; (iii) reimbursement obligations under letters of credit or performance bonds, in each case, only to the extent drawn; (iv) any obligations to pay the deferred purchase price of property or services (including “earn-out” payments or other contingent payments) including under any conditional sale or title retention agreement, except trade accounts payable and other liabilities arising in the ordinary course of business included in the calculation of Net Working Capital as a liability; (v) net settlement amounts under any derivative or hedging arrangements (including any swap, collar, cap or other Contract with the principal purpose of benefitting from, reducing or eliminating interest rate, foreign currency or commodity price fluctuation risk), provided, that such derivative or hedging arrangements shall not be deemed to be “settled” by virtue of the consummation of the transactions contemplated hereunder; (vi) any finance lease obligations; (vii) any unfunded or underfunded Liabilities pursuant to any pension, retirement or nonqualified deferred compensation plan or arrangement, any contributions (other than an employee contribution) required to be made under any Employee Plan that contains a cash or deferred arrangement intended to qualify under Section 401(k) of the Code for any periods prior to the Closing that have not been remitted to such plan prior to the Closing, any unpaid severance obligations with respect to any employee terminated prior to the Closing, and any earned but unpaid compensation (including salary, bonuses and paid time off) for any period prior to the Closing or that becomes earned or otherwise due as a result of the occurrence of the Closing, in each case, together with the employer portion of any payroll, employment or similar Taxes, if any, associated therewith, and calculated in accordance with the Applicable Accounting Principles; (viii) indebtedness in the form of tracking account balances; and (ix) any obligation in the nature of a guarantee of any of the foregoing.

“Indigenous Group” means any Band (as such term is defined in the Indian Act (Canada)), First Nation, Inuit people, Métis person or people, aboriginal person or people, native person or people, indigenous people, any Person or group asserting or otherwise claiming an aboriginal or treaty right, including aboriginal title or any other aboriginal interest, and any Person or group representing, or purporting to represent, any of the foregoing.

“Intellectual Property” means: (a) trademarks and service marks, and registrations and applications therefor; (b) patents and patent applications; (c) copyrights, and registrations and applications therefor, (d) industrial designs, and registrations and applications therefor; and (e) trade secrets.

“Intercompany Financing Agreement” means that certain Financing Agreement, dated as of November 23, 2022, by and among Algonquin Power & Utilities Corp., Liberty Utilities Co. and Algonquin Power Co., as may be amended or otherwise modified from time to time.

“International Trade Laws” means all applicable (i) U.S. and non-U.S. export control laws and regulations, including but not limited to the United States Export Administration Act, International Emergency Economic Powers Act, the Export Control Reform Act of 2018, and their implementing Export Administration Regulations, the Arms Export Control Act and its implementing International Traffic in Arms Regulations, the Export and Import Permits Act (Canada) and any regulations thereunder, and the Defence Production Act (Canada) and any regulations thereunder; (ii) U.S. and non-U.S. laws, regulations or restrictive measures relating to economic or trade sanctions or embargoes, including those administered or enforced by the U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”), the U.S. Department of State, and the U.S. Department of Commerce, Global Affairs Canada, Public Safety Canada, or any other relevant governmental authority; and (iii) anti-boycott regulations (including those administered by the U.S. Department of Commerce and the U.S. Department of Treasury), U.S. and non-U.S. laws, statutes, rules, regulations, judgments, orders (including executive orders), decrees or restrictive measures relating to economic, financial or trade sanctions, export control or anti-boycott measures administered, enacted or enforced by a relevant Sanctions Authority, as well as applicable customs laws.

“Investment Canada Act” means the Investment Canada Act (Canada), as amended, and includes the regulations promulgated thereunder.

“Investment Canada Act Approval” means, in respect of the transactions contemplated by this Agreement, that Buyer shall have received written evidence from the responsible Minister under the Investment Canada Act that the Minister is satisfied, or the responsible Minister under the Investment Canada Act is deemed to be satisfied, that the transactions contemplated by this Agreement are likely to be of net benefit to Canada pursuant to the Investment Canada Act.

“IRS” means the Internal Revenue Service of the United States.

“ITC” means the energy credits pursuant to section 48 and section 48E of the Code.

“Joint Venture” means the Controlled Joint Ventures, the Non-Controlled Joint Ventures and their respective Subsidiaries.

“Key Project Document” means any (a) material Contract that is related to the development, design, engineering, construction, equipment supply, maintenance, repowering, repair or operation of a Project or Project(s) (including material warranty agreements and performance guarantee agreements, operation and maintenance agreements and purchase orders or similar Contracts), (b) material Contract that is to effect a physical or financial sale, exchange or transfer of any output or attributes related to the output of a Project or Project(s), whether directly or indirectly, including any electricity, Environmental Attributes, capacity, ancillary services, resource adequacy or similar products (including, for purposes of this clause (b), any hedge, call, revenue put, swap, collar or option agreement as well as any forward capacity commitments assumed through auctions administered by NYISO, ISO-NE or PJM), (c) Contract that relates to interconnection, transmission, dispatch or marketing services or participation in markets related to the output or attributes of any Project, (d) Contract that is a common or shared facilities agreement, build-out agreement or non-interference agreement related to a Project or Project(s), (e) Contract that is for property tax abatement, property tax value limitation or “PILOT” agreement affecting a Project or Project(s) or the real property on which a Project or Project(s) are located, (f) Contract that is an interest rate or currency cap, swap, option or collar agreement or other derivative or hedging arrangement affecting any member of the Company Group or Non-Controlled Joint Ventures Group, (g) material Contract that is a Real Property Contract or (h) Contract that is an arrangement pursuant to which a Person provides “tax equity” financing for the benefit of a Project or Project(s) (including through the transfer of ITC or PTC) or affecting any member of the Company Group or the Non-Controlled Joint Ventures Group.

“Knowledge of Seller” means the actual (but not constructive or imputed) knowledge of each individual listed in Schedule 1.1(e) of the Disclosure Schedules after reasonable inquiry of each such individual’s direct reports.

“Law” means any statute, law, ordinance, regulation, rule, code, by-law, decree or Order of any Governmental Authority or any principle of common law or equity.

“Leakage” means, without duplication, the aggregate amount of all payments or transfers of cash, assets or properties (tangible or intangible) (which amount shall be the fair market value of such assets or properties) or any cost, expense, commitment or Liability incurred or made, directly or indirectly, by or from any member of the Company Group or the Non-Controlled Joint Ventures Group during the Locked Box Period (if any) in connection with any of the following:

(a)          any dividend, distribution or other payment (whether in cash or in kind) declared, paid or made, or any repurchase, repayment, redemption or other return of capital, in each case, by any member of the Company Group or the Non-Controlled Joint Ventures Group to, or for the benefit of, Seller or any of its Related Parties (other than the Company Group or the Non-Controlled Joint Ventures Group), except for any payment satisfied by the issuance of units of the Company to Seller for which the Company has claimed or will be able to claim a deduction pursuant to subsection 104(6) of the Tax Act in respect of the issuance or the payment obligation to which the issuance relates;

(b)        any waiver, forgiveness, forbearance, discount, deferral or release of (i) any amount, obligation or Liability owed to, or for the benefit of, any member of the Company Group or the Non-Controlled Joint Ventures Group by Seller or any of its Related Parties (other than the Company Group or the Non-Controlled Joint Ventures Group) or (ii) a claim against Seller or any of its Related Parties (other than the Company Group or the Non-Controlled Joint Ventures Group);

(c)          any lending or borrowing between any Person in the Company Group or the Non-Controlled Joint Ventures Group and Seller or any of its Related Parties (other than the Company Group or the Non-Controlled Joint Ventures Group) that is not repaid at or prior to the Closing;

(d)          any payment or transfer, assignment, or surrender of assets, rights, or other benefits or rendering of services to, or for the benefit of, Seller or any of its Related Parties (other than the Company Group or the Non-Controlled Joint Ventures Group);

(e)         any obligation of Seller or any of its Related Parties (other than the Company Group or the Non-Controlled Joint Ventures Group) that is assumed, accrued, incurred, secured or guaranteed (or any indemnity given in respect thereof) by any member of the Company Group or the Non-Controlled Joint Ventures Group;

(f)          the creation of any Encumbrance over any asset of any member of the Company Group or the Non-Controlled Joint Ventures Group in favor of Seller or any of its Related Parties (other than the Company Group or the Non-Controlled Joint Ventures Group) that is not irrevocably and unconditionally released as of the Closing;

(g)         discharging, curing, resolving or remedying any breaches of or inaccuracies under this Agreement by Seller or any Related Person, including to compromise, resolve, or settle any claims, violations, or actions or to cure, remedy, resolve or correct any violation, breach or non-compliance of any applicable Law, Permit or Contract;

(h)         without duplication of any adjustment to the Purchase Price contemplated in Section 5.29, any restoration or replacement of damaged or condemned property or pursuant to Section 5.29 if the Restoration Cost is greater than $22,000,000, but does not exceed $110,000,000, and an election is made to restore or replace such damaged or condemned property;

(i)           any fees, costs, Taxes or other amounts payable or incurred by any member of the Company Group or the Non-Controlled Joint Ventures Group as a consequence of the matters referred to in clauses (a) through (h); or

(j)           any agreement or commitment to do any of the foregoing.

Notwithstanding the foregoing, Leakage:

“Leakage Amount” means the aggregate amount of any Leakage (other than Permitted Leakage).

“Leased Real Property” means all real property in which a member of the Company Group or the Non-Controlled Joint Ventures Group holds a leasehold or sub-leasehold interest, emphyteutic rights, license, or other occupancy right in real property other than a fee simple ownership interest or an Easement interest, including buildings, structures and improvements located thereon, fixtures contained therein and appurtenances thereto and Easements and other rights relating thereto.

“Liabilities” means all liabilities, Indebtedness, guarantees, assurances, commitments and other obligations of any kind, whether absolute, accrued, matured, contingent, known or unknown, fixed or otherwise, or whether due or to become due and including all costs and expenses that result from the foregoing.

“License Agreement” means that certain License Agreement, dated as of January 31, 2017, by and between Algonquin Power & Utilities Corp. and Algonquin Power Co., as may be amended or otherwise modified from time to time.

“Locked Box Date” means February 28, 2025.

“Locked Box Period” means the period beginning at 12:01 a.m. Eastern time on March 1, 2025 and ending at the Closing.

“Locked Box Period Development Budget” means that certain budget agreed by Seller and Buyer and attached as Exhibit C hereto with respect to operating and/or capital expenditures contemplated to be made by Seller for the benefit of the Development Projects during the Locked Box Period.

“Locked Box Period Development Expenditures Amount” means, if the Closing Date has not occurred on or prior to the Locked Box Date, the aggregate dollar amount of all Locked Box Period Development Expenditures.

“Locked Box Period Development Expenditures” means, if the Closing Date has not occurred on or prior to the Locked Box Date, to the extent contemplated in the Locked Box Period Development Budget or otherwise approved in writing by Buyer, any expenditures made (or caused to be made from sources other than a member of the Company Group or the Non-Controlled Joint Ventures Group or proceeds of any Indebtedness raised thereby) by Seller during the Locked Box Period for the benefit of the Development Projects (including, without limitation, for purposes of development, construction and/or operation thereof or in connection with any operating or capital expenditures required by any Subsidiaries, Controlled Joint Ventures or Non-Controlled Joint Ventures).

“Loss” or “Losses” means any and all losses, damages, Liabilities, deficiencies, claims, awards, assessments, judgments, penalties, Taxes, fines, interest, costs and expenses (including attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing).

“Material Adverse Effect” means any event, change, occurrence or effect that would reasonably be expected to have a material adverse effect on the business, assets, Liabilities, condition (financial or otherwise) or results of operations of the Company Group and the Non-Controlled Joint Ventures Group, taken as a whole; provided, however, that no event, change, occurrence or effect attributable to or resulting from any of the following, alone or in combination, shall be deemed to constitute, or be taken into account in determining whether there has been or would be, a Material Adverse Effect: (a) any changes in general economic or business conditions or in the financial, debt, banking, capital, credit or securities markets or in interest or exchange rates, in each case, in the United States, Canada or elsewhere in the world; (b) any changes developments generally affecting any of the industries or markets in which the Company Group or the Non-Controlled Joint Ventures Group operate, including any changes or developments in legal, political or regulatory conditions impacting any tax or other incentive programs for the renewable energy industry; (c) any changes or developments generally affecting the prices or supply and demand of commodities or supplies, including electric power, used in connection with the business of the Company Group or the Non-Controlled Joint Ventures Group; (d) any actions required under this Agreement to obtain any approval or authorization under applicable Laws or Contracts for the consummation of the transactions contemplated hereby; (e) any adoption, implementation, modification, repeal or other changes in any applicable Laws or Orders of any Governmental Authority (including any actions taken by any Governmental Authority in connection with any of the events set forth in clause (g), clause (h), clause (i) or clause (j) of this definition) or any changes in GAAP, or in the interpretations of any of the foregoing; (f) any failure by the Company to meet internal or published projections, forecasts or revenue or earnings predictions (provided, that the underlying causes thereof, to the extent not otherwise excluded by this definition, may be deemed to contribute to a Material Adverse Effect); (g) political, geopolitical, social or regulatory conditions, including any outbreak, continuation or escalation of any military conflict, declared or undeclared war, armed hostilities, civil unrest, public demonstrations or acts of foreign or domestic terrorism or sabotage (including hacking, ransomware or any other electronic attack other than if specifically directed at a member of the Company Group or the Non-Controlled Joint Ventures Group), or any escalation or worsening of any such foregoing conditions; (h) any natural or manmade disasters or calamities, weather conditions including hurricanes, floods, tornados, tsunamis, earthquakes and wild fires, cyber outages or other force majeure events, or any escalation or worsening of such foregoing conditions or any other regional, national or international calamity, crisis or emergency, whether or not caused by any Person; (i) any epidemic, pandemic or outbreak of disease, or any escalation or worsening of such foregoing conditions; (j) the announcement of this Agreement and the transactions contemplated hereby, including the initiation of litigation by any Person with respect to this Agreement and any termination of, reduction in or similar negative impact on relationships, contractual or otherwise, with any customers, suppliers, distributors, partners or employees of the Company Group or the Non-Controlled Joint Ventures Group due to the announcement of this Agreement or the identity of the parties to this Agreement; (k) any action taken by Seller, or which Seller causes to be taken by any member of the Company Group or the Non-Controlled Joint Ventures Group, in each case, which is required by this Agreement (including, without limitation, actions with respect to the [Redacted – Confidential Information]); or (l) any actions taken (or omitted to be taken) at the written request or with the written consent of Buyer (including, without limitation, pursuant to Section 5.1); provided, in the case of clause (a), clause (b), clause (c), clause (e), clause (g), clause (h) and clause (i), to the extent the impact of such event, change, occurrence or effect is not disproportionately adverse to the Company Group and the Non-Controlled Joint Ventures Group, taken as a whole, as compared to other companies operating in the geographic markets and industries in which the Company Group and the Non-Controlled Joint Ventures Group conduct business (and provided, further, that in such event, only the incremental disproportionate adverse impact shall be taken into account when determining whether there has been a “Material Adverse Effect”).

“MBR Authority” means an  order issued by FERC pursuant to Section 205 of the FPA authorizing the sale at wholesale of electric energy, capacity and ancillary services at market-based rates, accepting a tariff providing for such sales, and granting such waivers and blanket authorizations as are customarily granted by FERC to a similarly situated company authorized to  sell wholesale electric energy, capacity and ancillary services at market- based rates, including blanket authorization to issue securities and assume liabilities pursuant to Section 204 of the FPA and FERC’s regulations at 18 C.F.R. Part 34.

“Measurement Time” means (a) to the extent Closing is prior to 12:01 a.m. Eastern Time on March 1, 2025, then 12:01 a.m. Eastern Time on the Closing Date or (b) if the Closing is after 12:01 a.m. Eastern Time on March 1, 2025, then 11:59 p.m. Eastern Time on the Locked Box Date.

“MECP Notices” means the notices to be given to the Ontario Ministry of the Environment, Conservation and Parks pursuant to Condition W1(5) of the Amherst Island Wind Energy Project Renewable Energy Approval (Number 7123-9W9NH2) and Condition L1(5) of the Cornwall Solar Project Renewable Energy Approval (Number 3195-92JKTY) within 30 days of any name change required in connection with Section 5.1(i).

“Name Change Notices” means (a) the MECP Notices and (b) written requests for amendment of Ontario Energy Board Electricity Generation Licences EG-2013-0265 and EG-2017-0120 issued to Cornwall Solar Inc. and Windlectric Inc., respectively, to update the licensee name to be made following any name change required in connection with Section 5.1(i).

“NERC” means the North American Electric Reliability Corporation.

“Net Working Capital” means, as of the Measurement Time and without duplication, an amount (which may be positive or negative) equal to (i) the aggregate amount of the assets of the Consolidated Group, VWH, the EBR Project, the Red Lily Project and the Blue Hill Project that are included under the column titled “Net Working Capital” in Exhibit B (for the purpose of VWH, Annex A as set forth in Exhibit A), minus (ii) the aggregate amount of the liabilities of the Consolidated Group, VWH, the EBR Project, the Red Lily Project and the Blue Hill Project that are included under the column titled “Net Working Capital” in Exhibit B (for the purpose of VWH, Annex A as set forth in Exhibit A), in each case, calculated in accordance with the Applicable Accounting Principles.  For the avoidance of doubt, (a) Net Working Capital associated with VWH, the Blue Hill Project, the EBR Project and the Red Lily Project shall be calculated on a pro rata basis in accordance with the Applicable Accounting Principles and (b) Net Working Capital associated with each Tax Equity Company shall be calculated on the basis of the cash allocations between  the applicable Tax Equity Investor and the applicable member of the Company Group or Non-Controlled Joint Ventures Group in accordance with the Applicable Accounting Principles.  Notwithstanding anything to the contrary herein, in no event shall “Net Working Capital” include any amounts with respect to Cash, Indebtedness, Transaction Expenses, Income Tax or Property Tax assets, Income Tax or Property Tax liabilities, the Construction Projects Outstanding Obligations Amount or liabilities incurred and included in the calculation of the Development Projects Adjustment Amount.

“Net Working Capital Adjustment” means an amount, whether positive or negative, equal to Net Working Capital minus the Target Net Working Capital.

“New Market Solar Project” means the solar, electric generation facility with a capacity of approximately 100 MW located in Highland County, Ohio.

“Non-Controlled Joint Ventures” means the entities set forth on Schedule 1.1(g) of the Disclosure Schedules.

“Non-Controlled Joint Ventures Group” means the Non-Controlled Joint Ventures and their respective Subsidiaries.

“Norswiss RNG Project” means the biogas production facility with a capacity of approximately 270 MMBtu/d located in the Town of Barron, Wisconsin.

“Norswiss Tax Equity Amount” means the amount set forth on Schedule 1.1-NTE of the Disclosure Schedules.

“NYISO” means the New York Independent System Operator.

“Operating Projects” means, collectively, (i) as of the date hereof, the Projects set forth on Schedule 1.1(h) of the Disclosure Schedules, and (ii) each Construction Project that achieves commercial operation prior to the Closing Date.

“Operating Projects CapEx Budget” means a budget in respect of capital expenditures associated with the ownership, operation, maintenance and repair of the Operating Projects for the period of time between the date hereof and the Closing Date and attached hereto as Exhibit C-2.

“Order” means any order, directive, judgment, decree, injunction, decision, ruling, award, settlement, stipulation or writ of any Governmental Authority, in each case, other than a Permit.

“Organizational Documents” means, with respect to an entity, such entity’s (a) articles of organization, certificate of incorporation, certificate of formation, declaration of trust or similar document and (b) bylaws, limited liability company operating agreement, partnership agreement, shareholder or other equity holders agreement or similar document to which such entity is a party or by which such entity, or any holders of its Equity Interests, is bound relating to the organization or governance of such entity.

“Owned Real Property” means the real property owned by the Company Group and the Non-Controlled Joint Ventures Group, together with all buildings and other structures, facilities or improvements located thereon.

“Permitted Encumbrance” means (a) statutory liens for current Taxes, assessments, utilities and similar charges not yet due and payable (or which may be paid without interest or penalties) or the validity or amount of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established on the financial statements for the applicable member of the Company Group or the Non-Controlled Joint Ventures Group in accordance with GAAP, (b) construction, materialman’s, mechanics’, carriers’, workers’, repairers’ and other similar liens arising or incurred in the ordinary course of business relating to obligations (i) which are not yet due and payable, (ii) as to which there is no default on the part of the Company Group or the Non-Controlled Joint Ventures Group or (iii) the validity or amount of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established on the financial statements for the applicable member of the Company Group or the Non-Controlled Joint Ventures Group, in accordance with GAAP, (c) pledges, deposits or other liens securing the performance of bids, trade contracts, leases or statutory obligations (including workers’ compensation, unemployment insurance or other social security legislation, but excluding any such pledges, deposits or other liens securing Indebtedness), (d) zoning, entitlement, conservation restriction and other land use and environmental regulations promulgated by Governmental Authorities, (e) liens and encumbrances granted or incurred by Buyer, or arising from Buyer’s actions or omissions, in connection with the financing by Buyer of the transactions contemplated hereby or otherwise arising from Buyer’s activities related to such transactions, (f) all exceptions, restrictions, easements, encroachments, imperfections or minor defects of title, restrictions in the original grant from a Governmental Authority, charges, rights-of-way and other Encumbrances affecting title to any portion of the Project Real Property or the Owned Real Property that do not materially interfere with the current occupancy or use of the property they encumber by the applicable member of the Company Group or the Non-Controlled Joint Ventures Group, as applicable, (g) any liens, encumbrances, title defects or similar conditions attaching to the interests of any counterparty to any Real Property Contract where such liens, encumbrances, title defects or similar conditions do not materially interfere with the current occupancy, use or value of the property they encumber by the applicable member of the Company Group or the Non-Controlled Joint Ventures Group, (h) solely in respect of Project Real Property, the terms, provisions, conditions and limitations of any Real Property Contract (including, without limitation, the rights of others to occupy and use the Project Real Property pursuant to the terms of such Real Property Contract) pursuant to which the Company Group or the Non-Controlled Joint Ventures Group holds any interest in such Project Real Property; provided that such terms, provisions, conditions and limitations (including, without limitation, the rights of others to occupy and use the Project Real Property pursuant to the terms of such Real Property Contract) do not materially interfere with the occupancy, use or value of the property they encumber by the applicable member of the Company Group or the Non-Controlled Joint Ventures Group and (i) liens or other encumbrances set forth in Schedule 1.1-PE of the Disclosure Schedules.

“Permitted Leakage” means, without duplication, solely to the extent that any of the following are cash payments made from any member of the Company Group or the Non-Controlled Joint Ventures Group to Seller or its Related Parties (other than the Company Group and the Non-Controlled Joint Ventures Group) during the Locked Box Period, or as otherwise approved by Buyer in writing, and in all cases subject to Section 5.1: cash payments for corporate overhead charges in accordance with GAAP or for the purchase by the Company Group of insurance policies and information technology-related products and services in the ordinary course of business not to exceed $[Redacted – Commercially Sensitive Information – Monetary Threshold] in the aggregate during any month in the Locked Box Period.

“Person” means an individual, corporation, partnership, limited liability company, limited liability partnership, syndicate, person, trust, association, organization or other entity, including any Governmental Authority, and including any successor, by merger or otherwise, of any of the foregoing.

“Personal Information” means personally identifiable information (including name, address, telephone number, electronic mail address, social security number, bank account number or credit card number), sensitive personal information, or any other information that constitutes “personal information” under Privacy Laws.

“PJM” means PJM Interconnection, L.L.C.

“PJM Tariff” means the PJM Open Access Transmission Tariff.

“Power Marketer” is an entity that does not own or operate a Project and is authorized to buy and resell electricity at market-based rates under Section 205 of the FPA.

“Pre-Closing Reorganization” means (a) the steps and transactions to be carried out, directly or indirectly by Seller, prior to Closing, substantially as described in Schedule 1.1-PCR of the Disclosure Schedules, (b) [Redacted – Commercially Sensitive Information – Negotiations with Third Party], (c) the buy-out by Algonquin Power (Maverick Creek Holdings) Inc. of Liberty Utilities (America) Holdco Inc.’s interest in Algonquin Power (Maverick Creek Wind) Holdings, LLC, and (d) and all such other actions required to reflect the capitalization of the Company Group set forth in Schedule 3.4 of the Disclosure Schedules (in all but de minimis respects).

“Pre-Closing Share Issuance and Acquisition” means the steps to be carried out by the parties to this Agreement, prior to Closing, substantially as described in Section 5.9.

“Pre-FC Purchase Price” means (i) the Base Purchase Price, plus (ii) the Closing Cash, plus (iii) the Closing Net Working Capital Adjustment minus (iv) the Closing Adjustment Indebtedness, minus (v) the Closing Specified Funded Indebtedness, minus (vi) the Closing Transaction Expenses, if any, minus (vii) the Estimated Construction Projects Outstanding Obligations Amount, if any, minus (viii) the Closing Development Projects Adjustment Amount, if any, plus (ix) the Closing Carvers Creek Tax Equity Amount, minus (x) the Clearview Tax Equity Amount, minus, (xi) [Redacted - Commercially Sensitive Information - Negotiations with Third Party], minus (xii) the Closing Leakage Amount, if any, plus (xiii) the Closing Locked Box Period Development Expenditures Amount, if any, minus (xiv) the Development Projects Credit Amount, plus (xv) the Closing Development Projects 2025 Pre-Locked Box Spending Amount, minus (xvi) the Closing Heller RNG Sale-Leaseback Amount, minus (xvii) the Norswiss Tax Equity Amount, minus (xviii) the Closing Property Tax Amount.

“Pre-Relevant Date Tax Period” means, as applicable, (a) if the Closing occurs prior to 12:01 a.m. Eastern Time on March 1, 2025, any taxable period that ends on or before the Closing Date or (b) if the Closing occurs on or after 12:01 a.m. Eastern Time on March 1, 2025, then any taxable period that ends on or before the Locked Box Date.

“Property Tax Amount” means the sum of (i) accrued, but unpaid, Property Taxes of each member of the Company Group in respect of a taxable period that ends on or before the Closing Date, but begins on or after January 1, 2023, and (ii) Property Taxes for which Seller is liable pursuant to, and as calculated in accordance with, Section 5.13(b)(iv) and Section 5.13(b)(v); provided, that any dispute as to the amount of the Property Tax Amount (or items thereof) shall be resolved in accordance with the procedures set forth in Section 2.3, mutatis mutandis.

“Privacy Laws” means all applicable Laws of any Governmental Authority relating to the collection, use, disclosure or protection of information about an individual.

“Project Expenditures Budget” means, collectively, the Operating Project CapEx Budget, the Development Projects Budget and the Locked Box Period Development Budget set forth on Exhibit C attached hereto.

“Project Real Property” means the real property subject to any Real Property Contract.

“Projects” means the renewable energy generation facilities, energy storage facilities, renewable natural gas facilities, thermal generation facility or other comparable facilities or projects set forth on Schedule 1.1(i) of the Disclosure Schedules.

“PTC” means the renewable energy production tax credits provided for pursuant to section 45 and section 45Y of the Code.

“PTC Projects” means, collectively, the Cranell Wind Project, Shady Oaks II Project, the Sandy Ridge II Wind Project, the Stella Wind Project, the East Raymond Wind Project and the West Raymond Wind Project.

“PUCT” means the Public Utility Commission of Texas.

“PUHCA” means the Public Utility Holding Company Act of 2005, 42 U.S.C. §§ 16451, et seq. and FERC’s rules and regulations adopted thereunder.

“PURA” means the Public Utility Regulatory Act, Tex. Util. Code Ann. §§ 11.001-66.016 (West 2021) and the regulations of the PUCT thereunder.

“Purchase Price” means the Estimated Purchase Price, as it may be adjusted in accordance with Section 2.3.

“PURPA” means the Public Utility Regulatory Policies Act of 1978, as amended.

“QF” means “qualifying small power production facilities” or “qualifying cogeneration facilities” as defined in section 3(17)(C) and section 3(18)(B), respectively, of the FPA, and meets the requirements set forth in 18 C.F.R. Part 292 and the applicable regulations of FERC adopted thereunder.

“R&W Insurance Policy” means that certain representation and warranty insurance policy, to the extent obtained by Buyer for the transactions contemplated by this Agreement, in respect of the representations and warranties contained in this Agreement or in any certificate or other instrument contemplated by or delivered in connection with this Agreement.

“R&W Insurer” means the insurer under the R&W Insurance Policy.

“Real Property Contracts” means all leases, subleases, Contracts, grants of Easement, option agreements, emphyteutic agreements or other instruments or documents to which the Company Group or the Non-Controlled Joint Ventures Group is a party and pursuant to which the Company Group or the Non-Controlled Joint Ventures Group holds any interest in real property or an option to acquire an interest in real property.

“RECs” means any credits, including all renewable energy credits as defined in PUCT Substantive Rule §25.173(c)(13) and ERCOT Protocols Section 14.3.2, credit certificates, green tags or similar environmental or green energy attributes (such as those for greenhouse reduction or the generation of green power or renewable energy) created by a Governmental Authority or independent certification board or group generally recognized in the electric power generation industry or the renewable natural gas industry, and generated by or associated with the Project or electricity produced therefrom, including (i) any avoided emissions of pollutants to the air, soil or water such as sulfur oxides (SOx), nitrogen oxides (NOx), carbon monoxide (CO) and other pollutants, (ii) any avoided emissions of carbon dioxides (CO2), methane (CH4), nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride, sulfur hexafluoride and other greenhouse gases (GHGs), and (iii) the reporting rights to the foregoing avoided emissions, but excluding ITCs, PTCs or any other tax benefits.

“Red Lily Project” means the wind-powered, electric generation facility with a capacity of approximately 26 MW located in Saskatchewan, Canada.

“Reference Balance Sheet” means the calculation (with illustrative amounts) of Net Working Capital, Adjustment Indebtedness, Cash and Transaction Expenses prepared in accordance with the Applicable Accounting Principles and as set forth on Exhibit B.

“Related Parties” means, with respect to a Person, such Person’s Affiliates and its and their respective current and former direct and indirect equityholders, members, directors, managers, partners (limited and general), officers, Controlling Persons, employees, agents and Representatives and the respective successors and assigns of each of the foregoing.

“Representatives” means, with respect to any Person, the officers, directors, principals, employees, agents, auditors, advisors, bankers, lenders and other representatives of such Person.

“Required IESO Notice” means the notice of change of control of Windlectric Inc. and Cornwall Solar Inc. to be filed with the IESO within 10 Business Days of Closing pursuant to Feed-in-Tariff Contracts between the Ontario Power Authority and Windlectric Inc. dated February 25, 2011 and FIT Contract between the Ontario Power Authority and Cornwall Solar Inc. dated May 4, 2010, respectively.

“Required PJM Notice” means notice pursuant to Section 2.2 of PJM Manual 14d.

“Required Regulatory Approvals” means (a) the Competition Act Clearance, (b) FERC 203 Approval, (c) Investment Canada Act Approval and (d) FCC Radio License Transfer.

“Required Regulatory Notice” means the informational filing submitted to FERC pursuant to the PJM Tariff, Schedule 2 requesting waiver of the 90-day notice requirement, or the information letter provided to the California Public Utilities Commission for notice of ownership change, as applicable.

“Retained Litigation” has the meaning set forth on Schedule 1.1-RL of the Disclosure Schedules.

“Retained Matters” has the meaning set forth on Schedule 1.1-RM of the Disclosure Schedules.

“Sanctioned Jurisdiction” means a country or territory which is, or, during the past three years, has been, the subject or target of comprehensive U.S. sanctions (as of the date of this Agreement, Cuba, Iran, North Korea, Syria and the Crimea, Donetsk People’s Republic and Luhansk People’s Republic regions of Ukraine) or comprehensive Canadian sanctions (as of the date of this Agreement, North Korea, Syria, and occupied regions of Ukraine, including the Donetsk Oblast, the Luhansk Oblast, the Kherson Oblast, the Zaporizhzhia Oblast and Crimea regions).

“Sanctioned Person” means any Person that is the subject or target of sanctions or restrictions under applicable Laws (including International Trade Laws), including: (a) any Person identified on any applicable U.S. or non-U.S. sanctions- or export-related restricted party list, including but not limited to the Specially Designated Nationals and Blocked Persons List and Sectoral Sanctions Identifications List maintained by OFAC; the Denied Persons, Unverified, or Entity Lists, maintained by the U.S. Department of Commerce’s Bureau of Industry and Security; the Debarred List or non-proliferation sanctions lists maintained by the U.S. State Department’s Directorate of Defense Trade Controls; Global Affairs Canada’s Consolidated Canadian Autonomous Sanctions List, Public Safety Canada’s Listed Terrorist Entities, the regulations made under the Freezing Assets of Corrupt Foreign Officials Act (Canada), or any other similar list maintained by any Sanctions Authority having jurisdiction over the parties to this Agreement; (b) any Person that: (i) is in the aggregate, 50% or greater owned, directly or indirectly, or otherwise Controlled (including control within the meaning of subsection 2(2) of the Special Economic Measures Act (Canada)) by a Person or Persons described in clause (a), (ii) is a Person or Persons described in clause (a) that may alter the power or composition of the board of directors or other governing body of such first Person referenced in this clause (b), or (iii) has property that is deemed to be owned or Controlled by a Person or Persons described in clause (a); or (c) any Person that is organized, resident, or located in a Sanctioned Jurisdiction.

“Sanctions Authority” means the United States government, the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the Bureau of Industry and Security of the U.S. Department of Commerce, the United Nations Security Council, the European Union, any Member State of the European Union and the competent national authorities thereof, the United Kingdom, the Office of Financial Sanctions Implementation of His Majesty’s Treasury, the Export Control Joint Unit of the UK Department of International Trade, the Government of Canada and any other relevant governmental, intergovernmental or supranational body, agency or authority with jurisdiction over the parties to this Agreement.

“Self-Monetization Transactions” means (a) those transactions listed under Item 2 in Schedule 3.21 of the Disclosure Schedules and (b) any transaction entered into after the date hereof between any member of the Company Group or Non-Controlled Joint Ventures Group, on the one hand, and Seller or any Affiliate of Seller (excluding any member of the Company Group or a Non-Controlled Joint Ventures Group) on the other, prior to the Closing Date with respect to the monetization of any tax credits or similar tax benefits with respect to any Project.

“Seller Fundamental Representations” means each of the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.3(a)(i) (but only to the extent of the Organizational Documents of Seller or the Company), Section 3.4, Section 3.5 and Section 3.22.

“Seller Model” means that those certain excel files identified as “Project Power – Corporate rollup” modified on 2/25/24; “Project Power – Development model” modified on 1/28/24; “Project Power – RNG Financial Model” modified on 1/17/24; “Project Power – Solar Financial Model” modified on 1/28/24; “Project Power – Storage Financial Model” modified on 12/20/23  and “Project Power – Wind Financial Model” modified on 1/28/24 and each located within the “Models” folder (which is itself within the “Round 1” folder) and located in the Electronic Data Room.

“Shady Oaks II Project” means the wind-powered, electric generation facility with a capacity of approximately 108 MW located in Lee County, Illinois.

“Specified Consents” means, with respect to a Specified Project, the consent(s) opposite such Specified Project under the column titled “Specified Consents” set forth on Schedule 1.1-SP of the Disclosure Schedules.

“Specified Projects” means the Projects set forth on Schedule 1.1-SP of the Disclosure Schedules.

“Specified Project Value” means, with respect to a Specified Project, the amount opposite such Specified Project under the column titled “Specified Project Value” set forth on Schedule 1.1-SP of the Disclosure Schedules.

[Redacted - Commercially Sensitive Information - Negotiations with Third Party]

“Straddle Period” means, as applicable, (a) if the Closing occurs prior to 12:01 a.m. Eastern Time on March 1, 2025, any taxable period that includes, but does not end on, the Closing Date or (b) if the Closing occurs at or after 12:01 a.m. Eastern Time on March 1, 2025, then any taxable period that includes, but does not end at, 12:01 a.m. Eastern Time, March 1, 2025.

“Subsidiary” means any Person of which the Company directly or indirectly owns at least 50% of the outstanding Equity Interests (which Equity Interests shall include, for the avoidance of doubt, profits interests) or otherwise can direct or Control the operations of such Person. For the avoidance of doubt, neither the Non-Controlled Joint Ventures nor their respective Subsidiaries shall be deemed a “Subsidiary” of any member of the Company Group for purposes of this Agreement.

“Target Net Working Capital” means $33,000,000.

“Tax” or “Taxes” means (a) any Canadian, United States or non-U.S., and non-Canadian, federal, provincial, territorial, state, municipal or local, Canadian, non-U.S. and non-Canadian net income, alternative or add-on minimum, gross income, gross receipts, sales, use, ad valorem, personal property (tangible and intangible), real property (including general and special assessments), goods and services, value added, transfer, franchise, profits, license, withholding, payroll, employment, excise, severance, stamp, deed recording, occupation, premium, environmental or windfall profit tax or any other taxes, fees, assessments, duties or charges of any kind whatsoever in the nature of a tax, imposed by any Governmental Authority, together with any interest, penalties or additions with respect thereto, and (b) any amount described in clause (a) payable by reason of contract, assumption, transferee or successor liability, operation of Law, Treasury Regulations Section 1.1502-6 or otherwise.

“Tax Act” means the Income Tax Act (Canada), as amended.

“Tax Credit Purchase Agreement” means each document listed on Schedule 1.1-TCPA of the Disclosure Schedules.

“Tax Equity Company” means each member of the Company Group or Non-Controlled Joint Ventures Group listed on Schedule 1.1-TEC of the Disclosure Schedule, as such Disclosure Schedule may be amended pursuant to Section 5.25.

“Tax Equity Document” means each document listed on Schedule 1.1-TED of the Disclosure Schedule, as such Disclosure Schedule may be amended pursuant to Section 5.25.

“Tax Equity Investor” means each Person party to a Tax Equity Document other than a member of the Company Group or the Non-Controlled Joint Ventures Group.

“Tax Indemnification Event” means a Final Determination having been made by a Governmental Authority or a court of competent jurisdiction regarding a liability for Taxes.

“Tax Return” means any federal, state, provincial, local, foreign and other return, declaration, report or similar statement filed or required to be filed with a Governmental Authority with respect to any Taxes (and any attached schedules), including any information return, claim for refund, declaration of estimated Tax and amendment to any of the foregoing.

“Taxing Authority” means any Governmental Authority having jurisdiction to impose any Tax or responsible for the administration or collection of any Tax.

“Transaction Expenses” means, to the extent not paid by Seller or otherwise prior to the Closing Date, (a) the fees, costs and expenses incurred by the Company Group or the Non-Controlled Joint Ventures Group on or prior to the Closing Date in connection with the transactions contemplated by this Agreement, (b) the amount of any sale bonuses, change in control bonuses or similar bonuses or payments that become payable upon the consummation of or directly in connection with the transactions contemplated by this Agreement and the [Redacted – Commercially Sensitive Information – Information Related to Employees], and the employer portion of any payroll and employment Taxes on such amounts and (c) all other fees payable to a third party in connection with the transactions contemplated by this Agreement to the extent not otherwise included in clause (a) above; provided, that, with respect to the employer portion of any social security Taxes such amount shall only be included as a Transaction Expense to the extent the compensation of the applicable recipient or beneficiary of such payment would be less than, or is less than, the social security wage base limit in effect for such year based on such recipient’s ordinary annual compensation (assuming such recipient or beneficiary remained employed for the entire year).

“Transition Services Agreement” means the Transition Services Agreement in the form of Exhibit E hereto.

“Treasury Regulations” means the United States Treasury Regulations promulgated under the Code.

“VWH” means Vela Wind Holdco, LLC, a Delaware limited liability company.

“WARN Act” means the Worker Adjustment and Retraining Notification Act.

“Willful Breach” means a deliberate act or failure to act, which such act or failure to act constitutes in and of itself a material breach of any covenant or agreement set forth in this Agreement, regardless of whether breaching such covenant or other agreement was the conscious object of the act or failure to act.

Section 1.2           Table of Definitions. The following terms have the meanings set forth in the sections referenced below:

Acceptable Transferee	5.12(b)
Acquisition Engagement	9.21(a)
Agreement	Preamble
Alternative Financing	5.22(c)
Anti-Corruption Laws	3.8(c)
Anti-Money Laundering Laws	4.8
APBHH	3.6(f)
APBHH Balance Sheet	3.6(f)
APBHH Business Financial Statements	3.6(f)
Balance Sheet	3.6(a)

Business Cash Flow Statements	3.6(j)
Business Financial Statements	3.6(a)
Buyer	Preamble
Buyer Credit Support Cap	5.11(a)
Buyer Indemnified Party	7.1
Buyer Letter of Credit	5.11(b)
Buyer Parties	5.15(b)
Buyer Releasees	9.25(b)
Buyer Releasors	9.25(a)
Buyer Termination Fee	8.3(a)
Carvers Creek TE Shortfall Amount	2.3(j)(i)
Clearview Tax Equity Documents	5.25(c)(i)
Closing	2.2(a)
Closing Carvers Creek Tax Equity Amount	2.3(b)
Closing Cash	2.3(b)
Closing Date	2.2(a)
Closing Development Projects 2025 Pre-Locked Box Spending Amount	2.3(b)
Closing Development Projects Adjustment Amount	2.3(b)
Closing Heller RNG Sale-Leaseback Amount	2.3(b)
Closing Indebtedness	2.3(b)
Closing Leakage Amount	2.3(b)
Closing Locked Box Period Capital Expenditure Amount	2.3(b)
Closing Net Working Capital	2.3(b)
Closing Property Tax Amount	2.3(b)
Closing Specified Funded Indebtedness	2.3(b)
Closing Transaction Expenses	2.3(b)
Company	Recitals
Company Partnership	5.13(b)(iv)(1)
Company Trusts	5.13(b)(iv)(2)
Condemnation Value	5.29(b)
Confidential Information	5.4
Construction	1.1
Continuing Credit Support Obligations	5.11(b)
Continuing Employee	5.20(a)
Counsel Communications	9.21(b)
CRA	5.13(b)(iv)(1)
Cross-Currency Swaps	5.36
Debt Financing	4.4(d)
Definitive Agreements	5.22(a)
Disclosed Personal Information	5.10
Disqualified Transferee	5.12(b)
DPA	4.12
EBR	3.6(d)
EBR Balance Sheet	3.6(d)
EBR Business Financial Statements	3.6(d)

Electronic Data Room

9.7

Employee Plans	3.10(a)
Equity Financing	4.4(c)
Estimated Carvers Creek Tax Equity Amount	2.3(a)
Estimated Cash	2.3(a)
Estimated Construction Projects Outstanding Obligations Amount	2.3(a)
Estimated Development Projects 2025 Pre-Locked Box Spending Amount	2.3(a)
Estimated Development Projects Adjustment Amount	2.3(a)
Estimated Heller RNG Sale-Leaseback Amount	2.3(a)
Estimated Indebtedness	2.3(a)
Estimated Leakage Amount	2.3(a)
Estimated Locked Box Period Capital Expenditure Amount	2.3(a)
Estimated Net Working Capital	2.3(a)
Estimated Property Tax Amount	2.3(a)
Estimated Specified Funded Indebtedness	2.3(a)
Estimated Transaction Expenses	2.3(a)
Event of Loss	5.29(a)
Excess Credit Support Obligations	5.11(a)
Existing Credit Support Obligations	5.11(a)
FC Adjustment Amount	2.3(i)
FC Construction Projects Outstanding Obligations Amount	2.3(i)
FC Notice of Disagreement	2.3(i)
Final Closing Statement	2.3(b)
Final Completion Statement	2.3(i)
Financing Amounts	4.4(a)
Golden Share	5.9(b)
HSR Act	3.3(b)
Indemnified Party	7.2(a)
Indemnifying Party	7.2(a)
Indemnified Taxes	5.13(b)(vii)
Independent Accounting Firm	2.3(d)
Independent Expert	5.29(b)
Initial Extended Termination Date	8.1(c)
Initial Termination Date	8.1(c)
Insurance Policies	3.12
Interim Development Credit Support Obligation	5.11(b)
Interim Period	5.13(b)(iv)(5)(c)
Intragroup Balances	5.15(a)
Joint Venture	9.7
Lost Profits	5.29(b)
Major Loss	5.29(c)
Mandatory Reporting Rules	5.13(b)(i)
[Redacted – Confidential Information]	5.18(a)
[Redacted – Confidential Information]	5.18(a)
Material Adverse Effect	6.2(a)
Material Contracts	3.18(a)
Net Pre-FC Adjustment Amount	2.3(g)(i)

New Preferred Shares	5.9(a)
Non-Party Affiliate	9.24(a)
Notice of Claim	7.2(e)
Notice of Disagreement	2.3(c)
OFAC	1.1
Other Transaction FERC 203 Application	5.5(h)
Permits	3.8(b)
Potential Contributor	7.3
Power Generation Company	3.20(e)
Pre-Consummation Warning Letter	5.5(i)
Preliminary Closing Statement	2.3(a)
PRH	3.6(e)
PRH Balance Sheet	3.6(e)
PRH Business Financial Statements	3.6(e)
Proceeds	5.29(b)
Project Power	9.7
Property Taxes	5.13(b)(iv)
Purchased Interests	Recitals
Qualified Transferee	3.18(a)(xiii)
Recipient	1.1
Renewable Energy Credit Generator	3.20(e)
Resource Entity	3.20(e)
Restoration Costs	5.29(b)
Retained Names and Marks	5.14(a)
RLWEP	3.6(c)
RLWEP Balance Sheet	3.6(c)
RLWEP Business Financial Statements	3.6(c)
RNG Partnership Flip Documents	5.25(f)
RNG Sale-Leaseback Documents	5.25(e)
Second Extended Termination Date	8.1(c)
Seller	Preamble
Seller Credit Support Cap	5.11(b)
Seller Credit Support Continuing Documents	5.11(b)
Seller Credit Support Obligations	5.11(b)
Seller Parties	5.15(b)
Seller Releasees	9.25(a)
Seller Releasors	9.25(b)
Seller/Company Acquisition Counsel	9.21(a)
Shady Oaks II Tax Equity Documents	5.25(d)
Specified Funded Indebtedness	2.2(b)(ii)
[Redacted – Commercially Sensitive Information – Negotiations with Third Party]	5.18(a)
[Redacted – Commercially Sensitive Information – Negotiations with Third Party]	5.30
Stub Company Partnership Year Ends	5.13(b)(iv)(1)
Subject Employees	3.11(b)
Subsidiary	9.7

Taking	5.29(a)
Tax Audit	5.13(b)(vii)
Tax Equity Company	5.25(c)(iv
Tax Equity Documents	5.25(c)(iv)
Termination Date	8.1(c)
Third Party Claim	7.2(a)
Transfer Taxes	5.13(a)
ULC Conversions	5.1(i)
VWH	3.6(g)
VWH Balance Sheet	3.6(g)

ARTICLE II

PURCHASE AND SALE

Section 2.1          Purchase and Sale of the Purchased Interests. Upon the terms and subject to the conditions of this Agreement, at the Closing, Seller shall sell, assign, transfer, convey and deliver the Purchased Interests to Buyer and Buyer shall purchase the Purchased Interests from Seller, free and clear of all Encumbrances (other than restrictions on transfer that may arise under applicable securities Laws) for the consideration specified below in this Article II.

Section 2.2           Closing.

(a)        The sale and purchase of the Purchased Interests shall take place at a closing (the “Closing”), which shall occur remotely via electronic exchange of documentation and consideration required to be delivered at the Closing, at 8:00 a.m., Eastern Time, on the fifth Business Day following the satisfaction or, to the extent permitted by applicable Law, waiver of all conditions to the obligations of the parties set forth in Article VI (other than those conditions to be satisfied at or in connection with the Closing itself, but subject to the satisfaction or waiver of such conditions at such time), or at such other place, time or date as Buyer and Seller mutually may agree in writing. The date on which the Closing actually takes place is referred to as the “Closing Date”.  For accounting purposes, the Closing shall be deemed effective as of 12:01 a.m., Eastern Time, on the Closing Date.

(b)          At the Closing, the following deliveries shall occur:

(i)           Buyer shall deliver, or cause to be delivered, to Seller an amount equal to the Estimated Purchase Price by wire transfer of immediately available funds;

(ii)         Buyer shall deliver, or cause to be delivered, on behalf of the Company or its applicable Affiliate, the amount payable to each counterparty or holder of indebtedness identified on Schedule 2.2(b)(ii) of the Disclosure Schedules (such indebtedness, the “Specified Funded Indebtedness”), other than the Existing Company Notes and the promissory notes set forth in clause (xi) below, in order to fully discharge such Specified Funded Indebtedness (other than the Existing Company Notes) and terminate all applicable obligations and liabilities of the Company and any of its Affiliates related thereto;

(iii)       Seller shall deliver, or cause to be delivered, to Buyer (A) payoff letters, in form and substance reasonably satisfactory to Buyer, duly executed by the holders of the Specified Funded Indebtedness (other than the Existing Company Notes) and (B) evidence of the release of any Encumbrances granted in respect of Specified Funded Indebtedness (other than the Existing Company Notes);

(iv)        Buyer shall deliver, or cause to be delivered, to Seller a certificate to the effect set forth in Section 6.2(a) and Section 6.2(b), signed by a duly authorized officer thereof;

(v)         Buyer shall deliver, or cause to be delivered to Seller, a duly executed counterpart of the Earnout Agreement by each Earnout Payor (as defined in the Earnout Agreement);

 

(vi)        Seller shall deliver, or cause to be delivered to Buyer, a certificate to the effect set forth in Section 6.3(a) and Section 6.3(b), signed by a duly authorized officer thereof;

(vii)       Seller shall deliver, or cause to be delivered to Buyer, a duly executed Transition Services Agreement between the Company and Seller;

(viii)      Seller shall deliver, or cause to be delivered to Buyer, a duly executed counterpart of the Earnout Agreement by Seller;

(ix)        Seller shall deliver, or cause to be delivered to Buyer, letters of resignation from the directors or managers of the Company and each of its Subsidiaries, effective as of the Closing, to the extent requested by Buyer in writing at least five Business Days prior to the Closing Date;

(x)         Seller shall deliver, or cause to be delivered, to Buyer a properly completed IRS Form W-8BEN-E, an affidavit, executed by Algonquin Power (America) Inc. under penalties of perjury, stating that capital stock of Algonquin Power (America) Inc. is not a “U.S. real property interest” pursuant to Treasury Regulations Section 1.1445-2(c)(3), dated as of the Closing Date, and proof, reasonably satisfactory to Buyer that Algonquin Power (America) Inc. has provided notice of such affidavit to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2);

(xi)        Seller shall deliver, or cause to be delivered, to Buyer evidence in form and substance reasonably satisfactory to Buyer that each of (A) the Intercompany Financing Agreement, (B) that certain promissory note dated July 17, 2021 issued by Algonquin Power (Canada) Holdings Inc. to Seller with a principal sum of $100,000,000 and (C) that certain promissory note dated as of July 16, 2023 issued by Algonquin Power (Canada) Holdings Inc. to Seller (in each case, as may have been amended prior to the date hereof), has been, or will be substantially concurrently with the Closing, terminated; and

(xii)       Seller shall deliver, or cause to be delivered to Buyer, a duly executed certification pursuant to Treasury Regulation Section 1.1446(f)-2(b)(4)(i)(A)(1) from each Canadian member of the Company Group that is classified as a partnership for U.S. federal income tax purposes.

(c)          All payments hereunder are being made by wire transfer of immediately available funds in United States dollars to such account as may be designated to the payor by the payee prior to the date hereof.

Section 2.3          Purchase Price Adjustments.

(a)          At least three Business Days prior to the Closing Date, Seller shall prepare, or cause to be prepared, and deliver to Buyer a statement (the “Preliminary Closing Statement”) that sets forth (i) a good-faith estimate of (A) the Net Working Capital Adjustment (the “Estimated Net Working Capital Adjustment”) as of the Measurement Time, (B) Adjustment Indebtedness (the “Estimated Adjustment Indebtedness”) as of the Measurement Time, (C) Specified Funded Indebtedness (the “Estimated Specified Funded Indebtedness”) (which shall include, for this purpose, a calculation of (x) the amount of Existing Company Notes, (y) interest payments owed in respect of Specified Funded Indebtedness but only to the extent of interest accrued prior to the Measurement Time, and (z) any prepayment penalty or premium, in each case, utilizing the applicable Conversion Rate) as of the Closing Date, (D) Cash (the “Estimated Cash”) as of the Measurement Time, (E) Transaction Expenses (the “Estimated Transaction Expenses”) as of the Closing Date, (F) Construction Projects Outstanding Obligations Amount (the “Estimated Construction Projects Outstanding Obligations Amount”) as of the Closing Date, if any, (G) the Development Projects Adjustment Amount as of the earlier of the Closing Date or December 31, 2024 (the “Estimated Development Projects Adjustment Amount”), (H) Property Tax Amount (the “Estimated Property Tax Amount”) as of the Measurement Time,  (I) the Carvers Creek Tax Equity Amount (the “Estimated Carvers Creek Tax Equity Amount”) as of the Closing Date, (J) the Clearview Tax Equity Amount, (K) solely if the Closing Date is after the Locked Box Date, the Leakage Amount (the “Estimated Leakage Amount”) as of the Closing Date, (L) solely if the Closing Date is after the Locked Box Date, the Locked Box Period Development Expenditure Amount (the “Estimated Locked Box Period Capital Expenditure Amount”) as of the Closing Date, (M) solely if the Closing Date has not occurred on or prior to December 31, 2024, the Development Projects 2025 Pre-Locked Box Spending Amount (the “Estimated Development Projects 2025 Pre-Locked Box Spending Amount”) as of  the Measurement Time, (N) the Heller RNG Sale-Leaseback Amount (the “Estimated Heller RNG Sale-Leaseback Amount”) as of the Closing Date, (O) the Development Projects Credit Amount and (P) the Norswiss Tax Equity Amount, based on the Company’s books and records and other information available at the Closing, and prepared on a basis consistent with the Applicable Accounting Principles and definitions herein, and (ii) using the amounts referred to in the preceding clause (i), a calculation of the Estimated Purchase Price (including the amounts contemplated in clause (xi) of the definition thereof).

(b)         Within 90 days after the Closing Date, Buyer shall cause to be prepared and delivered to Seller a written statement (the “Final Pre-FC Closing Statement”) that sets forth (i) a good faith calculation in reasonable detail, including reasonably supporting documentation of such amounts, of the actual (A) Net Working Capital Adjustment (“Closing Net Working Capital Adjustment”) as of the Measurement Time, (B) Adjustment Indebtedness (“Closing Adjustment Indebtedness”) as of the Measurement Time, (C) Specified Funded Indebtedness (“Closing Specified Funded Indebtedness”) (which shall include, for this purpose, a calculation of (x) the amount of Existing Company Notes, (y) interest payments owed in respect of Specified Funded Indebtedness but only to the extent of interest accrued prior to the Measurement Time, and (z) any prepayment penalty or premium, in each case, utilizing the applicable Conversion Rate) as of the Closing Date, (D) Cash (“Closing Cash”) as of the Measurement Time, (E) Transaction Expenses (“Closing Transaction Expenses”) as of the Closing Date, (F) Development Projects Adjustment Amount (“Closing Development Projects Adjustment Amount”) as of the earlier of the Closing Date or December 31, 2024, (G) Carvers Creek Tax Equity Amount (the “Closing Carvers Creek Tax Equity Amount”) as of the Closing Date, (H) Property Tax Amount (the “Closing Property Tax Amount”) as of the Measurement Time, (I) solely if the Closing Date is after the Locked Box Date, Leakage Amount (the “Closing Leakage Amount”) as of the Closing Date, (J) solely if the Closing Date is after the Locked Box Date, Locked Box Period Development Expenditure Amount (the “Closing Locked Box Period Capital Expenditure Amount”) as of the Closing Date, (K) solely if the Closing Date has not occurred on or prior to December 31, 2024, Development Projects 2025 Pre-Locked Box Spending Amount (the “Closing Development Projects 2025 Pre-Locked Box Spending Amount”) as of the Measurement Time, and (L) and the Heller RNG Sale-Leaseback Amount (the “Closing Heller RNG Sale-Leaseback Amount”) as of the Closing Date, and (ii) using the amounts referred to in the preceding clause (i) and the Estimated Construction Projects Outstanding Obligations Amount provided by Seller, a calculation of the Pre-FC Purchase Price derived therefrom (including the amounts contemplated in clause (xi) of the definition of Pre-FC Purchase Price).  The Final Pre-FC Closing Statement shall be prepared on a basis consistent with the Applicable Accounting Principles and definitions herein.  For the avoidance of doubt, adjustments associated with the Construction Projects Outstanding Obligations Amount are addressed in Section 2.3(i).

(c)          The Final Pre-FC Closing Statement shall become final and binding on the 60th day following delivery thereof, unless prior to the end of such period, Seller delivers to Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any dispute as to the Closing Net Working Capital Adjustment, Closing Adjustment Indebtedness, Closing Specified Funded Indebtedness, Closing Cash, Closing Transaction Expenses, Closing Development Projects Adjustment Amount, Closing Carvers Creek Tax Equity Amount, Closing Property Tax Amount, Closing Leakage Amount, Closing Locked Box Period Capital Expenditure Amount and/or Closing Development Projects 2025 Pre-Locked Box Spending Amount, as set forth in the Final Pre-FC Closing Statement.  Seller shall be deemed to have agreed with all items and amounts of Closing Net Working Capital, Closing Adjustment Indebtedness, Closing Specified Funded Indebtedness, Closing Net Working Capital Adjustment, Closing Adjustment Indebtedness, Closing Specified Funded Indebtedness, Closing Cash, Closing Transaction Expenses, Closing Development Projects Adjustment Amount, Closing Carvers Creek Tax Equity Amount, Closing Property Tax Amount, Closing Leakage Amount, Closing Locked Box Period Capital Expenditure Amount, Closing Development Projects 2025 Pre-Locked Box Spending Amount and/or Closing Heller RNG Sale-Leaseback Amount, not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.3(d).

(d)         During the 30-day period following delivery of a Notice of Disagreement by Seller to Buyer, the parties in good faith shall seek to resolve in writing any differences that they may have with respect to the calculation of the Closing Net Working Capital Adjustment, Closing Adjustment Indebtedness, Closing Specified Funded Indebtedness (which shall include, for this purpose, a calculation of (x) the amount of Existing Company Notes, (y) interest payments owed in respect of Specified Funded Indebtedness but only to the extent of interest accrued prior to the Measurement Time, and (z) any prepayment penalty or premium, in each case, utilizing the applicable Conversion Rate), Closing Cash, Closing Transaction Expenses, Closing Development Projects Adjustment Amount, Closing Carvers Creek Tax Equity Amount, Closing Property Tax Amount, Closing Leakage Amount, Closing Locked Box Period Capital Expenditure Amount, Closing Development Projects 2025 Pre-Locked Box Spending Amount and/or Closing Heller RNG Sale-Leaseback Amount, as specified therein.  Any disputed items resolved in writing between Buyer and Seller within such 30‑day period (or such longer time period as mutually agreed by the parties) shall be final and binding with respect to such items, and if Buyer and Seller agree in writing on the resolution of each disputed item specified by Seller in the Notice of Disagreement and the amount of the Closing Net Working Capital Adjustment, Closing Adjustment Indebtedness, Closing Specified Funded Indebtedness, Closing Cash, Closing Transaction Expenses, Closing Development Projects Adjustment Amount, Closing Carvers Creek Tax Equity Amount, Closing Property Tax Amount, Closing Leakage Amount, Closing Locked Box Period Capital Expenditure Amount, Closing Development Projects 2025 Pre-Locked Box Spending Amount and/or Closing Heller RNG Sale-Leaseback Amount, the amounts so determined shall be final and binding on the parties for all purposes hereunder.  If Buyer and Seller have not resolved all such differences by the end of such 30-day period, Buyer and Seller shall submit, in writing, to an independent public accounting firm jointly retained by Buyer and Seller (the “Independent Accounting Firm”), their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amounts of the Closing Net Working Capital Adjustment, Closing Adjustment Indebtedness, Closing Specified Funded Indebtedness, Closing Cash, Closing Transaction Expenses, Closing Development Projects Adjustment Amount, Closing Carvers Creek Tax Equity Amount, Closing Property Tax Amount, Closing Leakage Amount, Closing Locked Box Period Capital Expenditure Amount, Closing Development Projects 2025 Pre-Locked Box Spending Amount and/or Closing Heller RNG Sale-Leaseback Amount, and the Independent Accounting Firm shall make a written determination as to each such disputed item and the amount of the Closing Net Working Capital Adjustment, Closing Adjustment Indebtedness, Closing Specified Funded Indebtedness, Closing Cash, Closing Transaction Expenses, Closing Development Projects Adjustment Amount, Closing Carvers Creek Tax Equity Amount, Closing Property Tax Amount, Closing Leakage Amount, Closing Locked Box Period Capital Expenditure Amount, Closing Development Projects 2025 Pre-Locked Box Spending Amount and/or Closing Heller RNG Sale-Leaseback Amount.  The Independent Accounting Firm shall be BDO USA, P.C. or, if such firm is unable or unwilling to act, such other independent, internationally recognized public accounting or consulting firm with an active practice area focused on post-mergers and acquisitions purchase price dispute resolution reasonably acceptable to and agreed in writing by Buyer and Seller.  Buyer and Seller shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it within 30 days following the submission thereof.  All communications with the Independent Accounting Firm shall include at least one Representative of each of Buyer and Seller, and no party shall be permitted to communicate with the Independent Accounting Firm other than as expressly set forth herein.  The Independent Accounting Firm shall consider only those items and amounts in Buyer’s and Seller’s respective calculations of the Closing Net Working Capital Adjustment, Closing Adjustment Indebtedness, Closing Specified Funded Indebtedness, Closing Cash, Closing Transaction Expenses, Closing Development Projects Adjustment Amount, Closing Carvers Creek Tax Equity Amount, Closing Property Tax Amount, Closing Leakage Amount, Closing Locked Box Period Capital Expenditure Amount, Closing Development Projects 2025 Pre-Locked Box Spending Amount and/or Closing Heller RNG Sale-Leaseback Amount that are identified as being items and amounts to which Buyer and Seller have been unable to agree.  The Independent Accounting Firm shall not be permitted to make any determination as to whether the Target Net Working Capital or any estimates on the Preliminary Closing Statement are adequate or sufficient.  In resolving any disputed item, the Independent Accounting Firm may not assign a value to any item greater than the greatest value or less than the smallest value for such item set forth on the Preliminary Closing Statement or the Final Pre-FC Closing Statement, as applicable.  The Independent Accounting Firm’s determination of the Closing Net Working Capital Adjustment, Closing Adjustment Indebtedness, Closing Specified Funded Indebtedness, Closing Cash, Closing Transaction Expenses, Closing Development Projects Adjustment Amount, Closing Carvers Creek Tax Equity Amount, Closing Property Tax Amount, Closing Leakage Amount, Closing Locked Box Period Capital Expenditure Amount, Closing Development Projects 2025 Pre-Locked Box Spending Amount and/or Closing Heller RNG Sale-Leaseback Amount shall be based solely on written materials submitted by Buyer and Seller (i.e., not on independent review).  The determination of the Independent Accounting Firm shall be conclusive and binding upon the parties hereto, absent fraud or manifest error, and shall not be subject to appeal or further review.  Judgment may be entered upon the written determination of the Independent Accounting Firm in accordance with Section 9.11.  In acting under this Agreement, the Independent Accounting Firm shall function solely as an expert and not as an arbitrator; provided, that the Independent Accounting Firm shall have the power to conclusively resolve differences in disputed items as specified in this Agreement.

(e)         The costs of any dispute resolution pursuant to this Section 2.3, including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be between Buyer and Seller based upon the percentage of the aggregate contested amount submitted to the Independent Accounting Firm that is ultimately awarded to Buyer, on the one hand, or Seller, on the other hand, such that Buyer bears a percentage of such costs and expenses equal to the percentage of the contested amount awarded to Seller and Seller bears a percentage of such costs and expenses equal to the percentage of the contested amount awarded to Buyer.  For illustrative purposes only, if the contested amount submitted to the Independent Accounting Firm is $1,000,000, and the Independent Accounting Firm determines that Buyer has a valid claim for $400,000 of the $1,000,000, Buyer shall bear 60% of the fees and expenses of the Accountant and Seller shall bear the remaining 40% of the fees and expenses of the Independent Accounting Firm.  For the avoidance of doubt, the fees and disbursements of the representatives of each Party incurred in connection with the preparation or review of the Final Pre-FC Closing Statement and any Notice of Disagreement, as well as any submissions and responses to the Independent Accounting Firm, as applicable, shall be borne by such Party.

(f)         Buyer and Seller will, and will cause the Company (in the case of Seller, prior to the Closing and, in the case of Buyer, during the period from and after the date of delivery of the Final Pre-FC Closing Statement through the resolution of any adjustment to the Purchase Price contemplated by this Section 2.3) to, afford the other party and its Representatives reasonable access, during normal business hours and upon reasonable prior notice, to the personnel, properties, books and records of the Company Group and to any other information reasonably requested for purposes of preparing and reviewing the calculations contemplated by this Section 2.3.  Each party shall authorize its accountants to disclose work papers generated by such accountants in connection with preparing and reviewing the calculations specified in this Section 2.3; provided, that such accountants shall not be obligated to make any work papers available except in accordance with such accountants’ disclosure procedures and then only after the non-client party has signed an agreement relating to access to such work papers in form and substance acceptable to such accountants.

(g)         The Pre-FC Purchase Price shall be determined by adjusting the Estimated Purchase Price upwards or downwards, as follows:

(i)          For the purposes of this Agreement, the “Net Pre-FC Adjustment Amount” means an amount, which may be positive or negative, equal to (A) the Closing Net Working Capital Adjustment as finally determined pursuant to this Section 2.3 minus the Estimated Net Working Capital Adjustment, minus (B) the Closing Adjustment  Indebtedness as finally determined pursuant to this Section 2.3 minus the Estimated Adjustment Indebtedness, minus (C) the Closing Specified Funded Indebtedness as finally determined pursuant to this Section 2.3 minus the Estimated Specified Funded Indebtedness,  plus (D) the Closing Cash as finally determined pursuant to this Section 2.3 minus the Estimated Cash, minus (E) the Closing Development Projects Adjustment Amount minus the Estimated Development Projects Adjustment Amount, plus (F) the Closing Carvers Creek Tax Equity Amount as finally determined pursuant to this Section 2.3 minus the Estimated Carvers Creek Tax Equity Amount, minus (G) the Closing Transaction Expenses as finally determined pursuant to this Section 2.3 minus the Estimated Transaction Expenses, minus (H) the Closing Property Tax Amount as finally determined pursuant to this Section 2.3, minus  the Estimated Property Tax Amount, minus (I) the Closing Leakage Amount minus the Estimated Leakage Amount, plus (J) the Closing Locked Box Period Capital Expenditure Amount minus the Estimated Locked Box Period Capital Expenditure Amount, plus (K) the Closing Development Projects 2025 Pre-Locked Box Spending Amount minus the Estimated Development Projects 2025 Pre-Locked Box Spending Amount, minus (L) the Closing Heller RNG Sale-Leaseback Amount minus the Estimated Heller RNG Sale-Leaseback Amount;

(ii)         If the Net Pre-FC Adjustment Amount is positive, then (A) the Estimated Purchase Price shall be adjusted upwards in an amount equal to the Net Pre-FC Adjustment Amount and (B) Buyer shall pay the Net Pre-FC Adjustment Amount to Seller;

(iii)        If the Net Pre-FC Adjustment Amount is negative (in which case the “Net Pre-FC Adjustment Amount” for purposes of this clause (iii) shall be deemed to be equal to the absolute value of such amount), then (A) the Estimated Purchase Price shall be adjusted downwards in an amount equal to the Net Pre-FC Adjustment Amount and (B) Seller shall pay the Net Pre-FC Adjustment Amount to Buyer;

(iv)        If the Net Pre-FC Adjustment Amount is zero, then there shall be no adjustment to the Estimated Purchase Price.

(h)         Payments in respect of Section 2.3(g) shall be made within five Business Days after the date on which the Net Adjustment Amount is finally determined pursuant to this Section 2.3 by wire transfer of immediately available funds to such account or accounts as may be designated in writing by the party entitled to such payment at least two Business Days prior to such payment date.  Amounts to be paid pursuant to Section 2.3(g) shall bear interest from the Closing Date to the date of such payment at a rate equal to the rate of interest from time to time announced publicly by The Wall Street Journal as its prime rate plus 3%, calculated on the basis of a year of 365 days and the number of days elapsed.

(i)          Within 90 days after the later of (x) the Closing Date and (y) the date on which the last of the Construction Projects has achieved Final Completion as notified by Buyer to Seller, Buyer shall cause to be prepared and delivered to Seller a written statement (the “Final Completion Statement”) that sets forth a good faith calculation in reasonable detail of the actual Construction Projects Outstanding Obligations Amount (the “FC Construction Projects Outstanding Obligations Amount”).  The Final Completion Statement shall become final and binding on the 60th day following delivery thereof, unless prior to the end of such period, Seller delivers to Buyer written notice of its disagreement (a “FC Notice of Disagreement”) specifying the nature and amount of any dispute as to the FC Construction Projects Outstanding Obligations Amount.  If Seller delivers an FC Notice of Disagreement, the Parties shall proceed in accordance with Section 2.3(d), mutatis mutandis, to resolve such dispute and the provisions of Section 2.3(e) and Section 2.3(f) shall likewise apply in connection therewith; provided, however, that, for purposes of this Section 2.3(i), the “Independent Accounting Firm” shall be deemed to be a nationally-recognized independent engineer with experience in the construction and commissioning of renewable power generation facilities, as mutually agreed by the Parties.  For the purposes of this Agreement, the “FC Adjustment Amount” means an amount, which may be positive or negative, equal to (A) the FC Construction Projects Outstanding Obligations Amount as finally determined pursuant to this Section 2.3(i) minus (B) the Estimated Construction Projects Outstanding Obligations Amount. If the FC Adjustment Amount is positive, then Seller shall pay Buyer the FC Adjustment Amount.  If the FC Adjustment Amount is negative, then Buyer shall pay Seller the absolute value of the FC Adjustment Amount.  Payment of the FC Adjustment Amount shall be made as provided in Section 2.3(g), mutatis mutandis.  The final Purchase Price shall be the Pre-FC Purchase Price determined pursuant to Section 2.3(g) as adjusted upward or downward, as applicable, by the FC Adjustment Amount.

(j)          Carvers Creek Post-Closing Tax Equity Adjustments.

(i)         On the date which falls 90 days after the Closing Date, Buyer shall calculate an amount (the “Carvers Creek TE Shortfall Amount”) equal to the difference, if any, of (A) the Closing Carvers Creek Tax Equity Amount minus (B) the sum of (1) the Carvers Creek Cash Component plus (2) the amount received by Buyer post-Closing from the Tax Equity Investor in respect of an investment into Carvers Creek Holdco under the Carvers Creek Tax Equity Documents and shall thereafter notify Seller of the Carvers Creek TE Shortfall Amount.  In the event that the Carvers Creek TE Shortfall Amount is positive, Seller shall pay Buyer such amount within five Business Days after the date on which Buyer has notified Seller of the Carvers Creek TE Shortfall Amount by wire transfer of immediately available funds to such account or accounts as may be designated in writing by Buyer at least two Business Days prior to such payment date.

(ii)        In the event that, subsequent to the payment by Seller to Buyer of the Carvers Creek TE Shortfall Amount but prior to December 31, 2025, Buyer receives a payment in respect of an equity investment by the Tax Equity Investor into Carvers Creek Holdco under the Carvers Creek Tax Equity Documents, Buyer shall promptly notify Seller and pay Seller such amount so received within five Business Days after the date on which Buyer has notified Seller of such receipt by wire transfer of immediately available funds to such account or accounts as may be designated in writing by Seller at least two Business Days prior to such payment date.   Any payment made under this Section 2.3(j)(ii) shall reduce the Carvers Creek TE Shortfall Amount.

(k)         Buyer and Seller agree that any adjustment as determined pursuant to this Section 2.3 will be treated and reported as an adjustment to the Purchase Price for applicable Tax purposes, except as otherwise required by applicable Law.

Section 2.4         Tax Withholding. Each of Buyer and Seller shall be entitled to deduct and withhold from any amount otherwise payable to any Person pursuant to this Agreement all Taxes or any other amounts that are required to be deducted and withheld with respect to such payment under the Code, the Treasury Regulations, the Tax Act or any other provision of applicable Law; provided, that, prior to making any such deduction or withholding (other than any deduction or withholding attributable to the failure to provide any tax form or certificate described in Section 2.2(b)(x) or Section 2.2(b)(xii)), the withholding party shall notify the other party in writing of such contemplated deduction or withholding no less than five Business Days prior to such contemplated deduction or withholding and shall reasonably cooperate with each other and use commercially reasonable efforts to reduce, mitigate, or otherwise eliminate such deduction or withholding to the maximum extent permitted by applicable Law.  Any amounts deducted or withheld from any such payment in accordance with the terms of this Section 2.4 shall be timely remitted to the applicable Taxing Authority and, if so properly withheld and remitted, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLER

Seller hereby represents and warrants to Buyer, as of the date of this Agreement and as of the Closing Date (except for representations and warranties that are made as of a specified date, which such representations and warranties are made as of such date), as follows:

Section 3.1           Organization and Qualification.

(a)          Seller is a corporation duly organized, validly existing and in good standing under the Laws of Canada and has the corporate power and authority to own or lease its properties and to conduct its business as it is now being conducted. Seller is duly licensed or qualified to do business and, where applicable, is in good standing in each jurisdiction in which the ownership of its property or the character of its activities is such as to require it to be so licensed or qualified, or in good standing, as applicable, except where the failure to be so licensed or qualified or in good standing would not reasonably be expected to have a material adverse effect on the ability of Seller to enter into and perform its obligations under this Agreement or consummate the transactions contemplated hereby.

(b)         Each member of the Company Group and the Non-Controlled Joint Ventures Group is (i) a corporation, partnership, limited liability company or other business organization, as applicable, duly organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation, formation or organization, as applicable, as set forth on Schedule 3.1(b)(i) of the Disclosure Schedules (which such Disclosure Schedule, for the avoidance of doubt, does not give effect to the ULC Conversions or the Pre-Closing Share Issuance and Acquisition), and has all necessary power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted and (ii) except as set forth on Schedule 3.1(b)(ii) of the Disclosure Schedules, duly qualified as a foreign business entity to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its business makes such qualification necessary, except, with respect to clause (ii), for any such failures that would not have a Material Adverse Effect.

Section 3.2          Authority. Seller has the necessary corporate power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which it will be a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by Seller of this Agreement and each of the Ancillary Agreements to which it will be a party and the consummation by Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action. This Agreement has been, and, upon their execution, each of the Ancillary Agreements to which Seller will be a party will have been, duly executed and delivered by Seller, and assuming due execution and delivery by each of the other parties hereto or thereto, this Agreement constitutes, and, upon their execution each of the Ancillary Agreements to which it will be a party, will constitute, the legal, valid and binding obligation of Seller, enforceable against it in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

Section 3.3          No Conflict; Required Filings and Consents.

(a)         Except as set forth on Schedule 3.3 of the Disclosure Schedules, the execution, delivery and performance by Seller of this Agreement and each of the Ancillary Agreements to which it will be a party and the consummation of the transactions contemplated hereby and thereby do not and will not:

(i)          conflict with or violate the Organizational Documents of Seller, any member of the Company Group or any member of the Non-Controlled Joint Ventures Group;

(ii)         assuming receipt of the Required Regulatory Approvals and expiration of the waiting period under the HSR Act, conflict with or violate any Law of any Governmental Authority applicable to Seller, any member of the Company Group or any member of the Non-Controlled Joint Ventures Group or by which any property or asset of Seller, any member of the Company Group or any member of the Non-Controlled Joint Ventures Group is bound or affected;

(iii)        (A) subject to the [Redacted – Confidential Information], (B) assuming receipt of the Required Regulatory Approvals and (C) assuming Buyer and/or its Affiliates have caused new and/or supplemental credit support to be put in place prior to Closing in a manner that satisfies terms of any agreement governing the Existing Credit Support Obligations and the replacement or supplementing thereof, and the applicable beneficiaries, in full satisfaction of Section 5.11, conflict with, result in any breach of, constitute a default (or an event that, with notice or lapse of time or both, would become a default), give rise to any right of termination, amendment, cancellation or acceleration under, or require any consent of any Person pursuant to, any material Contract; or

(iv)       subject to the [Redacted – Confidential Information], results in the creation of an Encumbrance on (A) any of the Equity Interests in any member of the Company Group or the Non-Controlled Joint Ventures Group or (B) any asset of any member of the Company Group or the Non-Controlled Joint Ventures Group;

except, in the case of clause (ii) or clause (iii), for any such conflicts, violations, breaches, defaults, consents or other occurrences that would not have a Material Adverse Effect or prevent, materially delay or materially impede the performance by Seller of its obligations under this Agreement and each of the Ancillary Agreements to which it will be a party or the consummation of the transactions contemplated hereby and thereby.

(b)        None of Seller, any member of the Company Group or any member of the Non-Controlled Joint Ventures Group is required to file, seek or obtain any notice, authorization, approval, order, permit or consent of or with any Governmental Authority in connection with the execution, delivery and performance by Seller of this Agreement and each of the Ancillary Agreements to which it will be a party or the consummation of the transactions contemplated hereby and thereby, except (i) for the Required Regulatory Approvals, Required PJM Notice, Required IESO Notice and the Required Regulatory Notice, (ii) for any filings required to be made under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (iii) in connection with the Pre-Closing Reorganization, which, as of the Closing Date, will have been obtained or made, (iv) in connection with the Pre-Closing Share Issuance and Acquisition and the ULC Conversions, including any Name Change Notices required in connection therewith or (v) where failure to obtain such consent, approval, authorization or action, or to make such filing or notification, would not be material to the Company Group and the Non-Controlled Joint Ventures Group, taken as a whole and would not prevent, materially delay or materially impede the performance by Seller of its obligations under this Agreement and each of the Ancillary Agreements to which it will be a party or the consummation of the transactions contemplated hereby and thereby.

Section 3.4           Capitalization.

(a)         Schedule 3.4(a)(i) of the Disclosure Schedules sets forth, assuming for purposes of such Disclosure Schedule that the Pre-Closing Reorganization has been consummated, (i) a true and correct list of Equity Interests of each member of the Company Group and the Non-Controlled Joint Ventures Group, (ii) the beneficial and record owners of each such Equity Interest, (iii) the form of organization or incorporation of each member of the Company Group and the Non-Controlled Joint Ventures Group, and (iv) the jurisdiction of formation of each member of the Company Group and the Non-Controlled Joint Ventures Group. All of the issued and outstanding Equity Interests in each member of the Company Group and the Non-Controlled Joint Ventures Group are duly authorized, validly issued, fully paid and non-assessable. There are no outstanding obligations, options, warrants, convertible securities, rights of first refusal or first offer, preemptive rights, profit interests or other rights, agreements, arrangements or commitments of any kind relating to the Equity Interests in any member of the Company Group or the Non-Controlled Joint Ventures Group or obligating any Person to issue or sell any Equity Interests of, or any other interest in, any member of the Company Group and the Non-Controlled Joint Ventures Group that would be implicated by the transactions contemplated by this Agreement (other than as provided in Schedule 3.4(a)(ii) or Schedule 3.4(b) of the Disclosure Schedules). There are no outstanding contractual obligations of any member of the Company Group or the Non-Controlled Joint Ventures Group to repurchase, redeem or otherwise acquire any Equity Interests in any Person. Except as provided in the Organizational Documents of a member of the Company Group or the Non-Controlled Joint Ventures Group that have been made available to Buyer, there is no voting trust, proxy or other Contract with respect to the voting or transfer of the Equity Interests in any member of the Company Group or the Non-Controlled Joint Ventures Group.

(b)         Assuming the consummation of the Pre-Closing Reorganization, except (i) as disclosed in Schedule 3.4(a) of the Disclosure Schedules with respect to the ownership of the members of the Company Group and the Non-Controlled Joint Ventures Group and (ii) as set forth in the Organizational Documents of the Company Group or the Non-Controlled Joint Ventures Group made available to Buyer, no member of the Company Group or the Non-Controlled Joint Ventures Group directly or indirectly owns any Equity Interest, partnership, membership or similar interest in, or any interest convertible into, exercisable for the purchase of or exchangeable for any such Equity Interest, partnership, membership or similar interest in any Person other than another member of the Company Group or the Non-Controlled Joint Ventures Group.

Section 3.5           Purchased Interests.

(a)          Other than Seller with respect to the Purchased Interests (which is addressed in Section 3.5(b)), each Person indicated on Schedule 3.4(a)(i) of the Disclosure Schedules as owning Equity Interests in a member of the Company Group or Non-Controlled Joint Ventures Group after giving effect to the Pre-Closing Reorganization will own such Equity Interests beneficially and of record as of Closing, will have good and valid title to such Equity Interests as of Closing and will own such Equity Interests free and clear of all Encumbrances (other than restrictions on transfer that may arise under applicable securities Laws) as of Closing other than as indicated on Schedule 3.5(a) of the Disclosure Schedules.

(b)          Seller is the registered and beneficial owner of the Purchased Interests, free and clear of any Encumbrance (other than restrictions on transfer that may arise under applicable securities Laws). Seller has the right, authority and power to sell, assign and transfer the Purchased Interests to Buyer. Upon delivery to Buyer of the assignment of the Purchased Interests on the Closing Date and Buyer’s payment of the Estimated Purchase Price, Buyer shall acquire good, valid and marketable title to the Purchased Interests, free and clear of any Encumbrance other than Encumbrances created by Buyer and restrictions on transfer that may arise under applicable securities Laws.  There are no Equity Interests in the Company other than the Purchased Interests.

Section 3.6           Business Financial Statements.

(a)        Copies of the combined balance sheet of the Consolidated Group as at December 31, 2023 (the “Balance Sheet”), December 31, 2022 and December 31, 2021, and the related combined statements of income of the Consolidated Group, together with all related notes and schedules thereto (collectively referred to as the “Business Financial Statements”), are attached hereto as Schedule 3.6(a) of the Disclosure Schedules. The Business Financial Statements have been derived from the books and records of the Company and have been prepared in accordance with GAAP consistently applied (except as may be noted therein) and fairly present in all material respects (A) the financial condition, assets and liabilities of the Consolidated Group as of the dates therein specified and (B) the results of operations of the Consolidated Group for the periods indicated therein; provided, that the Business Financial Statements and the foregoing representations and warranties are qualified by the facts that the Consolidated Group has not operated as a separate standalone entity and has received certain allocated charges and credits which do not necessarily reflect amounts that would have resulted from arm’s-length transactions or that the Consolidated Group would incur on a standalone basis.  The revenues and expenses related to the Operating Projects are reflected in all material respects in the Business Financial Statements.

(b)         Except as set forth on Schedule 3.6(b) of the Disclosure Schedules, there are no material Liabilities, whether accrued or fixed, absolute or contingent, or matured or unmatured, of the Consolidated Group of a nature required to be reflected on a balance sheet prepared in accordance with GAAP, other than any such debts, liabilities or obligations (i) reflected or reserved against on the Business Financial Statements or the notes thereto or (ii) incurred since the date of the Balance Sheet in the ordinary course of business (none of which is a Liability for breach of Contract, tort, infringement, violation of Law, or that relates to any Action).

(c)         Copies of the balance sheet of Red Lily Wind Energy Partnership, a Saskatchewan general partnership (“RLWEP”) as at December 31, 2023 (the “RLWEP Balance Sheet”), and the related statements of income and cash flows of RLWEP, together with all related notes and schedules thereto (collectively referred to as the “RLWEP Financial Statements”), are attached hereto as Schedule 3.6(c)(i) of the Disclosure Schedules. The RLWEP Financial Statements have been derived from the books and records of RLWEP and have been prepared in accordance with GAAP consistently applied (except as may be noted therein) and fairly present in all material respects (A) the financial condition, assets, liabilities and equity of RLWEP as of the dates therein specified and (B) the results of operations and cash flows of RLWEP for the periods indicated therein.  Except as set forth on Schedule 3.6(c)(ii) of the Disclosure Schedules, there are no material Liabilities, whether accrued or fixed, absolute or contingent, or matured or unmatured, of RLWEP of a nature required to be reflected on a balance sheet prepared in accordance with GAAP, other than any such debts, liabilities or obligations (i) reflected or reserved against on the RLWEP Financial Statements or the notes thereto or (ii) incurred since the date of the RLWEP Balance Sheet in the ordinary course of business (none of which is a Liability for breach of Contract, tort, infringement, violation of Law, or that relates to any Action).

(d)         Copies of the balance sheet of Éoliennes Belle-Rivière Inc., a Quebec corporation (“EBR”) as at December, 2023 (the “EBR Balance Sheet”), and the related statements of income and cash flows of EBR, together with all related notes and schedules thereto (collectively referred to as the “EBR Financial Statements”), are attached hereto as Schedule 3.6(d)(i) of the Disclosure Schedules. The EBR Financial Statements have been derived from the books and records of EBR and have been prepared in accordance with GAAP consistently applied (except as may be noted therein) and fairly present in all material respects (A) the financial condition, assets, liabilities and equity of EBR as of the dates therein specified and (B) the results of operations and cash flows of EBR for the periods indicated therein.  Except as set forth on Schedule 3.6(d)(ii) of the Disclosure Schedules, there are no material Liabilities, whether accrued or fixed, absolute or contingent, or matured or unmatured, of EBR of a nature required to be reflected on a balance sheet prepared in accordance with GAAP, other than any such debts, liabilities or obligations (i) reflected or reserved against on the EBR Financial Statements or the notes thereto or (ii) incurred since the date of the EBR Balance Sheet in the ordinary course of business (none of which is a Liability for breach of Contract, tort, infringement, violation of Law, or that relates to any Action).

(e)         Copies of the balance sheet of Permian Renewables Holdco, LLC, a Delaware limited liability company (“PRH”) as at December 31, 2023 (the “PRH Balance Sheet”), and the related statements of income and cash flows of PRH, together with all related notes and schedules thereto (collectively referred to as the “PRH Financial Statements”), are attached hereto as Schedule 3.6(e)(i) of the Disclosure Schedules. The PRH Financial Statements have been derived from the books and records of PRH and have been prepared in accordance with GAAP consistently applied (except as may be noted therein) and fairly present in all material respects (A) the financial condition, assets, liabilities and equity of PRH as of the dates therein specified and (B) the results of operations and cash flows of PRH for the periods indicated therein.  Except as set forth on Schedule 3.6(e)(ii) of the Disclosure Schedules, there are no material Liabilities, whether accrued or fixed, absolute or contingent, or matured or unmatured, of PRH of a nature required to be reflected on a balance sheet prepared in accordance with GAAP, other than any such debts, liabilities or obligations (i) reflected or reserved against on the PRH Financial Statements or the notes thereto or (ii) incurred since the date of the PRH Balance Sheet in the ordinary course of business (none of which is a Liability for breach of Contract, tort, infringement, violation of Law, or that relates to any Action).

(f)        Copies of the balance sheet of Algonquin Power (Blue Hill Holdings) Inc., an Ontario corporation (“APBHH”) as at December 31, 2023 (the “APBHH Balance Sheet”), and the related statements of income and cash flows of APBHH, together with all related notes and schedules thereto (collectively referred to as the “APBHH Financial Statements”), are attached hereto as Schedule 3.6(f)(i) of the Disclosure Schedules. The APBHH Financial Statements have been derived from the books and records of APBHH and have been prepared in accordance with GAAP consistently applied (except as may be noted therein) and fairly present in all material respects (A) the financial condition, assets, liabilities and equity of APBHH as of the dates therein specified and (B) the results of operations and cash flows of APBHH for the periods indicated therein.  Except as set forth on Schedule 3.6(f)(ii) of the Disclosure Schedules, there are no material Liabilities, whether accrued or fixed, absolute or contingent, or matured or unmatured, of APBHH of a nature required to be reflected on a balance sheet prepared in accordance with GAAP, other than any such debts, liabilities or obligations (i) reflected or reserved against on the APBHH Financial Statements or the notes thereto or (ii) incurred since the date of the APBHH Balance Sheet in the ordinary course of business (none of which is a Liability for breach of Contract, tort, infringement, violation of Law, or that relates to any Action).

(g)         Copies of the balance sheet of VWH as at December 31, 2023 (the “VWH Balance Sheet”), and the related statements of income and cash flows of VWH, together with all related notes and schedules thereto (collectively referred to as the “VWH Financial Statements”), are attached hereto as Schedule 3.6(g)(i) of the Disclosure Schedules. The VWH Financial Statements have been derived from the books and records of VWH and have been prepared in accordance with GAAP consistently applied (except as may be noted therein) and fairly present in all material respects (A) the financial condition, assets, liabilities and equity of VWH as of the dates therein specified and (B) the results of operations and cash flows of VWH for the periods indicated therein.  Except as set forth on Schedule 3.6(g)(ii) of the Disclosure Schedules, there are no material Liabilities, whether accrued or fixed, absolute or contingent, or matured or unmatured, of VWH of a nature required to be reflected on a balance sheet prepared in accordance with GAAP, other than any such debts, liabilities or obligations (i) reflected or reserved against on the VWH Financial Statements or the notes thereto or (ii) incurred since the date of the VWH Balance Sheet in the ordinary course of business (none of which is a Liability for breach of Contract, tort, infringement, violation of Law, or that relates to any Action).

(h)          After giving effect to the Pre-Closing Reorganization and the Closing, none of the members of the Company Group or the Non-Controlled Joint Ventures Group shall have any Liabilities associated with the steps undertaken to complete the Pre-Closing Reorganization or the completion thereof.

(i)         As of the date hereof, the aggregate principal amount of indebtedness for borrowed money (other than Specified Funded Indebtedness) of members of the Company Group and the Non-Controlled Joint Ventures Group does not exceed $80,000,000 (after giving effect to (x) the ownership percentages of non-wholly-owned Subsidiaries and (y) any applicable conversions of Canadian Dollars to U.S. Dollars pursuant to the Conversion Rate as of August 8, 2024).

(j)          As of the Closing Date, the statement of cash flows of the Consolidated Group as at December 31, 2023, December 31, 2022 and December 31, 2021, together with all related notes and schedules thereto (collectively referred to as the “Business Cash Flow Statements” delivered to Buyer pursuant to Section 5.38 have been derived from the books and records of the Company and have been prepared in accordance with GAAP consistently applied (except as may be noted therein) and fairly present in all material respects (A) the financial condition, assets and liabilities of the Consolidated Group as of the dates therein specified and (B) the results of operations of the Consolidated Group for the periods indicated therein; provided, that the Business Financial Statements and the foregoing representations and warranties are qualified by the facts that the Consolidated Group has not operated as a separate standalone entity and has received certain allocated charges and credits which do not necessarily reflect amounts that would have resulted from arm’s-length transactions or that the Consolidated Group would incur on a standalone basis.

Section 3.7           Absence of Certain Changes or Events.

(a)         Since the date of the Balance Sheet, (i) the business of the Company Group and the Non-Controlled Joint Ventures Group has been conducted in the ordinary course of business in all material respects and (ii) none of Seller or any member of the Company Group (or, to the extent that Seller could prevent such action from having been taken, any member of the Non-Controlled Joint Ventures Group) has taken any action (or omitted to take an action) that, if taken (or omitted to be taken) after the date of this Agreement without Buyer’s consent, would constitute a breach of the covenants set forth in Section 5.1.

(b)         Since the date of the Balance Sheet, there has not occurred any Material Adverse Effect.

Section 3.8          Compliance with Law; Permits.

(a)         Except as set forth on Schedule 3.8(a) of the Disclosure Schedules, each member of the Company Group and, to the Knowledge of Seller, the Non-Controlled Joint Ventures Group is, and has been for the past 36 months, in compliance with all Laws and Permits applicable to it, except for violations that would not reasonably be expected to be material to the Company Group and the Non-Controlled Joint Ventures Group, taken as a whole.

(b)         Except as set forth on Schedule 3.8(b) of the Disclosure Schedules, each member of the Company Group and the Non-Controlled Joint Ventures Group is in possession of all permits, licenses, franchises, approvals, certificates, certificates of authorization, decrees, consents, waivers, concessions, exemptions, orders, registrations, notices or other authorizations of any Governmental Authority necessary for each member of the Company Group and, to the Knowledge of Seller, the Non-Controlled Joint Ventures Group with respect to the Construction Projects and the Operating Projects owned, leased or operated by such Persons in light of the current stage of construction or operation of such Projects (the “Permits”) and there is no fact or circumstance that is reasonably likely to prevent any such Project from obtaining any Permit necessary for its construction or operation, except where the failure to have, or the suspension or cancelation of, any of the Permits would not reasonably be expected to be material to the Company Group and the Non-Controlled Joint Ventures Group, taken as a whole.

(c)         No member of the Company Group nor the Non-Controlled Joint Ventures Group, nor any director or officer nor, to the Knowledge of Seller, any other employee, agent or other Person acting on behalf of any member of the Company Group or the Non-Controlled Joint Ventures Group, has, in the past 36 months, directly or indirectly, violated any provision of any applicable federal, state, provincial or foreign anti-bribery or anti-corruption Laws including, but not limited to the U.S. Foreign Corrupt Practices Act of 1977, Corruption of Foreign Public Officials Act (Canada) and Criminal Code (Canada) as amended and other (collectively, “Anti-Corruption Laws”) or Anti-Money Laundering Laws in any material respect, including by: (i) the use of any funds of the Company Group or the Non-Controlled Joint Ventures Group for unlawful contributions, gifts, entertainment or other expenses; (ii) providing, promising to provide, or agreeing with any other person to provide or promise to provide, an unlawful benefit of any kind (including a payment) to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from funds of the Company Group or the Non-Controlled Joint Ventures Group; or (iii) making or receiving any unlawful bribe, rebate, payoff, influence payment, gratuity, kickback or other similar unlawful payment.

Section 3.9         Litigation; Orders. Except as set forth on Schedule 3.9 of the Disclosure Schedules, there is no Action by or against Seller or any member of the Company Group pending or, to the Knowledge of Seller, threatened or by or against Seller or any member of the Non-Controlled Joint Ventures Group or threatened against any member of the Non-Controlled Joint Ventures Group that would, if determined adversely to Seller or such member the Company Group or the Non-Controlled Joint Ventures Group, reasonably be expected to (i) have a material adverse effect on the ability of Seller to enter into and perform its obligations under this Agreement or consummate the transactions contemplated hereby or (ii) be material to the Company Group and the Non-Controlled Joint Ventures Group, taken as a whole. Seller, the Company Group and, to the Knowledge of Seller, the Non-Controlled Joint Ventures Group are not subject to any Order of any Governmental Authority that would reasonably be expected to (x) have a material adverse effect on the ability of Seller to enter into and perform its obligations under this Agreement or consummate the transactions contemplated hereby or (y) be material to the Company Group and the Non-Controlled Joint Ventures Group, taken as a whole.

Section 3.10         Employee Benefit Plans.

(a)          For purposes hereof “Employee Plans” means, all “employee benefit plans” (as such term is defined in Section 3(3) of ERISA), whether or not subject to ERISA, and all employment, termination, severance, retention, change in control, bonus, equity option, equity purchase, equity-based, phantom equity, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, vacation, paid time off, welfare benefit insurance coverage, or other contracts, letters, agreements, benefit plans, programs or arrangements that are maintained, contributed to, or required to be contributed to, or sponsored by the Company Group or the Non-Controlled Joint Ventures Group for the benefit of any current or former employee, officer, director or individual service provider of the Company Group or the Non-Controlled Joint Ventures Group or pursuant to which the Company Group or the Non-Controlled Joint Ventures Group has any Liability in respect of the foregoing, or under which Seller or any Affiliate of Seller other than a member of the Company Group has any Liability in respect of any Subject Employees, other than plans established pursuant to statute and administered by a Governmental Authority.  Schedule 3.10(a) of the Disclosure Schedules sets forth, as of the date hereof, a true, complete and accurate list of all material Employee Plans in force and effect.

(b)         With respect to each material Employee Plan in effect on the date of this Agreement, Seller has made available to Buyer a complete and accurate copy of (i) the current plan document (and all amendments thereto) for each such Employee Plan; (ii) the most recent annual report (Form 5500) filed with the IRS, and any other annual information return filed with a Governmental Authority, if any; (iii) the most recent trust agreement, group annuity contract and summary plan description, if any, relating to such Employee Plan; and (iv) the most recent favorable determination or opinion letter, if any, from the IRS with respect to each Employee Plan intended to qualify under Section 401(a) of the Code.

(c)        Each Employee Plan has been and is being administered in all material respects in accordance with ERISA, the Code and all other applicable laws and the regulations thereunder and in accordance with its terms. With respect to the Employee Plans, there are no benefit obligations for which contributions have not been made or properly accrued to the extent required by GAAP, except for failures to make such contributions or accruals for contributions as are not, individually or in the aggregate, reasonably likely to be material. There are no Actions pending, or to the Knowledge of Seller, threatened, with respect to any Employee Plan (other than routine claims for benefits in the ordinary course and appeals thereof) that would result in material Liability to any member of the Company Group or to the Knowledge of Seller, the Non-Controlled Joint Ventures Group.

(d)         No member of the Company Group or the Non-Controlled Joint Ventures Group has, and could reasonably be expected to have, any liability, including on account of an ERISA Affiliate, with respect to any “multiemployer plan” as defined in Section 3(37) of ERISA or any “multi-employer plan” as such term is defined in subsection 8500(1) of the Tax Act.

(e)         Each Employee Plan that is intended to be qualified as Tax-preferred or Tax-exempt (including under Section 401(a) of the Code) is so qualified and has received or is the subject of a determination or opinion letter from the IRS, if applicable, that it is so qualified and each related trust that is intended to be exempt from federal income taxation under Section 501(a) of the Code has received a determination or opinion letter from the IRS that it is so exempt, and, to the Knowledge of Seller, no fact or event has occurred since the date of such letter or letters from the IRS that would reasonably be expected to adversely affect the qualified status of any such Employee Plan or the exempt status of any such trust.

(f)          None of the Employee Plans is a “single-employer plan” (within the meaning of Section 4001(a)(15) of ERISA) subject to Title IV of ERISA for which either the Company Group or the Non-Controlled Joint Ventures Group would reasonably be expected to incur liability under Section 4063 or 4064 of ERISA or a “registered pension plan” as that term is defined in subsection 248(1) of the Tax Act that contains a “defined benefit provision” as that term is defined in subsection 147.1(1) of the Tax Act. No member of the Company Group or the Non-Controlled Joint Ventures Group maintains, contributes to or is required to contribute to, or has any liability with respect to, any (i) “employee pension benefit plan” (within the meaning of Section 3(2) of ERISA) that is subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, (ii) any “multiple employer welfare arrangement,” as defined in Section 3(40) of ERISA, (iii) any “multiple employer plan,” as defined in Section 413(c) of the Code, (iv) a “retirement compensation arrangement” as such term is defined in subsection 248(1) of the Tax Act, (v) a “salary deferral arrangement” as such term is defined in subsection 248(1) of the Tax Act, or (vi) an “employee life and health trust” as such term is defined in subsection 248(1) of the Tax Act.

(g)         Neither the execution and delivery of this Agreement, the Ancillary Agreements nor the consummation of any of the transactions contemplated by the foregoing agreements will (either alone or in conjunction with any other event) (1) result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any payment or benefit to any employee, officer, director, or individual service provider of any member of the Company Group or, to the Knowledge of Seller, the Non-Controlled Joint Ventures Group, (2) result in any limitation on the right of any member of the Company Group to amend, merge, terminate or receive a reversion of assets from any Employee Plan or related trust, or (3) result in the receipt or retention by any person who is a “disqualified individual” (within the meaning of Section 280G of the Code) of any payment or benefit that is a “parachute payment” (within the meaning of Section 280G of the Code). None of the Employee Plans provides for or promises retiree medical, disability or life insurance benefits to any current or former employee, officer, director or individual service provider of the Company Group or, to the Knowledge of Seller, the Non-Controlled Joint Ventures Group.

(h)         Each Employee Plan constitutes a “nonqualified deferred compensation plan” subject to Section 409A of the Code is in documentary and operational compliance, in all material respects, with Section 409A of the Code and the regulations thereunder.  No member of the Company Group or, to the Knowledge of Seller, the Non-Controlled Joint Ventures Group has any obligation to gross up or otherwise reimburse any current or former employee, officer, director or individual service provider of the Company Group or the Non-Controlled Joint Ventures Group for any Tax incurred by such Person pursuant to Section 409A, 4999, or 105(h) of the Code.

(i)          Each Employee Plan subject to the laws and regulations of any jurisdiction outside of the United States (i) has been established and maintained in all material respects in accordance with all applicable statutes, laws, ordinances, regulations, and rules; (ii) if the Employee Plan is intended to qualify for special tax treatment, such Employee Plan meets in all material respects, the requirements for such treatment; and (iii) if the Employee Plan is intended to be funded or book-reserved, such Employee Plan is funded or book reserved, as appropriate, based upon reasonable actuarial assumptions and applicable Laws.

Section 3.11         Labor and Employment Matters

(a)         No member of the Company Group nor, to the Knowledge of Seller, the Non-Controlled Joint Ventures Group is a party to any labor or collective bargaining contract, and, to the Knowledge of Seller, no union organizing efforts covering any Subject Employees are now being conducted or have been conducted in the past 36 months. There is no material (a) labor dispute, strike, controversy, slowdown, work stoppage or lockout involving any Subject Employees or otherwise pending or, to the Knowledge of Seller, threatened against or affecting any member of the Company Group or the Non-Controlled Joint Ventures Group or (b) unfair labor practice or labor charge or complaint involving any Subject Employees or pending or, to the Knowledge of Seller, threatened with respect to the Company Group or the Non-Controlled Joint Ventures Group before the National Labor Relations Board, the Equal Employment Opportunity Commission or any other similar Governmental Authority. Each employer of Subject Employees, member of the Company Group and, to the Knowledge of Seller, the Non-Controlled Joint Ventures Group are, and have been for the past 36 months, in material compliance with all applicable Laws relating to labor and employment, including as relating to employment standards, accessibility, labor relations, human rights, employment equity, occupational health and safety, wages, hours, plant closings, collective bargaining, unemployment compensation, pay equity, harassment, retaliation, equal employment opportunity, discrimination, immigration, workforce classification, safety and health.

(b)        Seller has made available to Buyer a true, complete and accurate list of each employee of the Company Group, Seller or an Affiliate of Seller that performs services for the Company Group and, to the Knowledge of Seller, the Non-Controlled Joint Ventures Group (such employees, “Subject Employees”) as of a date within the 15-day period preceding the date of this Agreement, including name, employee number, job title, start date, status as exempt or non-exempt, full-time or part-time status, leave status (including date of leave and expected return date (if known)), employment location, employing entity (if not the Company) and current base annual salary or hourly rate of pay and target bonus opportunity or other incentive compensation, in each case, as applicable.  The most recent such list has been delivered to Buyer on or prior to the date hereof.

	By:	/s/ Jennifer Tindale
	Name:	Jennifer Tindale
	Title:	Chief Legal Officer