Purchase and Sale Agreement by and between Pattern Energy Group Inc. and Green Power Investment Corporation dated as of February 26, 2018 related to interests in GK Green Power Kanagi, GK Green Power Otsuki and Otsuki Wind Power Corporation

Exhibit 10.4 

EXECUTION VERSION

PURCHASE and Sale AGREEMENT

by and between

PATTERN ENERGY GROUP INC.,

Purchaser

and

GREEN POWER INVESTMENT CORPORATION,

Seller

Dated as of

February 26, 2018

Interests in

GK Green Power Kanagi
GK Green Power Otsuki
Otsuki Wind Power Corporation

LIST OF EXHIBITS AND APPENDICES

PURCHASE and Sale AGREEMENT

THIS PURCHASE and Sale AGREEMENT (this “Agreement”), dated as of February 26, 2018, is made by and between Pattern Energy Group Inc., a Delaware corporation (“Purchaser”), and Green Power Investment Corporation, a Japanese corporation (the “Seller”). Capitalized terms used in this Agreement shall have the respective meanings specified in Exhibit A attached hereto.

RECITALS

WHEREAS, Seller directly owns (i) 7.66% of the equity interests in GK Green Power Kanagi (the “Kanagi Project Company”) which owns and operates the Kanagi Project, (ii) 4.99% of the equity interests in GK Green Power Otsuki (the “Ohorayama Project Company”) which owns and operates the Ohorayama Project and (iii) 100% of the equity interests in Otsuki Wind Power Corporation (the “Otsuki Project Company”) which owns and operates the Otsuki Project, each as more fully described on Part I of Section B of the Appendix to this Agreement relating to the applicable Project; and

WHEREAS, Seller desires to sell to Purchaser or a Subsidiary thereof (a “Subsidiary Purchaser”), and Purchaser desires to purchase (or cause such Subsidiary Purchaser to purchase) from Seller, the Acquired Interests defined and described in Part I of Section B of the Appendix relating to the applicable Project (the “Acquired Interests”) on the terms and subject to the conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual terms, conditions and agreements set forth herein, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereby agree as follows:

ARTICLE 1
PURCHASE AND SALE OF THE ACQUIRED INTERESTS

1.1       Agreement to Sell and Purchase. Subject to the satisfaction or waiver (by the party for whose benefit such condition exists) of the conditions set forth in Article ‎5 and the other terms and conditions of this Agreement, at the Closing (a) Seller shall sell, assign, transfer and convey the Acquired Interests for each Project to Purchaser (or the applicable Subsidiary Purchaser), and (b) the Purchaser shall (or shall cause the applicable Subsidiary Purchaser to) purchase the Acquired Interests for each Project from Seller, for an aggregate purchase price for all Acquired Interests of $24,066,000, with the purchase price for each such Acquired Interest as set forth in Part I of Section A of the applicable Appendix to this Agreement (subject to the adjustments set forth therein) (each, a “Purchase Price”). The purchase and sale of the Acquired Interests relating to a particular Project and Project Company (each such purchase and sale, an “Acquisition”) shall occur on the same date and at the same time as the Closing with respect to all other Acquisitions.

1.2       Signing Date Deliverables. On or prior to the date of this Agreement, Seller has delivered or is delivering to Purchaser a Financial Model for each Project as of the date hereof. On the date of this Agreement each of Seller and Purchaser shall deliver to the other party the

other deliverables with respect to each Acquisition set forth in Part II of Section A of the Appendix relating to such Acquisition.

1.3       Purchase Price. The purchase price payable by the Purchaser (or the applicable Subsidiary Purchaser) to Seller at the Closing of an Acquisition shall be the Purchase Price set forth in Part I of Section A of the Appendix relating to such Acquisition. Such Purchase Price shall be subject to adjustment by the corresponding Purchase Price Adjustment (if any) and/or the Post-Closing Adjustment (if any) set forth in Part I of Section A of the Appendix relating to such Acquisition. All payments of such Purchase Price, any such Purchase Price Adjustment and/or any Post-Closing Adjustment shall be paid by wire transfer of same day funds in the applicable currency to the accounts set forth in Part I of Section A of the Appendix relating to such Acquisition.

1.4       The Closing. The closing of each Acquisition (each, a “Closing”) will take place on the dates and at the locations specified in Part III of Section A of the Appendix relating to such Acquisition, or such other time and place as the parties hereto shall mutually agree (including Closing by facsimile or “PDF” electronic mail transmission exchange of executed documents or signature pages followed by the exchange of originals as soon thereafter as practicable), and will be effective as of 12:01 a.m. Eastern Time on the day such Closing occurs.

1.5       Conduct of Closing.

(a)       At or prior to each Closing for an Acquisition, Seller shall deliver, or cause to be delivered, to the Purchaser:

Adjustment, if any, for such Acquisition. The Purchaser shall have a period of two (2) Business Days to review and confirm the updates to such Financial Model and the calculation of such Purchase Price Adjustment. If the Purchaser disapproves of such updates to such Financial Model and/or the calculation of such Purchase Price Adjustment, the parties shall have a further period of two (2) Business Days to negotiate the same. In the event that the parties cannot agree on such updates to such Financial Model and/or calculation of such Purchase Price Adjustment (acting reasonably) following such two (2) Business Day period, (x) the parties shall resolve any dispute in accordance with the procedures set forth in Section ‎7.4 (which, for the avoidance of doubt, shall not delay the Closing Date) and (y) the amount in dispute shall be retained by the Purchaser until the dispute is resolved as aforesaid. Subject to the foregoing, with respect to each Closing, Seller shall deliver to Purchaser a signed direction containing the final determination of the Purchase Price for such Acquisition (less any disputed amount) for the Purchaser not less than two (2) Business Days prior to the Closing Date applicable to such Closing; and

(b)       With respect to each Acquisition, at or prior to the Closing for such Acquisition, the Purchaser shall deliver to Seller:

1.6       Withholding. Notwithstanding any provision contained herein to the contrary, Purchaser (or the applicable Subsidiary Purchaser) shall be entitled to deduct and withhold from the consideration or any payment otherwise payable to any Person pursuant to this Agreement such amounts as it is required to deduct and withhold under any provision of applicable Laws. If Purchaser (or the applicable Subsidiary Purchaser) so withholds, the amounts withheld shall be treated for all purposes of this Agreement as having been paid to the Person in respect of whom Purchaser made such deduction or withholding.

ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER

Except as set forth in, or qualified by any matter set forth in, the Schedules attached hereto, with respect to each Acquisition, Seller hereby represents and warrants to Purchaser as set forth in this Article ‎2 as of (a) the date hereof and (b) the Closing Date, in each case, unless otherwise specified in the representations and warranties below, in which case the representation and warranty is made as of such date. Whether or not a particular Section of this Article ‎2 refers to a specific, numbered Schedule for an Acquisition, such Section shall, to the extent applicable, be subject to the exceptions, qualifications, and other matters set forth in the Schedules for such Acquisition to the extent that the relevance of such exceptions, qualifications or other matters is reasonably apparent on the face thereof. Seller is making the representations and warranties set forth in this Article 2 solely on an Acquisition by Acquisition basis, and the representations and warranties with respect to any one Acquisition shall not apply to any other Acquisition.

2.1       Organization and Status. Seller (a) is duly formed and validly existing under the laws of the jurisdiction of its formation as set forth in the preamble to this Agreement or Part I of Section B of the applicable Appendix, (b) is duly qualified, authorized to do business and in good standing (to the extent applicable) in each other jurisdiction where the character of its properties or the nature of its activities makes such qualification necessary, and (c) has all requisite power and authority to own or hold under lease the property it purports to own or hold under lease and to carry on its business as now being conducted. Seller has made available to Purchaser complete and correct copies of the Organization Documents for Seller, the Project Company and each of the Project Company’s Subsidiaries, in each case for such Acquisition. Part I of Section B of the Appendix for such Acquisition sets forth a list of the Project Company and its Subsidiaries, in each case, for such Acquisition, and for each such company: (a) its name, (b) the number and type (as applicable) of its outstanding equity interests and a list of the holders thereof and (c) its jurisdiction of organization. The Project Company and each of its Subsidiaries, in each case for such Acquisition, is a legal entity duly formed and validly existing under the Laws of the jurisdiction of its formation and has all requisite organizational power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, and is duly qualified, registered or licensed to do business as a foreign entity and is in good standing (to the extent applicable) in each jurisdiction in which the property owned, leased or operated by such Person or the nature of the business conducted by such Person makes such qualification necessary, except where the failure to be so duly qualified, registered or licensed and in good standing (to the extent applicable) would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

2.2       Power; Authority; Enforceability. Seller has the legal capacity and power to enter into, deliver and perform its obligations under this Agreement and has been duly authorized, in accordance with its Organization Documents, to enter into, deliver and perform its obligations under this Agreement with respect to such Acquisition. This Agreement has been duly executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller, enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, moratorium, reorganization and similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity regardless of whether enforceability is considered in a proceeding in equity or at law.

2.3       No Violation. Except as set forth on Schedule 2.3, the execution, delivery and performance by Seller of its obligations under this Agreement with respect to such Acquisition, in each case including without limitation the sale of the Acquired Interests for such Acquisition to the Purchaser (or the applicable Subsidiary Purchaser), do not, and will not, (a) violate any Governmental Rule to which Seller or the Project Company for such Acquisition or any of its Subsidiaries is subject or the Organization Documents of any such Person, (b) result in the creation or imposition of any Lien (other than a Permitted Lien) upon such Acquired Interests for such Acquisition or with respect to the Project Company for such Acquisition or any of its Subsidiaries, (c) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel or require any notice under any agreement, contract, lease, license, instrument or other arrangement to which Seller or the Project Company for such Acquisition or any of its Subsidiaries is a party or by which any such Person is bound, (d) other than as set forth in Part VII of Section A of the Appendix relating to such Acquisition, conflict with, result in a breach of, constitute a default under, result in the acceleration of, or create in any party the right to accelerate, terminate, modify or cancel or require any Consent under any Material Contract relating to the Project Company or the Project for such Acquisition or (e) other than as set forth in Part VII of Section A of the Appendix relating to such Acquisition, require any notice under any Material Contract relating to the Project Company or the Project Acquisition, except in the case of this clause (e), as would not reasonably be expected to be material in the context of the Project that is the subject of such Acquisition or otherwise prevent or materially impair or materially delay the consummation of such Acquisition.

2.4       No Litigation.

(a)       None of Seller, the Project Company for such Acquisition or any of such Project Company’s Subsidiaries is a party to or has received written notice of any pending or, to the Knowledge of Seller, threatened litigation, action, suit, proceeding or governmental investigation against Seller, such Project Company or such Project Company’s Subsidiaries which would reasonably be expected to be material to the ownership of the Acquired Interests for such Acquisition or which seeks the issuance of an order restraining, enjoining, altering or materially delaying the consummation of the transactions contemplated by this Agreement with respect to such Acquisition.

(b)       Neither the Project Company for such Acquisition nor any of its Subsidiaries is a party to or has received written notice of any pending or, to the Knowledge of Seller, threatened litigation, action, suit, proceeding or governmental investigation which would reasonably be expected to be material to the Project for such Acquisition or which seeks the issuance of an order restraining, enjoining, altering or materially delaying the consummation of the transactions contemplated by this Agreement with respect to such Acquisition.

(c)       There are no material disputes with any counterparty to a Material Contract relating to the Project Company or the Project relating to such Acquisition. Neither the Project Company for such Acquisition nor any of its Subsidiaries has made any material warranty claim under any Material Contract.

2.5       Consents and Approvals. Except as set forth on Part VII of Section A of the Appendix relating to such Acquisition, no Consent of any Governmental Authority is required by or with respect to Seller, the Project Company for such Acquisition or any of such Project Company’s Subsidiaries in connection with the execution and delivery of this Agreement by Seller with respect to such Acquisition, or the consummation by Seller of the transactions contemplated hereby with respect to such Acquisition, except for any Consents relating to such Acquisition which if not obtained or made prior to the Closing of such Acquisition would not reasonably be expected to prevent or impair or delay the consummation of the transactions contemplated by this Agreement with respect to such Acquisition and which can be reasonably expected to be obtained or made in the ordinary course after the Closing of such Acquisition.

2.6       Acquired Interests. Seller owns of record and beneficially one hundred percent (100%) of the Acquired Interests for such Acquisition as set forth in Part I of Section B of the Appendix for such Acquisition. All of the interests described in Part I of Section B of the Appendix for such Acquisition have been duly authorized, validly issued and are fully-paid and non-assessable and, except as set forth on Part I of Section B of such Appendix, there are no outstanding (i) equity interests or voting securities of the Project Company for such Acquisition, (ii) securities of the Project Company for such Acquisition convertible into or exchangeable for any equity interests or voting securities of such Project Company or (iii) options or other rights to acquire from the Project Company for such Acquisition, or other obligation of such Project Company to issue, any equity interests or voting securities or securities convertible into or exchangeable for equity interests or voting securities of such Project Company, or any obligations of such Project Company to repurchase, redeem or otherwise acquire any of the foregoing. The Seller has good and valid title to, and has, or will have, full power and authority to convey, the Acquired Interests for such Acquisition, as of the Closing Date. No Person other than Purchaser has any written or oral agreement or option or any right or privilege, whether by law, pre-emptive or contractual right, capable of becoming an agreement or option for the purchase or acquisition from Seller of any of the Acquired Interests for such Acquisition. On the Closing Date of such Acquisition, Seller will convey to Purchaser (or the applicable Subsidiary Purchaser) good and valid title to the Acquired Interests for such Acquisition free and clear of all Liens other than any obligations imposed under the Organization Documents of the Project Company or restrictions arising under applicable securities laws.

2.7       Solvency. There are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by or, to the Knowledge of Seller, threatened against, Seller or the Project Company for such Acquisition or such Project Company’s Subsidiaries. None of Seller, the Project Company for such Acquisition or Subsidiaries of such Project Comapny (a) has had a receiver, receiver and manager, liquidator, sequestrator, trustee or other officer with similar powers appointed over all or part of its business or its assets, and to the Knowledge of Seller, no application therefor is pending or threatened, (b) is insolvent or presumed to be insolvent under any law or is unable to pay its debts as and when they fall due, (c) has made a general assignment for the benefit of its creditors, or (d) has taken any action to approve any of the foregoing.

2.8       Compliance with Law.

(a)       There has been no actual violation by Seller of or failure by Seller to comply with any Governmental Rule that is applicable to it, or allegation by any Governmental Authority of such a violation, that would reasonably be expected to prevent or materially impair or delay the consummation of the transactions contemplated by this Agreement with respect to such Acquisition.

(b)       To the Knowledge of Seller, there has been no actual violation by the Project Company for such Acquisition or any of its Subsidiaries of or failure by such Project Company or its Subsidiaries to comply with any Governmental Rule that is applicable to it, or allegation by any Governmental Authority of such a violation, that would reasonably be expected to be material and relates to the Project or would otherwise reasonably be expected to prevent or materially impair or delay the consummation of the transactions contemplated by this Agreement with respect to such Acquisition.

2.9       Taxes.

(a)       With respect to the Kanagi Project, the Project Company for such Acquisition has been, at all times since June 24, 2015, a partnership or a disregarded entity for U.S. federal income tax purposes. With respect to the Ohorayama Project, the Project Company for such Acquisition has been, at all times since March 26, 2015, a partnership or a disregarded entity for U.S. federal income tax purposes. With respect to the Otsuki Project, the Project Company for such Acquisition has been, at all times since its formation, a corporation for U.S. federal income tax purposes.

(b)       The Project Company for each Acquisition and its Subsidiaries has been, at all times since its formation, taxable as a corporation for Japanese tax purposes.

(c)       With respect to the HoldCo for each Acquisition and its Subsidiaries, no jurisdiction or authority in or with which such entity does not file Tax Returns has alleged that it is required to file Tax Returns, and there is no claim, audit, action, suit, proceeding or investigation now pending or threatened against or with respect to any such entity.

(d)       The Holdco for each Acquisition and its Subsidiaries has timely filed all Tax Returns that it is required to file, has timely paid or has caused to be timely paid all Taxes it is required to pay to the extent due (other than those Taxes that it is contesting in good faith and by appropriate proceedings, with adequate and segregated reserves established for such Taxes) and, to the extent such Taxes are not due, has established or caused to be established reserves that are adequate for the payment thereof as required by GAAP.

(e)       None of the HoldCo for each Acquisition and its Subsidiaries has been a member of an affiliated, consolidated, combined or unitary group for any Tax purposes other than one of which such HoldCo or its applicable Subsidiary was the common parent, or made any election or participated in any arrangement whereby any Tax liability or any Tax asset of such HoldCo or such HoldCo’s applicable Subsidiary was determined or taken into account for Tax purposes with reference to or in conjunction with any Tax liability or any Tax asset of any other Person.

(f)       The HoldCo for each Acquisition and its Subsidiaries each has withheld from each payment made to any Person, all amounts required by applicable Laws to be withheld, and has remitted such withheld amounts within the prescribed periods to the appropriate Governmental Authorities.

(g)       The HoldCo for each Acquisition and its Subsidiaries each has charged, collected and remitted on a timely basis all Taxes as required under applicable Laws on any sale, supply or delivery whatsoever, made by it.

(h)       The HoldCo for each Acquisition and its Subsidiaries each has maintained and continues to maintain at its place of business all records and books of account required to be maintained under applicable Laws, including Laws relating to sales and use Taxes.

(i)        With respect to the HoldCo for each Acquisition and its Subsidiaries (i) no reassessments of the Taxes of it have been issued and are outstanding, (ii) the Seller has not received any indication from any Governmental Authority that an assessment or reassessment of it is proposed in respect of any Taxes, regardless of its merits, and (iii) it has not executed or filed with any Governmental Authority any agreement or waiver extending the period for assessment, reassessment or collection of any Taxes.

(j)        The HoldCo for each Acquisition and its Subsidiaries each will not be required to include for any Post-Closing Tax Period (i) any adjustment in taxable income pursuant to Section 481 of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Laws) or (ii) taxable income attributable to any prepaid amount received on or prior to the Closing Date or income economically realized in any Pre-Closing Tax Period, including any distributions in a Pre-Closing Tax Period from an entity that is fiscally transparent for Tax purposes and any income that would be includible in a Post-Closing Tax Period as a result of the installment method.

(k)       None of the Project Companies is treated as engaged in a trade or business within the United States for U.S. federal income tax purposes.

2.10     Unregistered Securities. It is not necessary in connection with the sale of the Acquired Interests for such Acquisition, under the circumstances contemplated by this Agreement with respect to such Acquisition, to register such Acquired Interests under the Securities Act of 1933 (the “Securities Act”), or under any other applicable securities laws.

2.11     Broker’s Fees. Seller does not have any liability or obligation for any fees or commissions to any broker, finder or agent with respect to such Acquisition.

2.12     Material Contracts. Parts I, III, IV and V of Section C of the Appendix for such Acquisition, set forth, collectively, a list of all Material Contracts relating to the Project Company or the Project for such Acquisition. At or prior to the date hereof Seller has provided Purchaser with, or access to, copies of all such Material Contracts. To the extent any obligations of or for the benefit of the Project Company for such Acquisition or its Subsidiaries are outstanding under any such Material Contracts as of the Closing Date, each such Material Contract is in full force and effect and constitutes the legal, valid, binding and enforceable obligation of the Project Company for such Acquisition or its applicable Subsidiaries and, to the

Knowledge of Seller, each other party thereto, in accordance with its terms, except as such terms may be limited by (i) applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, whether considered in a proceeding in equity or at law. None of the Project Company for the applicable Acquisition or its Subsidiaries, or to the Knowledge of Seller, any other party thereto (i) is in breach of or default in any material respect under a Material Contract relating to the Project Company or the Project for such Acquisition and, to the Knowledge of Seller, no event has occurred and is continuing which, with notice or the lapse of time or both, would constitute a material breach of or default under any such Material Contract or would give rise to any right of termination, cancellation, acceleration, amendment, suspension or revocation of any such a Material Contract, or (ii) has received any written notice of termination or suspension of any Material Contract relating to the Project Company or the Project for such Acquisition, and to the Knowledge of Seller, no action is being taken by any Person to terminate or suspend any such Material Contract.

2.13     Real Property.

(a)       Part V of Section C of the Appendix for such Acquisition lists all of the real property owned by the Project Company for such Acquisition or its Subsidiaries. To the Knowledge of Seller, no Governmental Authority has commenced the exercise of any eminent domain or similar power with respect to the Project Company Real Property for such Acquisition, and there are no pending or, to the Knowledge of Seller, threatened condemnation or eminent domain proceedings that affect any such Project Company Real Property.

(b)       The Project Company for such Acquisition and/or its Subsidiaries has good and valid title to or, subject to the terms and conditions of the Material Leases for such Acquisition, the right to use all Project Company Real Property for such Acquisition, free and clear of all Liens other than Permitted Liens. With respect to the Project Company Real Property for such Acquisition it leases or on which it was granted servitudes or superficies pursuant to the Material Leases relating to such Acquisition, the Project Company for such Acquisition or its applicable Subsidiary has peaceful and undisturbed nonexclusive possession under all Material Leases relating to such Acquisition, servitudes or superficies under which it is leasing or occupying property in accordance with the terms and conditions of such Material Leases, servitude or superficies and subject to the Permitted Liens. All rents and other payments under the Material Leases relating to such Acquisition have been paid in full to the extent due.

(c)       The Project Company Real Property relating to such Acquisition is sufficient to provide the Project Company for such Acquisition and its Subsidiaries with continuous, uninterrupted and, together with public roads, contiguous access to the Project relating to such Acquisition sufficient for the operation and maintenance of such Project as currently conducted. All utility services necessary for the construction and operation of such Project for its intended purposes are available or are reasonably expected to be so available as and when required upon commercially reasonable terms.

2.14     Permits. Exhibit B-1 of the Appendix for such Acquisition sets forth a list of all material Permits acquired or held by the Project Company for such Acquisition and its Subsidiaries.  The Project Company for such Acquisition and its Subsidiaries hold in full force

and effect all Permits required for the operation, ownership and maintenance of the applicable Project as presently conducted, and, in the case of any Project not yet in operation, holds all Permits needed to complete construction of such Project and reasonably expects to obtain when needed all Permits needed for the operation and maintenance of such Project in due course on commercially reasonable terms and conditions, in each case, other than those Permits required in connection with certain construction and maintenance activities which are ministerial in nature and can reasonably be expected to be obtained in due course on commercially reasonable terms and conditions as and when needed.  None of the Project Company for such Acquisition or any of its Subsidiaries is in material default or material violation, and, to the Knowledge of Seller, no event has occurred and is continuing which, with notice or the lapse of time or both, would constitute a material default or material violation of, or would give rise to any right of termination, cancellation, acceleration, amendment, suspension or revocation under, any of the terms, conditions or provisions of any Permits held by such Project Company or its Subsidiaries.  There are no legal proceedings pending or, to the Knowledge of Seller, threatened in writing, relating to the suspension, revocation or modification of any Permits held by the Project Company for such Acquisition or any of its Subsidiaries.

2.15     Environmental Matters. Except as set forth in Part II of Section C of the Appendix for such Acquisition, (i) the Project Company for such Acquisition and its Subsidiaries, the Project Company Real Property for such Acquisition and the Project related to such Acquisition are in material compliance with all Environmental Laws, (ii) none of the Project Company for such Acquisition or any of its Subsidiaries has caused or contributed to the release of any Hazardous Substances in any material respect, and (iii) none of Seller, the Project Company for such Acquisition or any of their respective Subsidiaries has received written notice from any Governmental Authority of any material Environmental Claim with respect to the Project relating to such Acquisition, or any written notice of any investigation, or any written request for information, in each case, under any Environmental Law relating to such Project Company or the Project. None of Seller, the Project Company for such Acquisition or any of their respective Subsidiaries have given any release or waiver of liability that would waive or impair any material claim based on the presence of Hazardous Substances in, on or under any real property relating to the Project for such Acquisition, against a previous owner of any such real property or against any Person who may be potentially responsible for the presence of Hazardous Substances in, on or under any such real property.

2.16     Insurance. The Insurance Consultant’s Report defined and described on Part II of Section C of the Appendix for such Acquisition sets forth a list of all material insurance maintained by or on behalf the Project Company for such Acquisition or its Subsidiaries or the applicable Project (the “Insurance Policies”). All such Insurance Policies are now in full force and effect. All premiums with respect to such Insurance Policies covering all periods to and including the date hereof have been paid and, with respect to premiums due and payable prior to the Closing applicable to such Project, will be so paid. None of these Insurance Policies have lapsed and, to the Knowledge of Seller, there are no circumstances that have rendered such insurance unenforceable, void or voidable. None of Seller, the Project Company for the applicable Acquisition and the Subsidiaries of such Project Company has received any written notice in the past 12 months from the insurer under any Insurance Policies disclaiming coverage, reserving rights with respect to a particular claim or such Insurance Policy in general or canceling or materially amending any such Insurance Policy. The assets and properties of the

Project Company for the applicable Acquisition and its Subsidiaries are insured in amounts no less than as required by applicable Law, applicable Permits or any Material Contract relating to the Project Company or the Project for such Acquisition, to which such Person is a party or by which its assets or properties are bound.

2.17     Financial Model. The Financial Model for the Project relating to such Acquisition has been prepared in good faith based on reasonable assumptions as to the estimates set forth therein and is consistent in all material respects with the provisions of the Material Contracts related for such Acquisition.

2.18     Financial Statements; No Undisclosed Liabilities; No Material Adverse Effect. The Financial Statements for the Project Company for such Acquisition have been prepared in accordance with GAAP applied on a consistent basis with prior periods, are correct and complete in all material respects and present fairly in accordance with GAAP the assets, liabilities, financial condition and results of operations of such Project as at their respective dates for the periods covered by such Financial Statements. Neither the Project Company relating to such Acquisition nor any of such Project Company’s Subsidiaries has Indebtedness other than (i) as disclosed in such Financial Statements or pursuant to the Material Contracts relating to the such Project Company, (ii) incurred since the date of such Financial Statements and disclosed on Section C of the Appendix for such Acquisition, (iii) incurred after the date hereof in accordance with this Agreement, including Section ‎4.1(a), and (iv) interest and fees accrued on any Indebtedness referred to in clause (i) after the date of such Financial Statements. Except as set forth in such Financial Statements, neither the Project Company relating to such Acquisition nor any of such Project Company’s Subsidiaries has any liabilities that would be required to be disclosed on a balance sheet prepared in accordance with GAAP, other than any liabilities incurred in the ordinary course of business since the date of the most recent balance sheet included in such Financial Statements and any liabilities contained in the Material Contracts relating to the Project Company or the Project for such Acquisition, other than liabilities arising under such Material Contracts from contractual breach. Since the date of the most recent balance sheet included in such Financial Statements, no Material Adverse Effect with respect to the Project Company for such Acquisition has occurred.

2.19     Personal Property. The Project Company for such Acquisition and its Subsidiaries have good and valid title to (or a valid leasehold interest in) the Personal Property currently owned or used by such Persons in the operation of the Project relating to such Acquisition (other than Personal Property that individually and in the aggregate are immaterial to such operations), and such title or leasehold interests are free and clear of Liens other than Permitted Liens. All Personal Property that is material to the operation of the Project relating to such Acquisition is in good operating condition and repair, subject to normal wear and maintenance, and is usable in the ordinary course of business.

2.20     Employees. Neither the Project Company for such Acquisition nor any of its Subsidiaries has, or has ever had, any employees.

2.21     Employee Benefits. Neither the Project Company for such Acquisition nor any of its Subsidiaries has, or has ever had, any employee benefit plan (as such term is defined in Section 3(3) of ERISA and/or similar provisions of Japanese law).

2.22     Labor Matters. Neither the Project Company for such Acquisition nor any of its Subsidiaries is a party to any collective bargaining agreement with a labor union or organization or any other Contract with any labor union or other employee representative of a group of employees.

2.23     Intellectual Property. The Project Company for such Acquisition and its Subsidiaries own, license or can acquire on reasonable terms the Intellectual Property necessary to operate the Project relating to such Acquisition. To the Knowledge of Seller, no Intellectual Property required to operate the Project for such Acquisition infringes upon or otherwise violates any intellectual property rights of any third party. With respect to the Project for such Acquisition, there are no unresolved pending or, to the Knowledge of Seller, threatened actions or claims that allege that the Project Company for such Acquisition or any of its Subsidiaries has infringed or otherwise violated any material intellectual property rights of any third party. To the Knowledge of Seller, no third party is infringing, misappropriating or otherwise violating rights in any material respect any Intellectual Property of the Project Company for such Acquisition or any of its Subsidiaries.

2.24     Affiliate Transactions. Except as disclosed on Section D of the Appendix for such Acquisition, there are no transactions, contracts or liabilities between or among (a) the Project Company for such Acquisition and any of its Subsidiaries, on the one hand, and (b) Seller, any of its Affiliates or, to the Knowledge of Seller, any current representative of such Project Company, any Subsidiary of such Project Company, Seller or any other Affiliate of Seller, or any member of the immediate family of any such representative, on the other hand.

2.25     Ohorayama Project. Construction of the Ohorayama Project is currently reasonably expected to reach Final Completion (as defined under that certain Balance of Plant Contract by and between the Seller and Shimizu Corporation dated December 8, 2016) by June 30, 2018 and at a construction cost consistent in all material respects with the construction cost reflected in the Financial Model and, to the Knowledge of Seller, there are no circumstances or events that have occurred or are reasonably likely to occur that, individually or in the aggregate, could reasonably be expected to result in the failure to achieve either of the foregoing. The aggregate amounts of outstanding Indebtedness of the applicable HoldCos and Project Company (and any Subsidiary) (in each case, excluding any Indebtedness owed to any Affiliate thereof) on a consolidated basis with respect to the Ohorayama Project (x) was, as of January 31, 2018, ¥10,094,035,062 (which is the sum of (i) ¥8,536,753,292 drawn under the construction loan plus (ii) ¥786,000,000 of reimbursement obligations for outstanding letters of credit plus (iii) ¥771,281,770 drawn under the consumption tax facility) and (y) as of the Closing Date, shall not exceed ¥12,232,000,000 (which is the sum of (i) ¥10,446,000,000 (the maximum amount that can be drawn under the construction loan) plus (ii) ¥786,000,000 of reimbursement obligations for outstanding letters of credit plus (iii) ¥1,000,000,000 (the maximum amount that can be drawn under the consumption tax facility).

2.26     Otsuki Project. The aggregate amounts of outstanding Indebtedness of the Project Company, any HoldCos and any Subsidiary of any of the Project Company (in each case, excluding any Indebtedness owed to any Affiliate thereof) on a consolidated basis with respect to the Otsuki Project (x) as of the date hereof is ¥514,860,000 (excluding accrued and unpaid interest) and (y) as of the Closing Date shall not exceed ¥514,860,000.

2.27     Antisocial Forces. None of Seller nor any employee, director, executive officer or equivalent person who executes business on behalf of Seller or any HoldCo for an Acquisition (or any of such HoldCo’s Subsidiaries) constitutes Antisocial Forces or, themselves or through third parties, is engaged in Antisocial Activities.

ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF Purchaser

Except as set forth in, or qualified by any matter set forth in, the applicable Schedules, the Purchaser hereby represents and warrants to Seller with respect to each Acquisition as set forth in this Article ‎3 as of (a) the date hereof and (b) as of the Closing Date, in each case, unless otherwise specified in the representations and warranties below, in which case the representation and warranty is made as of such date. Whether or not a particular Section of this Article ‎3 refers to a specific, numbered Schedule for an Acquisition, such Section shall, to the extent applicable, be subject to the exceptions, qualifications, and other matters set forth in the Schedules relating to such Acquisition to the extent that the relevance of such exceptions, qualifications or other matters is reasonably apparent on the face thereof. Purchaser is making the representations and warranties set forth in this Article 3 solely on an Acquisition by Acquisition basis, and the representations and warranties with respect to any one Acquisition shall not apply to any other Acquisition.

3.1       Organization and Status. The Purchaser (a) is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation as set forth in the preamble to this Agreement, (b) is duly qualified, authorized to do business and in good standing in each other jurisdiction where the character of its properties or the nature of its activities makes such qualification necessary, and (c) has all requisite power and authority to own or hold under lease the property it purports to own or hold under lease and to carry on its business as now being conducted. The Purchaser has made available to Seller complete and correct copies of the Organization Documents for the Purchaser.

3.2       Power; Authority; Enforceability. The Purchaser has the legal capacity and power to enter into and perform its obligations under this Agreement and has been duly authorized, in accordance with its Organization Documents, to enter into and perform its obligations under this Agreement with respect to such Acquisition. This Agreement has been duly executed and delivered by the Purchaser and constitutes the legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, moratorium, reorganization and similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity regardless of whether enforceability is considered in a proceeding in equity or at law.

3.3       No Violation. The execution, delivery and performance by the Purchaser of its obligations under this Agreement, including without limitation the purchase of the Acquired Interests for such Acquisition from Seller, do not, and will not, (a) violate any Governmental Rule to which the Purchaser is subject or the Organization Documents of the Purchaser, or (b) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel or require any notice under

any agreement, contract, lease, license, instrument or other arrangement to which the Purchaser is a party or by which the Purchaser is bound.

3.4       No Litigation. The Purchaser is not a party to and has not received written notice of any pending or, to the Knowledge of the Purchaser, threatened litigation, action, suit, proceeding or governmental investigation against the Purchaser, which, in either case, would reasonably be expected to materially impair or delay the ability of the Purchaser to perform its obligations under this Agreement with respect to such Acquisition or which seeks the issuance of an order restraining, enjoining, altering or materially delaying the consummation of the transactions contemplated by this Agreement with respect to such Acquisition.

3.5       Consents and Approvals. Except as set forth in Part VII of Section A of the Appendix relating to such Acquisition, no Consent of any Governmental Authority or any other Person, is required by or with respect to the Purchaser in connection with the execution and delivery of this Agreement by the Purchaser with respect to such Acquisition, or the consummation by the Purchaser of the transaction contemplated hereby with respect to such Acquisition, except for any consents which if not obtained would not reasonably be expected to materially impair or delay the ability of the Purchaser to perform its obligations under this Agreement with respect to such Acquisition.

3.6       Solvency. There are no bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by or, to the Knowledge of the Purchaser, threatened against the Purchaser. The Purchaser (a) has not had a receiver, receiver and manager, liquidator, sequestrator, trustee or other officer with similar powers appointed over all or part of its business or assets, and to the Knowledge of the Purchaser, no application therefor is pending or threatened, (b) is not insolvent or presumed to be insolvent under any applicable Law and is able to pay its debts as and when they fall due, (c) has not made a general assignment for the benefit of its creditors, and (d) has not taken any action to approve any of the foregoing.

3.7       Compliance with Law. To the Knowledge of the Purchaser, there has been no actual violation by the Purchaser of or failure of the Purchaser to comply with any Governmental Rule that is applicable to it, or allegation by any Governmental Authority of such a violation, that would reasonably be expected to prevent or materially impair or delay the consummation of the transactions contemplated by this Agreement applicable to such Acquisition.

3.8       Investment Intent. The Purchaser is acquiring the Acquired Interests for such Acquisition for its own account, for investment and with no view to the distribution thereof in violation of the Securities Act or the securities laws of any state of the United States or any other jurisdiction.

3.9       Accredited Investor. The Purchaser is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3), (7) or (8) of the Securities Act, and is able to bear the economic risk of losing its entire investment in the Acquired Interests for such Acquisition.

3.10     Broker’s Fee. With respect to such Acquisition, the Purchaser has no liability or obligation for any fees or commissions payable to any broker, finder or agent with respect to the transactions contemplated by this Agreement relating to the Acquisition.

3.11     Antisocial Forces. None of Purchaser nor any employee, director, executive officer or equivalent person who executes business on behalf of Purchaser or any Subsidiary Purchaser constitutes Antisocial Forces or, themselves or through third parties, is engaged in Antisocial Activities.

ARTICLE 4
COVENANTS; OTHER OBLIGATIONS

4.1       Covenants Between Signing and Closing. The provisions of this Section ‎4.1 shall apply with respect to an Acquisition during the period from the date hereof to the earlier of the Closing Date of such Acquisition and the termination of this Agreement with respect to such Acquisition pursuant to Section ‎‎‎5.5:

(a)       Project Specific Pre-Closing Covenants of Seller. Seller shall use commercially reasonable efforts to conduct the business, operations and affairs of the Project Company for such Acquisition only in the ordinary and normal course of business, subject to the following provisions with respect to any proposed entry into any Material Contract relating to such Acquisition or any proposed amendment, termination or waiver (in whole or in part) of any Material Contract relating to such Acquisition (each such proposal, a “Material Contract Change”):

(b)       Access, Information and Documents. Subject to the next sentence, Seller will give to the Purchaser and to the Purchaser’s counsel, accountants and other representatives reasonable access during normal business hours to all material Books and Records of the Project Company and the Project for such Acquisition (subject to all applicable safety and insurance requirements and any limitations on Seller’s rights to, or right to provide others with, access) and will furnish to the Purchaser all such documents and copies of documents and all information, including operational reports, with respect to the affairs of the Project Company and the Project for such Acquisition as the Purchaser may reasonably request. If, by reason of any confidentiality obligations imposed on Seller by any counterparty to a Contract who deals at arm’s length with Seller, Seller is unable to comply with the foregoing covenant, Seller and the Purchaser shall use commercially reasonable efforts to obtain all necessary consents or waivers required to make the disclosure (which, in the case of the Purchaser, may include the requirement to enter into a reasonable confidentiality or non-disclosure agreement). The Purchaser agrees to comply with any confidentiality obligations which would be applicable to it under any such Contracts received from Seller hereunder.

(c)       Further Assurances. Each of the parties hereto shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated hereby as soon as practicable.

(d)       Tax. Without the prior written consent of Purchaser, none of Seller, the Project Company for an Acquisition and their respective Subsidiaries shall, to the extent it may affect such Project Company and its Subsidiaries and/or the owners of any such entity, make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any amended Tax Return, settle any Tax claim or assessment, surrender any right to claim a Tax refund, offset or other reduction in Tax liability.

(e)       Distributions. Without the prior written consent of Purchaser, the HoldCo for each Acquisition shall not make any distributions of cash or assets to its equity holders.

4.2       Other Covenants

(a)       Costs, Expenses. Except as may be specified elsewhere in this Agreement, the Purchaser shall pay all costs and expenses, including legal fees and the fees of any broker, environmental consultant, insurance consultant, independent engineer, and title company retained by the Purchaser for its due diligence and its negotiation, performance of and compliance with this Agreement. Seller shall pay all costs and expenses (including in connection with any reports, studies or other documents with respect to an Acquisition listed in Part II of Section C of the applicable Appendix, unless specifically noted therein), including legal fees and the fees of any broker of Seller or its Affiliates, relating to or resulting from the negotiation, performance of and compliance with this Agreement by Seller.

(b)       Public Announcement; Confidentiality. No party hereto shall make or issue, or cause to be made or issued, any public announcement or written statement concerning this Agreement or the transactions contemplated hereby without the prior written consent of the other parties, except to the extent required by law (including any disclosure which, in the

reasonable judgment of the disclosing party, is necessary or appropriate to comply with Governmental Rules and standards governing disclosures to investors) or in accordance with the rules, regulations and orders of any stock exchange. Seller shall not, and shall cause its Affiliates and directors, officers, employees, agents, consultants advisors and partners not to, disclose any confidential information in or relating to this Agreement other than (i) to its Affiliates and its and their directors, officers, employees, agents, consultants, advisors and partners, provided in each case that such recipient is bound by reasonable confidentiality obligations, (ii) as required by applicable law or regulation or (iii) with the prior consent of Purchaser. Seller shall not use, and shall not enable any third party to use, any confidential information in or relating to this Agreement that constitutes material non-public information regarding Purchaser in a manner that is prohibited by the U.S. securities laws.

(c)       Regulatory Approvals. Each party shall use its commercially reasonable efforts to obtain all required regulatory approvals with respect to each Acquisition (including the required Governmental Approvals set forth in Part VII of Section A of the applicable Appendix) as promptly as possible and, in any event, prior to the Closing Date for such Acquisition. To that end, each of the parties shall make, or cause to be made, all other filings and submissions, and submit all other documentation and information that in the reasonable opinion of the Purchaser is required or advisable, to obtain the regulatory approvals for each Acquisition, and will use its commercially reasonable efforts to satisfy all requests for additional information and documentation received under or pursuant to those filings, submissions and the applicable legislation and any orders or requests made by any Governmental Authority. Notwithstanding any other provision of this Agreement, the Purchaser will not be required to (i) propose or agree to accept any undertaking or condition, enter into any consent agreement, make any divestiture or accept any operational restriction or other behavioral remedy with respect to any Acquisition, (ii) take any action that, in the reasonable judgment of the Purchaser, could be expected to limit the right of the Purchaser to own or operate all or any portion of the business or assets of the Project Company for an Acquisition or of the Purchaser or any of its Affiliates, or to conduct their respective affairs in a manner consistent with how they each conduct their affairs as of the date of this Agreement, or (iii) contest or defend any judicial or administrative proceeding brought by any Governmental Authority seeking to prohibit, prevent, restrict or unwind the consummation of all or a part of an Acquisition.

(d)       Consents. Except in respect of regulatory approvals, which shall be governed by Section ‎4.2(c), as promptly as possible and, in any event, prior to the Closing Date, Seller shall use commercially reasonable efforts to (i) make or cause to be made all filings required by Law to be made by it in order to consummate each Acquisition; and (ii) seek and obtain all Consents required pursuant to Part VII of Section A of the Appendix relating to such Acquisition.

(e)       Other Obligations of Seller and Purchaser. The parties mutually covenant as follows:

(f)       Allocation of Partnership Income and Loss. With respect to the income or loss of the Project Company for an Acquisition for the fiscal year in which the Closing occurs, the Purchaser shall cause such Project Company to allocate income or loss of such Project Company with respect to the Acquired Interests for such Acquisition for the period up to and including the Closing Date to the Seller, and to allocate income or loss of such Project Company with respect to such Acquired Interests for the period after the Closing Date to Purchaser.

4.3       Tax Covenants.

(a)       Seller shall prepare or cause to be prepared and file or cause to be filed (i) all Tax Returns for each HoldCo and its Subsidiaries that do not include any Post-Closing Tax Period and (ii) all Tax Returns that the such HoldCo and its Subsidiaries file jointly with the Seller or any of its Affiliates. Seller shall permit Purchaser to review, comment and consent on each such Tax Return prior to filing it and shall reasonably and in good faith consider such revisions to such Tax Returns as are requested by Purchaser. To the extent that any Taxes shown as due and payable on any such Tax Return were not included in the calculation of the Purchase Price, such Taxes shall be paid by Seller.

(b)       Except as set forth in Section 4.03(c), Buyer shall prepare or cause to be prepared and file or cause to be filed all Tax Returns for each HoldCo and its Subsidiaries. Purchaser shall permit Seller to review and comment on each such Tax Return that relates to a Pre-Closing Tax Period prior to filing it, to the extent that such Tax Return could result in a Tax liability for which Seller would be responsible under this Agreement, and Purchaser shall reasonably and in good faith consider such revisions to such Tax Returns as are requested by Seller. Any Covered Taxes for any Tax Period with respect to which such Tax Returns were filed shall be promptly paid to Buyer or, at Buyer’s request, to the applicable Governmental Authority, to the extent not included in the calculation of the Purchase Price.

(c)       For purposes of the determination of Covered Tax in respect of a Straddle Tax Period, (i) in the case of any Taxes other than gross receipts, sales or use Taxes and Taxes based upon or related to income, the definition of Covered Tax shall be deemed to include the amount of such Tax for the entire Tax period multiplied by a fraction the numerator of which is

the number of days in the Tax period ending on and including the Closing Date and the denominator of which is the number of days in the entire Tax period, and (ii) in the case of any Tax based upon or related to income and any gross receipts, sales or use Tax, the definition of Covered Tax shall be deemed to include the amount that would be payable if the relevant Tax period ended on and included the Closing Date.

(d)       All transfer (including real property transfer), stamp, issuance, sales, use, filing, recording, documentary, value added, ad valorem or similar taxes or governmental fees or assessments (collectively, and including any penalties and interest, “Transfer Taxes”) incurred in connection with an Acquisition contemplated by this Agreement shall be borne in equal parts by Purchaser and Seller. The party that is required by applicable Law to file any Tax Return with respect to Transfer Taxes shall do so, and the other party shall reasonably cooperate with respect thereto. If either party may file any such required Tax Return, Seller shall file the Tax Return and Purchaser agrees to reasonably cooperate with Seller with respect thereto.

4.4       Scope of Covenants. The covenants and agreements contained in this Article 4 shall apply on an Acquisition by Acquisition bases, and any breach of any covenant or agreement with respect to any one Acquisition shall not in and of itself constitute a breach of such covenant or agreement with respect to any other Acquisition.

ARTICLE 5
CONDITIONS TO CLOSING; TERMINATION

5.1       Conditions Precedent to Each Party’s Obligations to Close. The obligations of the parties to proceed with a Closing with respect to an Acquisition under this Agreement are subject to the fulfillment prior to or at such Closing of the following conditions (any one or more of which may be waived in whole or in part by all parties in their sole discretion):

(a)       No Violations. The consummation of such Acquisition shall not violate any applicable Governmental Rule.

(b)       No Adverse Proceeding. No order of any court or administrative agency shall be in effect which restrains or prohibits such Acquisition, and there shall not have been threatened, nor shall there be pending, any action or proceeding by or before any court or Governmental Authority challenging such Acquisition or seeking monetary relief by reason of the consummation of such Acquisition.

(c)       No Termination. The obligations under this Agreement with respect to such Acquisition shall not have been terminated pursuant to Section ‎5.4.

(d)       Other Conditions Precedent to Closing to Each Party’s Obligations. The conditions precedent, if any, set forth on Section A-3 of the Appendix relating to such Acquisition shall have been satisfied (any one or more of which may be waived in whole or in part by all parties in their sole discretion).

5.2       Conditions Precedent to the Obligations of Purchaser to Close. The obligations of the Purchaser to proceed with a Closing with respect to an Acquisition under this Agreement are

subject to the fulfillment prior to or at such Closing of the following conditions (any one or more of which may be waived in whole or in part by the Purchaser in its sole discretion):

(a)       Representations and Warranties. The representations and warranties of Seller set forth in Sections ‎2.1 to ‎2.7 (inclusive) and ‎2.11 with respect to such Acquisition shall be true and correct as of the Closing Date as if made at and as of such date. All other representations and warranties of Seller set forth in Article 2 with respect to such Acquisition shall be true and correct at and as of such Closing Date as if made at and as of such date (other than any representations or warranties that are qualified by materiality, including by reference to Material Adverse Effect with respect to such Acquisition, which shall be true in all respects) as though such representations and warranties were made on and as of such Closing Date, except to the extent that (i) such representations and warranties expressly relate to an earlier date, in which case as of such earlier date and (ii) the failure of such representations and warranties to be true and correct, taken in the aggregate, would not have a Material Adverse Effect with respect to such Acquisition.

(b)       Performance and Compliance. Seller shall have performed, in all material respects, all of the covenants and complied with all of the provisions required by this Agreement to be performed or complied with by it with respect to such Acquisition on or before such Closing.

(c)       Consents. All necessary Consents relating to such Acquisition shall have been obtained, including those set forth in Part VII of Section A of the Appendix relating to such Acquisition.

(d)       Certificate of Seller. The Purchaser shall have received a certificate of Seller dated the date of such Closing confirming the matters set forth in Sections ‎5.2(a) and ‎(b) with respect to such Acquisition in a form reasonably acceptable to the Purchaser.

(e)       Good Standing Certificate. The Purchaser shall have received a good standing certificate of Seller and the Project Company relating to such Acquisition, in each case issued by the secretary of state or equivalent local Governmental Authority of the state or local jurisdiction of its formation; provided that in the case of any entities formed under the laws of Japan, documents which are customary delivered for Japanese entities which evidence the equivalent shall be delivered in lieu of a good standing certificate.

(f)       Satisfactory Instruments. All instruments and documents reasonably required on the part of Seller to effectuate and consummate such Acquisition shall be delivered to the Purchaser and shall be in form and substance reasonably satisfactory to the Purchaser.

(g)       Material Contracts. Absence of any amendment to, entry into, termination or waiver (in whole or in part) of any applicable Material Contract relating to such Acquisition, except any such amendment, termination or waiver that has been approved by the Purchaser that would reasonably be expected to materially and adversely affect the Project or any applicable HoldCo.

(h)       Other Conditions Precedent to Seller’s Obligation to Close. The conditions precedent, if any, set forth in Part IV of Section A of the Appendix relating to such

Acquisition shall have been satisfied or waived in whole or in part by Purchaser in Purchaser’s sole discretion.

5.3       Conditions Precedent to the Obligations of Seller to Close. The obligations of Seller to proceed with a Closing with respect to an Acquisition under this Agreement are subject to the fulfillment prior to or at such Closing of the following conditions (any one or more of which may be waived in whole or in part by Seller in its sole discretion):

(a)       Purchase Price. The Purchaser shall have transferred in immediately available funds the Purchase Price for such Acquisition pursuant to, in accordance with and into the account or accounts designated in, Part I of Section A of the Appendix relating to such Acquisition.

(b)       Representations and Warranties. The representations and warranties set forth in Article ‎3 with respect to such Acquisition shall be true and correct at and as of such Closing Date as if made at and as of such date (other than any representations or warranties that are made as of a specific date, which shall be true and correct as of such date).

(c)       Performance and Compliance. The Purchaser shall have performed, in all material respects, all of the covenants and complied with all the provisions required by this Agreement to be performed or complied with by it with respect to such Acquisition on or before such Closing.

(d)       Certificate of Purchaser. Seller shall have received a certificate of the Purchaser dated the date of such Closing confirming the matters set forth in Sections ‎5.3(b) and ‎(c) relating to such Acquisition in a form reasonably acceptable to Seller.

(e)       Satisfactory Instruments. All instruments and documents required on the part of the Purchaser to effectuate and consummate such Acquisition shall be delivered to Seller and shall be in form and substance reasonably satisfactory to Seller.

(f)       Other Conditions Precedent to Seller’s Obligation to Close. The conditions precedent, if any, set forth in Section A-5 of the Appendix relating to such Acquisition shall have been satisfied or waived in whole or in part by Seller in Seller’s sole discretion.

5.4       Scope of Conditions. The conditions set forth in Sections 5.1, 5.2 and 5.3 shall be applied on an Acquisition by Acquisition basis, and the satisfaction, failure or waiver of any condition relating to an Acquisition shall not in and of itself constitute the satisfaction, failure or waiver of any condition relating to any other Acquisitions.

5.5       Termination. The following termination provisions shall be applicable to the Acquisitions prior to the Closing and shall apply to all of the Acquisitions such that a termination of the obligations of the parties under this Agreement with respect to an Acquisition shall terminate such obligations of the parties with respect to each other Acquisition:

(a)       By the Parties. The obligations of the parties under this Agreement with respect to an Acquisition may be terminated at any time prior to the Closing for such Acquisition by mutual written consent of Purchaser and Seller.

(b)       By Either Party. The obligations of the parties under this Agreement with respect to an Acquisition may be terminated at any time prior to the Closing for such Acquisition by either Seller or the Purchaser, if (i) a Government Approval required to be obtained as set forth on Part VII of Section A of the Appendix for such Acquisition shall have been denied and all appeals of such denial have been taken and have been unsuccessful, (ii) one or more courts of competent jurisdiction in the United States, or any state or any other applicable jurisdiction has issued an order permanently restraining, enjoining, or otherwise prohibiting the Closing of such Acquisition, and such order has become final and non-appealable, or (iii) the Closing of such Acquisition has not occurred by the Outside Closing Date for such Acquisition, but if such failure to close by such Outside Closing Date is due to any breach of this Agreement relating to such Acquisition by any party, such party shall not have any right to terminate this Agreement with respect to such Acquisition pursuant to this clause (iii).

(c)       Other Termination Rights. The obligations of the parties under this Agreement with respect to an Acquisition may be terminated at any time prior to the Closing of such Acquisition by the applicable party if and to the extent permitted in Part V of Section A of the Appendix for such Acquisition.

(d)       Termination Procedure. In the event of termination of the obligations of the parties under this Agreement with respect to an Acquisition by any or all parties pursuant to this Section ‎‎‎5.5, written notice thereof will forthwith be given by the terminating party to the other parties and the obligations of the parties under this Agreement with respect to such Acquisition will terminate and the Closing for such Acquisition without further action by any party. If the obligations of the parties under this Agreement with respect to an Acquisition are terminated as permitted by this Section ‎‎‎5.5, such termination shall be without liability of any party (or any stockholder, shareholder, director, officer, employee, agent, consultant or representative of such party) to the other parties to this Agreement with respect to such Acquisition; provided that (i) the foregoing will not relieve any party for any liability for willful and intentional material breaches of its obligations hereunder occurring prior to such termination and (ii) except as specifically set forth herein, nothing in this Agreement shall derogate from the provisions of the Purchase Rights Agreements, which agreements shall remain in full force and effect after any termination of this Agreement.

5.6       Closing Notice. Upon the satisfaction of the conditions set forth in Sections ‎5.1 and ‎5.2 with respect to any Acquisition, Seller shall deliver a notice to Purchaser scheduling the date of the Closing for such Acquisition (a “Closing Notice”), which shall be at least ten (10) Business Days after the date of delivery of the Closing Notice.

ARTICLE 6
REMEDIES FOR BREACHES OF THIS AGREEMENT

6.1       Indemnification.

(a)       By Seller. Subject to Part VI of Section A of the applicable Appendix and the limitations set forth in this Article ‎6 and Section ‎7.14, from and after the Closing of an Acquisition, Seller agrees to indemnify and hold harmless the Purchaser and its Affiliates together with their respective directors, officers, managers, employees and agents (each a “Purchaser Indemnified Party”) from and against any and all Losses that any Purchaser Indemnified Party incurs with respect to such Acquisition by reason of or in connection with any of the following circumstances:

(b)       By Purchaser. Subject to Part VI of Section A of the applicable Appendix and the limitations set forth in this Article ‎6 and Section ‎7.14, from and after the Closing of an Acquisition, the Purchaser agrees to indemnify and hold harmless Seller and Seller’s Affiliates together with their respective directors, officers, managers, employees and agents (each a “Seller Indemnified Party”) from and against any and all Losses that any Seller Indemnified Party incurs with respect to such Acquisition by reason of or in connection with any of the following circumstances:

6.2       Limitations on Seller’s or Purchaser’s Indemnification.

(a)       Minimum Limit on Claims. A party required to provide indemnification under this Article ‎6 (an “Indemnifying Party”) with respect to an Acquisition shall not be liable under this Article ‎6 to an Indemnified Party for any Claim for breach of any representation or warranty with respect to such Acquisition unless and until the aggregate amount of all Claims with respect to such Acquisition for which it would, in the absence of this provision, be liable exceeds the Basket Amount for such Acquisition, and in such event the Indemnified Party will be liable for the amount of all Claims with respect to such Acquisition, including the applicable Basket Amount; provided that the foregoing limitation shall not apply in the case of actual fraud or willful misrepresentation by the Indemnifying Party with respect to such Acquisition or, for the avoidance of doubt, to Covered Taxes.

(b)       Maximum Limit on Claims.

(c)       Time Limit for Claims. No Indemnified Party may make a Claim for indemnification under Section ‎6.1 in respect of any Claim unless notice in writing of the Claim, incorporating a statement setting out in reasonable detail the grounds on which the Claim is based, has been given by the Indemnified Party prior to the expiration of the applicable Survival Period as set forth in Part VI of Section A of the Appendix relating to the applicable Acquisition.

6.3       Reimbursements; Refunds.

(a)       Right of Reimbursement. Subject to Part VI of Section A of the applicable Appendix, the amount of Losses payable under Section ‎6.1 by an Indemnifying Party shall be net of any amounts recovered by the Indemnified Party under applicable insurance policies or from any other Person responsible therefor. If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person responsible for any Losses subsequent to an indemnification payment by the Indemnifying Party and such amounts would result in a duplicative recovery, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made or expense incurred by such Indemnifying Party in connection with providing such indemnification payment up to the amount received by the Indemnified Party, net of any expenses incurred by such Indemnified Party in collecting such amount.

(b)       Other Refund Obligations. In addition to the obligations set forth in Section ‎6.3(a), the applicable Indemnified Party shall be obligated to reimburse or refund to the Indemnifying Party for payments made by it to such Indemnified Party under this Article ‎6 with respect to an Acquisition as set forth in Part VI of Section A of the Appendix for such Acquisition.

6.4       Mitigation; Treatment of Indemnification.

(a)       The Indemnified Party shall use commercially reasonable efforts to mitigate all Losses relating to a Claim for which indemnification is sought under this Article ‎6.

(b)       All indemnification payments under this Article ‎6 with respect to an Acquisition shall be deemed adjustments to the Purchase Price for such Acquisition.

6.5       Exclusive Remedy. Seller and Purchaser acknowledge and agree that, upon the occurrence of a Closing for an Acquisition, and excluding liability for actual fraud or willful misrepresentation, the foregoing indemnification provisions of this Article ‎6 and the provisions of Section ‎7.15 shall be the sole and exclusive remedy of Seller and Purchaser with respect to any applicable misrepresentation, breach of warranty, covenant or other agreement (other than any Purchase Price Adjustment set forth in Part I of Section A of the Appendix for such Acquisition) or other claim arising out of such Acquisition and/or the applicable provisions of this Agreement. Without limiting the generality of the foregoing, effective as of a Closing for an Acquisition each of the Purchaser and Seller covenants to the other party that in respect of any matters under or contemplated in this Agreement, it will not make any Claim whatsoever against any Affiliate of the other party or the directors, officers, managers, shareholders, member, controlling persons, employees and agents of any of the foregoing, in each case in their capacities as such, with respect to such Acquisition and its rights in respect of any such Claim for breach of any provision of this Agreement with respect to such Acquisition are limited solely to such rights as it may have against Seller or Purchaser, as the case may be, under this Agreement with respect to such Acquisition.

ARTICLE 7
MISCELLANEOUS

7.1       Entire Agreement. This Agreement and the Exhibits, Schedules and Appendices hereto, each of which is hereby incorporated herein, set forth all of the promises, covenants, agreements, conditions, undertakings, representations and warranties between the parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous agreements and understandings, inducements or conditions, express or implied, oral or written.

7.2       Notices. All notices, requests, demands and other communications hereunder shall be in writing (including facsimile transmission and electronic mail (“email”) transmission and shall be deemed to have been duly given if personally delivered, telefaxed (with confirmation of transmission), e-mailed (so long as confirmation of receipt is requested and received) or, if mailed, when mailed by first-class (for United States post only), certified or registered mail, postage prepaid, or by any international or national overnight delivery service, to the other party at the addresses as set forth in Part VII of Section A (or at such other address as shall be given in writing by any party to the other). All such notices, requests, demands and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5 p.m. in the place of receipt and such day is a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

7.3       Successors and Assigns.

(a)       No party shall assign this Agreement or any of its rights or obligations herein without the prior written consent of the other parties, in their sole discretion, except as provided herein and except that any party may assign this Agreement or any of its rights or obligations herein to an Affiliate of such party but the assigning party shall continue to be liable for all of its obligations hereunder following any such assignment. Subject to the foregoing, this Agreement, and all rights and powers granted hereby, will bind and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

(b)       Notwithstanding Section ‎7.3(a), each of Seller and Purchaser may assign its rights and obligations under this Agreement with respect to an Acquisition without the consent of the other parties as specified in Part VII of Section A of the Appendix relating to such Acquisition.

7.4       Jurisdiction; Service of Process; Waiver of Jury Trial.

(a)       EACH OF THE PARTIES HERETO WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(b)       Any and all claims, counterclaims, demands, causes of action, disputes, controversies, and other matters in question arising out of or relating to this Agreement, or the alleged breach hereof, or in any way relating to the subject matter of this Agreement or the relationship between the parties created by this Agreement (hereafter, a “Dispute”), except for

any claims for specific performance as set forth in Section ‎7.15, shall be finally resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under the AAA Commercial Arbitration Rules, including the Procedures for Large, Complex Commercial Disputes (the “Rules”) then in force to the extent such Rules are not inconsistent with the provisions of this Agreement. The party or parties commencing arbitration shall deliver to the other party or parties a written notice of intent to arbitrate (a “Demand”) in accordance with Rule R-4. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et seq.

7.5       Headings; Construction; and Interpretation. The headings preceding the text of the sections and subsections hereof are inserted solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect. Except as otherwise expressly provided, the rules of construction set forth in Exhibit B shall apply to this Agreement. The parties agree that any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the party that drafted it has no application and is expressly waived.

7.6       Further Assurances. Each party shall cooperate and take such action as may be reasonably requested by the other party in order to carry out the provisions and purposes of this Agreement and the transactions contemplated hereby.

7.7       Amendment and Waiver. The parties may by mutual agreement amend this Agreement in any respect, and any party, as to such party, may (a) extend the time for the performance of any of the obligations of any other party, (b) waive any inaccuracies in representations by any other party, (c) waive compliance by any other party with any of the agreements contained herein and performance of any obligations by such other party, and (d) waive the fulfillment of any condition that is precedent to the performance by such party of any of its obligations under this Agreement. To be effective, any such amendment or waiver must be in writing and be signed by the party against whom enforcement of the same is sought.

7.8       No Other Beneficiaries. This Agreement is being made and entered into solely for the benefit of Purchaser and Seller, and neither Purchaser nor Seller intends hereby to create any rights in favor of any other Person as a third party beneficiary of this Agreement or otherwise.

7.9       Governing Law. This Agreement as it relates to an Acquisition shall be governed by and construed in accordance with the laws of the jurisdiction specified in Part VII of Section A of the Appendix for such Acquisition.

7.10     Schedules. References to a Schedule relating to an Acquisition shall include any disclosure expressly set forth on the face of any other Schedule relating to such Acquisition even if not specifically cross-referenced to such other Schedule to the extent that the relevance of such matter is reasonably apparent on the face thereof. The fact that any item of information is contained in a disclosure schedule shall not be construed as an admission of liability under any Governmental Rule, or to mean that such information is material. Such information shall not be used as the basis for interpreting the term “material”, “materially” or any similar qualification in this Agreement.

7.11     Limitation of Representations and Warranties. The Purchaser acknowledges that except as expressly provided in Article 2 of this Agreement with respect to an Acquisition, Seller has not made, and Seller hereby expressly disclaims and negates, and the Purchaser hereby expressly waives, any other representation or warranty, express, implied, at Law or otherwise relating to the Acquired Interests, Seller or Seller’s Affiliates, the Project Companies, the Projects or this Agreement.

7.12     Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument. A facsimile or electronically imaged version of this Agreement may be executed by one or more parties hereto and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or “PDF” electronic mail pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes.

7.13     Severability. If any provision of this Agreement or any other agreement entered into pursuant hereto is contrary to, prohibited by or deemed invalid under applicable law or regulation, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated thereby and shall be given full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

7.14     Limit on Damages. Each party hereto acknowledges and agrees that neither party shall be liable to the other party for any punitive damages (except to the extent paid to a third party in respect of a Third Party Claim) or damages that were not reasonably foreseeable.

7.15     Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in any court of competent jurisdiction, in addition to any other remedy to which they are entitled at law or in equity.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the parties hereto have executed this Purchase and Sale Agreement as of the day and year first above written.

[Signature Page to Purchase and Sale Agreement]

[Signature Page to Purchase and Sale Agreement]

EXHIBIT A: GENERAL DEFINITIONS
(as applicable and to the extent used in the final Agreement)