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SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Jay M. Goffman J. Eric Ivester Shana Elberg Four Times Square New York, New York 10036-6522 Telephone: (212) 735-3000 Fax: (212) 735-2000 -and- James J. Mazza, Jr. (admitted pro hac vice) Louis S. Chiappetta (admitted pro hac vice) 155 N. Wacker Dr. Chicago, Illinois 60606-1720 Telephone: (312) 407-0700 Fax: (312) 407-0411

Counsel for Debtors and Debtors in Possession

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

: In re: : Chapter 11 : SUNEDISON, INC., et al., : Case No. 16-10992 (SMB) : Debtors.1 : (Jointly Administered) : :

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtors’ tax identification number are as follows: SunEdison, Inc. (5767); SunEdison DG, LLC (N/A); SUNE Wind Holdings, Inc. (2144); SUNE Hawaii Solar Holdings, LLC (0994); First Wind Solar Portfolio, LLC (5014); First Wind California Holdings, LLC (7697); SunEdison Holdings Corporation (8669); SunEdison Utility Holdings, Inc. (6443); SunEdison International, Inc. (4551); SUNE ML 1, LLC (3132); MEMC Pasadena, Inc. (5238); Solaicx (1969); SunEdison Contracting, LLC (3819); NVT, LLC (5370); NVT Licenses, LLC (5445); Team-Solar, Inc. (7782); SunEdison Canada, LLC (6287); Enflex Corporation (5515); Fotowatio Renewable Ventures, Inc. (1788); Silver Ridge Power Holdings, LLC (5886); SunEdison International, LLC (1567); Sun Edison LLC (1450); SunEdison Products Singapore Pte. Ltd. (7373); SunEdison Residential Services, LLC (5787); PVT Solar, Inc. (3308); SEV Merger Sub Inc. (N/A); Sunflower Renewable Holdings 1, LLC (6273); Blue Sky West Capital, LLC (7962); First Wind Oakfield Portfolio, LLC (3711); First Wind Panhandle Holdings III, LLC (4238); DSP Renewables, LLC (5513); Hancock Renewables Holdings, LLC (N/A). The address of the Debtors’ corporate headquarters is 13736 Riverport Dr., Maryland Heights, Missouri 63043. 16-10992-smb Doc 695 Filed 07/05/16 Entered 07/05/16 11:38:27 Main Document Pg 2 of 44

DEBTORS’ MOTION FOR (I) AN ORDER AUTHORIZING AND APPROVING A PRIVATE SALE OF EQUITY INTERESTS IN IMPERIAL VALLEY SOLAR 2, LLC AND 88FT 8ME LLC; OR, (II) IN THE ALTERNATIVE, FOR (1) AN ORDER (A) AUTHORIZING CERTAIN DEBTORS’ ENTRY INTO THE STALKING HORSE AGREEMENT, (B) APPROVING BIDDING PROCEDURES AND STALKING HORSE BID PROTECTIONS IN CONNECTION WITH SALE OF ASSETS OF THE DEBTORS, (C) SCHEDULING AUCTION AND SALE HEARING, AND (D) GRANTING RELATED RELIEF; AND (2) THEREAFTER, AN ORDER (A) APPROVING THE SALE OF EQUITY INTERESTS IN IMPERIAL VALLEY SOLAR 2, LLC AND 88FT 8ME LLC FREE AND CLEAR OF ALL LIENS, CLAIMS, AND ENCUMBRANCES AND (B) GRANTING RELATED RELIEF

SunEdison, Inc. (“SUNE”) and certain of its affiliates, the debtors and debtors in

possession in the above-captioned cases (collectively, the “Debtors” and, together with their non-

Debtor affiliates, “SunEdison” or the “Company”)2 hereby move (the “Motion”) this Court,

pursuant to sections 105(a), 363(b), 363(f), 363(m), 503, 507, 541(a), 1107, and 1108 of Title 11

of the United States Code (the “Bankruptcy Code”), and Rules 2002, 6004, 9006, 9007, and

9014 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), for entry of an

order (the “Private Sale Order”) substantially in the form attached hereto as Exhibit A,

authorizing SUNE and First Wind California Holdings, LLC (“FWCH,” and, together with

SUNE, the “Seller Parties”) to sell and transfer 100% of the equity interests (such equity

interests, collectively, the “Equity Interests”) in (1) Imperial Valley Solar 2, LLC (“IVS2”) and

(2) 88FT 8ME LLC (“88FT” and, together with IVS2, the “Subsidiaries”) to DESRI MS2

Development, L.L.C. (the “Buyer”) via a private sale pursuant to, and in accordance with, that

certain Purchase and Sale Agreement, dated as of July 1, 2016 (together with all related

agreements, documents or instruments and all exhibits, schedules, and supplements to any of the

foregoing, as the same may be subsequently amended or otherwise modified in accordance with

2 For purposes herein, the definition of “SunEdison” and “Company” does not include Terraform Power, Inc. (“TERP”) and Terraform Global, Inc., and each of their respective direct and indirect subsidiaries, unless otherwise provided.

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the terms thereof and hereof, the “PSA”, and the transactions described therein, the “Sale

Transaction”), by and among the Seller Parties and Buyer, free and clear of all liens, claims,

interests, and encumbrances (collectively, the “Liens”), with such Liens attaching to the proceeds

of the Sale Transaction with the same validity, extent, and priority as had attached to the Equity

Interests immediately prior to the sale or transfer. In support of the Motion, the Debtors rely

upon and incorporate by reference the Declarations of (i) Patrick M. Cook, Vice-President –

Capital Markets And Corporate Finance of SunEdison, Inc., in Support of Chapter 11 Petitions

and First Day Pleadings (the “First Day Declaration”), filed with this Court on the Petition Date

(as defined herein), (ii) Hy Martin of SunEdison, Inc., in Support of the Motion (the “Martin

Declaration”) filed contemporaneously herewith, and (iii) Homer Parkhill of Rothschild, Inc. in

Support of the Motion (the “Parkhill Declaration”) filed contemporaneously herewith.

For the reasons stated herein and in the Declarations, the Debtors respectfully submit that

approval of the Private Sale Transaction maximizes the value of the Equity Interests, avoids the

risk of potentially substantial value degradation based on imminent project development

deadlines and is otherwise in the best interests of the Debtors’ estates. However, in the event

that the Court is unwilling to enter the Private Sale Order granting such relief, the Debtors

request that in the alternative the Court enter (I) an order substantially in the form attached as

Exhibit B hereto (the “Auction Sale Procedures Order”) (a) approving bidding procedures for an

expedited auction process substantially in the form attached as Exhibit 1 to the Auction Sale

Procedures Order, (b) approving the Buyer as the stalking horse bidder and the PSA as a stalking

horse purchase agreement, in each case with respect to the sale of the Equity Interests, and (c)

granting Buyer, as the stalking horse bidder, certain customary bid protections, including

payment of a break-up fee and expense reimbursement, in each case as more fully described

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herein, and (II) an order (the “Auction Sale Order”) approving the Sale Transaction to the Buyer

or Prevailing Purchaser (as defined herein) following the Auction (as defined herein), as

applicable.

In further support of the Motion, the Debtors, by and through their proposed undersigned

counsel, respectfully represent:3

JURISDICTION AND VENUE

1. This Court has jurisdiction to consider this Motion under 28 U.S.C. §§ 157

and 1334. This is a core proceeding under 28 U.S.C. § 157(b). Venue of these cases and this

Motion in this district is proper under 28 U.S.C. §§ 1408 and 1409.

2. The legal predicates for the relief requested herein are Bankruptcy Code

sections 105(a), 363(b), 363(f), 363(m), 503, 507, 541(a), 1107, and 1108, Bankruptcy Rules

2002, 6004, 9006, 9007, 9014, and Rules 6004-1 and 6006-1 of the Local Rules (the “Local

Bankruptcy Rules”) for the United States Bankruptcy Court for the Southern District of New

York (the “Bankruptcy Court”) and the Amended Guidelines for the Conduct of Asset Sales,

General Order M-383 of the Bankruptcy Court (the “Sale Guidelines”).

BACKGROUND A. The Chapter 11 Cases

3. On April 21, 2016 (the “Petition Date”),4 the Debtors each commenced a

case (the “Initial Chapter 11 Cases”) by filing a petition for relief under chapter 11 of the

3 The Debtors have actively engaged with the advisors to the lenders (the “DIP Lenders”) under the Debtors’ debtor in possession financing facilities and the advisors to the Committee in connection with the relief requested herein. Specifically, the Debtors provided drafts of the PSA, the Bidding Procedures, and this Motion to advisors to the DIP Lenders and the Committee and included various comments received from such advisors. The Debtors also provided other information to, and answered questions from, advisors to the DIP Lenders and the Committee, including with respect to the expedited timing of the sale of the Project.

4 For the avoidance of doubt, all references to “Petition Date” refer to the April 21, 2016 filing of the 26 debtors unless specified that it is the “June 1st Petition Date.”

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Bankruptcy Code, in the United States Bankruptcy Court for the Southern District of New York.

On June 1, 2016, an additional six Debtors5 filed voluntary petitions for relief under the

Bankruptcy Code (collectively with the Initial Chapter 11 Cases, the “Chapter 11 Cases”). The

Debtors’ Chapter 11 Cases have been consolidated for procedural purposes only and are being

jointly administered.

4. The Debtors continue to operate their businesses and manage their

properties as debtors and debtors in possession pursuant to Bankruptcy Code sections 1107(a)

and 1108.

5. On April 29, 2016 an official creditors’ committee (the “Committee”) was

appointed for these Chapter 11 Cases by the Office of the United States Trustee for the Southern

District of New York (the “United States Trustee”). No trustee or examiner has been appointed

in the Debtors’ Chapter 11 Cases.

6. SunEdison is one of the world’s leading developers of renewable-energy

solutions. In addition to its development business, SunEdison owns, operates and/or provides

maintenance services for clean power generation assets. SunEdison’s renewable-energy

development business is a global enterprise with substantial development activities on six

continents.

7. Additional factual background information regarding the Debtors,

including their business operations, their corporate and capital structure, and the events leading

to these Chapter 11 Cases, is set forth in detail in the First Day Declaration.6

5 Sunflower Renewable Holdings 1, LLC (6273); Blue Sky West Capital, LLC (7962); First Wind Oakfield Portfolio, LLC (3711); First Wind Panhandle Holdings III, LLC (4238); DSP Renewables, LLC (5513); Hancock Renewables Holdings, LLC (N/A).

6 Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the First Day Declaration.

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B. The Equity Interests

8. SunEdison, in the ordinary course of its development business, is in the

process of developing two interrelated projects, known as the Mt Signal 2 Project (the “Mt

Signal 2 Project” or “Project”) and the Mt Signal 3 Project, respectively (together with the Mt

Signal 2 Project, the “Projects”). The Mt Signal 2 Project is a 201 megawatt (“MW”)

photovoltaic energy project, and the Mt Signal 3 Project is a 245 MW photovoltaic energy

project; both are located in Imperial Valley, California. Both Projects were originally developed

by 8minutenergy Renewables (“8ME”), and the Mt Signal 2 Project was sold to SunEdison.

While certain assets relating to the Mt Signal 2 Project are owned by IVS2 and 88FT, certain

assets relating to the Mt Signal 3 Project are owned by other subsidiaries of SUNE. The two

Projects are currently under development, although the progress of development has greatly

slowed since the commencement of these Chapter 11 Cases, requiring any buyer to expend

significant funds in order to proceed with construction and complete the Projects.

C. Challenges Facing Debtors’ Ability to Preserve and Monetize Value of the Mt Signal 2 Project

9. The Debtors’ ability to preserve and monetize value in the Mt Signal 2

Project faces significant and imminent challenges. The most immediate threat to the Mt Signal 2

Project is the risk that critical interconnection rights granted pursuant to the California

Independent System Operator Corporation’s (“CAISO”) tariff will expire on August 22, 2016

(the ten year anniversary of the underlying interconnection agreement) unless an extension is

granted by CAISO prior to such date.7 Without valid interconnection rights, the owner of the Mt

7 In September, 2015, CAISO granted the Debtors an extension for the Projects through and including October 31, 2016. However, the validity of this extension is unclear since the governing tariff in effect at that time only permitted an extension through August 22, 2016.

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Signal 2 Project has no ability to sell the power such project will generate, thus rendering the

project much less valuable without the ability to generate the same amount of revenue as

originally envisioned. CAISO generally requires up to 60 days to process an extension request,

but is unlikely to process an extension request in less than approximately 30 days. Unlike with

respect to the Mt Signal 3 Project, the Debtors can start the process of obtaining an extension

prior to closing of the sale of the Equity Interests, however, the Buyer and the Seller Parties

believe CAISO is unlikely to grant the extension unless the transferee is identified prior to the

August 22, 2016 deadline.8

10. Second, certain conditional use permits and building permits for the Mt

Signal 2 Project must also be renewed with the County of Imperial, California by August, 2016.

Like the CAISO extension process, the project owner must begin the process of renewing these

permits by mid-July, 2016, at the latest. Without such renewals, the Mt Signal 2 Project will be

significantly delayed.9

11. Third, the Mt Signal 2 Project shares complex co-tenancies, shared

infrastructure, rights of way and transmission facilities with the Mt Signal 3 Project that need to

be addressed with the current Mt Signal 3 Project owner/developer, 8ME, to preserve and

maximize the value of the Mt Signal 2 Project. For example, a local governmental entity, the

Imperial Irrigation District (the “IID”), has placed a limit on the transmission capacity of the line

(referred to as the “gen-tie”) which links the Mt Signal 2 and Mt Signal 3 Projects to the CAISO

grid that will prevent the Mt Signal 2 and 3 Projects from delivering and selling their full output.

8 Under the governing CAISO tariff currently in effect, the project owner seeking an extension must be deemed “creditworthy” by CAISO to be eligible for an extension. The Debtors believe that the Buyer should be able to satisfy this requirement.

9 While it is theoretically possible to obtain new conditional use permits and building permits, it is not practical. The process to obtain the original conditional use permits and building permits took over 3 years, including a settlement of litigation.

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Because the Mt Signal 2 Project is not expected to be operational until more than a year after the

Mt Signal 3 Project, the Mt Signal 2 Project bears the risk that its output (and thus revenue-

generating ability) will be limited absent an amendment to the IID restriction or agreement with

8ME. The owner of the Mt Signal 2 Project also requires cooperation from 8ME to use various

portions of the gen-tie and corresponding transmission equipment. The Buyer has been working

closely with 8ME as business partners and proposed joint bidders for the Projects for

approximately nine months to resolve these issues and develop a strategy to obtain a suitable

amendment to the shared capacity limit.10

12. Fourth, development of the Mt Signal 2 Project is secured by

approximately $10 million in letters of credit constituting DIP Obligations under the Final DIP

Order that will be fully drawn if the project does not get built or the project’s power purchase

agreement is terminated. Accordingly, without a sale of the Mt Signal 2 Project to a

creditworthy owner such as the Buyer, recoveries to creditors in these Chapter 11 Cases may be

reduced by the amount of such letters of credit. In addition, pursuant to the terms of the PSA, the

Buyer has agreed to (i) assume responsibility for certain credit support obligations upon the

closing of the transaction as set forth in the PSA and (ii) replace the Project LCs (as defined in

the PSA) by the six month anniversary of closing the transaction. The extension of credit

support by the LC Lenders prior to then during the initial 180-day period after closing is subject,

10 8ME and D. E. Shaw Renewable Investments (“DESRI”), an affiliate of the Buyer, have been working together for more than 6 months to acquire certain assets from SunEdison. Indeed until recently they were participants in a joint bid to purchase a large portfolio of assets that included the Equity Interests. 8ME and DESRI expect to continue their cooperative efforts with respect to the Projects and other existing and potential renewable energy opportunities in the future, and in connection therewith, have entered into (or intend to enter into in the future) various contractual and commercial arrangements with respect to the Projects, including, but not limited to, arrangements to continue to work exclusively with each other on the Projects and to sell the respective Projects and related assets to each other in the future once the parties have completed certain development activities for each Project.

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among other things, to the consent of such lenders to the proposed terms thereof, and entry into

definitive documentation among the Seller, the Buyer, the DIP Administrative Agent (as defined

in the PSA) and the LC Issuers (as defined in the PSA) for the benefit of the LC Lenders (as

defined in the PSA).

13. Fifth, the Mt Signal 2 Project owes Imperial Valley Solar Holdings, LLC

(a third-party entity unaffiliated with either the Buyer or the Seller Parties) a substantial earn out

payment, though the governing documentation is unclear regarding the owed amounts and timing

for payment. The Buyer and its affiliates have made progress towards resolving these

ambiguities with Imperial Valley Solar Holdings, LLC over the last three months. Another

potential buyer would require additional time to negotiate terms with Imperial Valley Solar

Holdings, LLC, which may slow down progress towards closing an alternative transaction.

D. Prior Negotiations and Marketing

14. Prior to the Petition Date, in late 2015, the Debtors engaged in a

comprehensive marketing process to solicit interest in the Projects, which were marketed as a

single, indivisible asset. At least fifteen (15) qualified bidders of recognized standing in the solar

power industry executed non-disclosure agreements and performed diligence on the Projects, and

the Debtors ultimately received nine (9) non-binding bids on the Projects. Ultimately, on

December 29, 2015, SUNE and certain of its affiliates entered into a purchase and sale

agreement with certain affiliates of the Buyer who were holders of the Exchangeable Notes – i.e.

affiliates of the D.E. Shaw Group (“D.E. Shaw”), Madison Dearborn Capital Partners IV, L.P.,

and Northwestern University (collectively, the “D.E. Shaw Buyers”) – pursuant to which the

D.E. Shaw Buyers agreed, among other things, to take project transfers from SUNE in lieu of

cash to satisfy $215 million of principal owed under the Exchangeable Notes (such transaction,

the “D.E. Shaw Sale”). 9

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15. Among the projects to be transferred in the D.E. Shaw Sale were the Mt

Signal 2 Project and the Mt Signal 3 Project. The D.E. Shaw Buyers designated affiliates of D.E.

Shaw and 8ME as the purchasers for the Mt Signal 2 and Mt Signal 3 Project assets, with the

intention of forming a joint venture to continue the development of the Projects. However, prior

to consummation of the D. E. Shaw Sale, the Debtors commenced the Chapter 11 Cases.

E. Postpetition Marketing of the Mt Signal 2 Project

16. Following the Petition Date, the Debtors have marketed the Mt Signal 2

Project, along with other pending projects, to a wide variety of bidders, both as a standalone

asset and as a part of a broader portfolio of assets. The Debtors and their advisors have engaged

in discussions and provided diligence materials to 224 parties as part of such marketing process.

Upon consultation with their advisors, including Rothschild, Inc., the Debtors have received and

evaluated 26 bids for the Mt Signal 2 Project, including 4 parties who have bid on the Equity

Interests as a standalone sale transaction, and 22 parties who have bid on the Equity Interests as

part of a larger portfolio bid for a number of assets. Given Buyer’s familiarity with the Mt

Signal 2 Project, the price offered by the Buyer, the significant and imminent operational

challenges faced by the Debtors as outlined above (including, most notably, the fast-approaching

deadline to renew the interconnection rights), the likely inability of any other potential bidder to

timely close a transaction given these operational challenges, the Debtors concluded, in an

exercise of their business judgment, that the Buyer and the transaction represented in the PSA

constitute the highest or otherwise best value that the Debtors could achieve for the Mt Signal 2

Project.

RELIEF REQUESTED

17. By this Motion, the Debtors seek entry of a Sale Order, pursuant to

Bankruptcy Code sections 105(a), 363(b), 363(f), 541(a), and 363(m) and Bankruptcy Rules

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2002, 6004, and 9006, authorizing the Seller Parties to consummate the transaction set forth in

the PSA for the sale of the Equity Interests to the Buyer via a private sale free and clear of all

Liens on such Equity Interests.

18. However, if the Court is unwilling to enter the Private Sale Order, the

Debtors seek in the alternative entry of an Auction Sale Procedures Order, pursuant to

Bankruptcy Code sections 105(a), 363, 503, and 507, and Bankruptcy Rules 2002, 6004, 9007,

and 9014 which will authorize and approve, among other things: (i) the proposed expedited

bidding procedures (the “Bidding Procedures”) substantially in the form attached as Exhibit 1 to

the Auction Sale Procedures Order; (ii) the Buyer as the stalking horse bidder and the PSA as a

stalking horse purchase agreement, in each case with respect to the sale of the Equity Interests;

and (iii) certain customary bid protections, including payment of a break-up fee and expense

reimbursement (together, the “Bid Protections”). Additionally, at a subsequent hearing (the

“Sale Hearing”), the Debtors would seek entry of the Auction Sale Order that will approve the

sale of the Equity Interests to the Buyer or a successful overbidder (such overbidder, the

“Prevailing Purchaser”) following the completion (if applicable) of an auction (the “Auction”) as

set forth in the Bidding Procedures, and grant related relief.

19. For the reasons set forth herein, the Debtors submit that the relief

requested herein is in the best interest of the Debtors, their estates, creditors, stakeholders and

other parties in interest, and therefore, should be granted.

BASIS FOR RELIEF

20. The Debtors seek this Court’s approval and authorization to consummate

the transactions set forth in the PSA, pursuant to which the Buyer has committed to purchase the

Debtors’ equity interests in two different Subsidiaries which together own certain assets relating

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to the Mt Signal 2 Project, with a capacity of total 201 MW.11 A copy of the PSA is attached

hereto as Exhibit C. The Debtors strongly believe that the proposed Sale Transaction, structured

as a private sale, will generate the highest or otherwise best value for the Debtors and their

estates because, among other reasons, (a) the PSA provides that a private sale of the Equity

Interests to the Buyer will likely generate at least $10 million in additional proceeds for the

Debtors, as compared to an auction of the Equity Interests with the Buyer serving as stalking

horse bidder,12 (b) the various timing pressures described above may threaten the value and

viability of the Project during the pendency of an Auction process, and (c) the Buyers and their

estates will be spared the expense of additional marketing and sales processes in light of the

extensive marketing and solicitation process conducted to date. However, should this Court

deny the Debtors’ request for authorization to consummate the transactions set forth in the PSA

in a private sale, the Debtors seek authorization to approve Bid Protections for the Buyer and

Bidding Procedures pursuant to which the Debtors shall conduct an Auction for the Equity

Interests on an expedited basis.

A. Private Sale

21. Pursuant to the PSA, the gross purchase price for the Equity Interests is

$80 million (the “Private Sale Purchase Price”), subject to: (a) deductions for Company

Liabilities (as defined in the PSA) not paid and otherwise extinguished in full prior to Closing (as

11 It should be noted that the Debtors are seeking to sell the Equity Interests; therefore, the sale transactions do not contemplate the assumption and assignment of any contracts under section 365 of the Bankruptcy Code in connection with such sales.

12 Under the PSA, the gross purchase price is $10 million higher in a private sale than the gross purchase price in an auction/stalking horse bid sale transaction. Further, in a private sale neither the Debtors nor the estates will be obligated to pay the amounts owed to the Buyer (as a stalking horse) pursuant to the Bid Protections, which could potentially become due and owing upon a sale of the Equity Interests to a third-party bidder at a purchase price which is $9.5 million less than the gross purchase price proffered by the Buyer under the PSA in a private sale.

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defined in the PSA), and (b) a holdback amount of $2.5 million (the “Escrowed Funds”), to be

held in escrow and distributed pursuant to an escrow agreement and in accordance with the

indemnification provisions set forth in Article XI of the PSA. The Debtors estimate that the net

purchase price immediately available to the Debtors’ estates (excluding the Escrowed Funds)

will be approximately $70 million.

22. As discussed above and in the Martin Declaration, it is critical that the

Debtors move forward quickly to close a transaction for the Mt Signal 2 Project. The private

sale of the Equity Interests pursuant to the PSA represents the Debtors’ best opportunity to

achieve a certain and a timely closing to ensure that the Debtors are able to preserve and

maximize the value of the Equity Interests for the benefit of all of the Debtors’ stakeholders.

The PSA also provides a monetary incentive, in the form of a $10 million increased purchase

price, for the Debtors to move quickly towards a closing with the Buyer under a private sale

transaction structure. Furthermore, given the imminent expiration of the CAISO interconnection

rights, the consummation of a sale transaction would help ensure that the application to renew or

extend those rights is timely considered and granted by CAISO.

23. Given the exigencies of the situation as well as the robust pre-and post-

petition marketing processes described above, the Debtors are not seeking to further market the

Mt Signal 2 Project pending the Closing. The Buyer is intimately familiar with the Project, due

to the extensive diligence performed by Buyer and its affiliates during the prepetition marketing

process and the first few months of these Chapter 11 Cases. As further described in the Parkhill

Declaration, another party unfamiliar with the Project simply would not be able to conduct due

diligence, negotiate necessary project documents, and close the sale of the Project in time to

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prevent the estate from losing substantial value through the expiration of the interconnection

agreement.

B. Auction

24. As discussed above and in the Martin Declaration, the Debtors have a

sound business justification for selling the Equity Interests pursuant to a private sale. The

Debtors’ highest priority in the Chapter 11 Cases is to maximize the value of their estates for the

benefit of their creditors and other stakeholders, and the Debtors strongly believe that the $10

million increased purchase price associated with a private sale under the PSA and the avoidance

of the risks associated with delaying the closing of the sale for an Auction process that the

Debtors believe is unlikely to generate additional value provide that opportunity to maximize the

value of the Equity Interests. However, should the Court deny authority to consummate the Sale

Transaction pursuant to a private sale, the Debtors seek authorization to conduct a sale of the

Equity Interests pursuant to an Auction under the Bidding Procedures. To that end, the Debtors

believe that the PSA, secured after extensive negotiations with a sophisticated, well-informed

third party, serves as a compelling offer from the Buyer to serve as a stalking horse in an Auction

for the Equity Interests.

25. Entry into the PSA is a necessary first step toward maximizing the value

of the Debtors’ estates by (1) preserving the Debtors’ option to accept the highest or otherwise

best offer received while mitigating the risk of non-consummation and (2) attracting additional

offers from potential bidders who might not attend the Auction but for the existence of the

baseline offer provided by the Buyer as a stalking horse. In exchange for the stalking horse

arrangement, the Debtors seek to provide the Buyer with the Bid Protections (as defined below).

The Debtors, after consultation with their experienced advisors, have determined that these Bid

Protections constitute a reasonable expense in light of the benefits discussed herein. As further 14

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set forth in the Parkhill Declaration, but for these Bid Protections, the Debtors do not believe the

Buyer would have agreed to serve as a stalking horse in an open bidding process, which requires

the Buyer to incur significant upfront costs, absent deal certainty.

(a) The PSA as a Stalking Horse Agreement

26. By establishing a minimum acceptable bid, the PSA, together with the

Bidding Procedures, will promote competitive bidding (to the extent there is interest in the

Equity Interests above the Buyer’s offer provided in the PSA that did not materialize during the

Debtors’ extensive prepetition and postpetition marketing efforts) and will allow the Debtors to

maximize the value received through a sale of the Equity Interests in an Auction.

27. Under the PSA, the Seller Parties have agreed to sell the Equity Interests

for $70 million gross purchase price (the “Auction Purchase Price”), subject to: (a) deductions

for Company Liabilities (as defined in the PSA) not paid and otherwise extinguished in full prior

to Closing (as defined in the PSA), and (b) a holdback amount of $2.5 million (the “Escrowed

Funds”), to be held in escrow and distributed pursuant to an escrow agreement and in accordance

with the indemnification provisions set forth in Article XI of the PSA. As set forth herein, the

Seller Parties entered into the PSA after extensive marketing efforts, negotiations, and analysis,

and submit that the purchase price set forth in the PSA is fair and provides reasonable value in

exchange for the Equity Interests. The Debtors estimate that the net purchase price immediately

available to the Debtors’ estates (excluding the Escrowed Funds) under the PSA as a stalking

horse bid will be approximately $60 million.

28. Critical to the Buyer’s agreement to enter the PSA and serve as a stalking

horse thereunder, the Seller Parties have agreed to pay the Buyer, in accordance with Section

10.03 of the PSA: (a) reasonable and documented fees, costs, and expenses of any professionals

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(including financial advisors, outside legal counsel, accountants, experts, and consultants)

retained by or for the benefit of the Buyer or its Affiliates (as defined in the PSA) in connection

with, or otherwise related to, the acquisition of any of the Subsidiaries from the Seller Parties, up

to a maximum amount of $800,000 (the “Expense Reimbursement”) and (b) an amount equal to

three percent (3.4%) of the Auction Purchase Price (the “Break-up Fee,” and together with the

Expense Reimbursement, the “Bid Protections”), upon the occurrence of certain termination

events and consummation of an Alternative Transaction13 within six (6) months of the

occurrence of such trigger events, as set forth in the PSA.

29. The Debtors submit that the Bid Protections are fair and reasonable in

light of the circumstances. Moreover, the Bid Protections are actually necessary to preserve the

value of the estate because the Buyer would not agree to serve as a stalking horse bidder without

the Bid Protections. The Seller Parties’ ability to offer the Bid Protections enables them to

ensure the sale of the Equity Interests to the Buyer at a price they believe to be fair while, at the

same time, providing them with the potential of even greater benefit to the estates. Payment of

the Bid Protections will not diminish the Debtors’ estates. The Seller Parties do not intend to

terminate the PSA if to do so would incur an obligation to pay the Bid Protections, unless to

13 “Alternative Transaction” is defined in the PSA to mean any of the following: (i) a transaction or series of transactions pursuant to which one or more Seller Parties or their respective Affiliates, whether in accordance with the Bidding Procedures (if applicable) or otherwise, transfer, purport to transfer or would transfer, in each case, directly or indirectly, any of the Equity Interests or any other material assets (including Equity Securities) of any Company to any Person other than Buyer (or its assigns in accordance with Section 14.09 of the PSA), (ii) the filing of a plan of reorganization that does not effectuate the sale of the Equity Interests to Buyer (or its assigns in accordance with Section 14.09 of the PSA), or (iii) any direct or indirect acquisition, sale, liquidation, divestiture, public offering, recapitalization, business combination or reorganization, whether in one transaction or a series of transactions (including by merger, acquisition, business combination or other transaction), of or involving, in each case, directly or indirectly, any of the Equity Interests or material assets of any Company, other than the Transactions, in each case other than involving Buyer or an Affiliate of Buyer as purchaser. The first such transaction in a series of transactions described above shall be deemed the Alternative Transaction for purposes of this Agreement and, if applicable, the Bidding Procedures.

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accept an alternative bid, which bid must exceed the Auction Purchase Price offered by the

Buyer by an amount sufficient to pay the Bid Protections.

30. The PSA was negotiated, proposed, and entered into by the Seller Parties

and the Buyer without collusion, in good faith, and from arm’s-length bargaining positions. The

Seller Parties, the Buyer, and all other relevant parties were represented by experienced advisors

and attorneys.

(b) The Bidding Procedures14

31. The Bidding Procedures are designed to maximize value for the Debtors’

estates, while ensuring an orderly sale process within the timeline available to the Debtors under

the PSA, which is driven by the regulatory and other imminent development-related deadlines

described above. The Bidding Procedures describe, among other things, the procedures for

interested parties to access due diligence, the manner in which bidders become Qualified Bidders

(as defined in the Bidding Procedures) and bids become Qualified Bids (as defined in the

Bidding Procedures), the receipt and negotiation of bids received, the conduct of any Auction,

the selection and approval of any ultimately successful bidders, and the deadlines with respect to

the foregoing (the “Bidding Process”). The Debtors believe that the Bidding Process affords the

Debtors a sufficient opportunity to maximize the value of a sale of the Equity Interests to their

estates prior to the impending development deadlines in the event that the Court is unwilling to

enter the Private Sale Order.

14 The following summary is qualified in its entirety by reference to the provisions of the Bidding Procedures, a full copy of which are included as part of the proposed Bidding Procedures Order attached hereto as Exhibit B. In the event of any inconsistencies between the provisions of the Bidding Procedures and the terms herein, the terms of the Bidding Procedures shall govern. Unless otherwise defined in the summary set forth in the accompanying text, capitalized terms shall have the meanings ascribed to them in the Bidding Procedures.

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32. The Bidding Procedures establish the following key dates for the Bidding

Process, all of which are designed to have a sale of the Equity Interests consummated prior to the

passage of the August 22, 2016 operational deadlines outlined above:

 Bid Deadline: To participate in the Bidding Process, each potential bidder, other than the Stalking Horse Buyer, must deliver to the notice parties enumerated in the Bidding Procedures a written offer, so as to be received by no later than August 4, 2016 at 5:00 p.m. (EST) (the “Bid Deadline”).

 Auction: In the event that the Debtors in consultation with the Committee determine that they have received more than one Qualified Bid, the Debtors are authorized to conduct an Auction. The Auction shall be held on August 9, 2016 at 10:00 a.m. (EST), at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036, or such other location and time as shall be timely communicated to all entities entitled to attend the Auction.

 Sale Hearing: The hearing to approve the sale of the Equity Interests to the Prevailing Purchaser is scheduled to take place on August 11, 2016 at 10:00 a.m. (EST) before the Honorable Stuart M. Bernstein, at the United States Bankruptcy Court for the Southern District of New York, One Bowling Green, New York, NY 10004, or at such times thereafter as counsel may be heard.

33. Key terms of the Bidding Procedures are highlighted as follows:

 Access to Material Information: Prior to the Bid Deadline, any qualified party that demonstrates, in the Debtors’ judgment, in consultation with the Committee, that such party has the ability (including, without limitation, from a financial and, to the extent applicable, regulatory approval perspective) to close on the Equity Interests following the Bankruptcy Court’s approval of such party’s or parties’ Qualified Bid(s) as the Prevailing Bid, may be granted access to information that has been or will be provided to the other bidders subject to the Bidding Procedures upon execution of a confidentiality agreement, in form and substance satisfactory to the Debtors.

 Determination of Qualified Bidder Status: To participate in the bidding process to acquire the Equity Interests each potential bidder must be deemed a Qualified Bidder. A Qualified Bidder must submit, to the parties identified in the Bidding Procedure, a binding written offer as to be received by the Bid Deadline that:

 states that such bidder offers to purchase the Equity Interests;

 provides evidence satisfactory to the Debtors that such bidder is reasonably likely to satisfy all customary conditions and other requirements for performing under the existing power purchase agreement with respect to the project owned by the Subsidiaries;

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 includes executed transaction documents, including a definitive purchase agreement and all schedules and exhibits thereto (substantially in the same detail as those attached to the Stalking Horse Agreement filed as Exhibit C to the Motion), signed by an authorized representative of such bidder, pursuant to which such bidder proposes to effectuate a transaction that qualifies as a Qualifying Sale (the “Bidder Agreement”), and such Bidder Agreement shall also include a blacklined copy of the Bidder Agreement marked against the Stalking Horse Agreement to show all changes requested by such bidder (including those related to the consideration to be paid for the Acquired Equity Interests and the closing conditions in respect of such transaction);

 proposes a purchase price (which consideration may consist of cash or otherwise if permitted by the Debtors in their sole discretion) that is a higher and/or better offer for the Acquired Equity Interests (as compared to the offer of the Stalking Horse Buyer reflected in the Stalking Horse Agreement); provided, however, that an offer shall not be considered a higher and/or better offer unless such offer provides for a purchase price to be paid at the consummation of the transaction that is equal to or greater than: (i) the Purchase Price under, and as defined in, the Stalking Horse Agreement (the “Initial Stalking Horse Purchase Price”), plus (ii) the aggregate face amount of all Company Liabilities under, and as defined in, the Stalking Horse Agreement, plus (iii) a break-up fee equal to $2,400,000 (representing 3.4% of the sum of the immediately preceding clause (i)) (the “Break-Up Fee”), plus (iv) the aggregate amount of the Expense Reimbursement under, and as defined in, the Stalking Horse Agreement, which amount shall not exceed $800,000 (collectively, the “Reimbursable Expenses”), provided, however, that any portion of the offered purchase price not to be paid in cash at closing may be appropriately discounted in the Debtors reasonable discretion;

 is irrevocable until and unless the Debtors accept a higher or otherwise better Qualified Bid and the bidder is not selected as a Back-Up Bidder;

 does not request any expense reimbursement, break-up fee, “topping,” termination, contribution, or other similar fee or payment;

 (i) provides for replacement or back-to-back letters of credit or posting of adequate cash collateral required for development of the project owned by the Subsidiaries, or (ii) obtains written extensions of the currently outstanding letters of credit securing development of the project owned by the Subsidiaries from the existing providers thereof;

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 contains such financial and other information that demonstrates to the reasonable satisfaction of the Debtors the bidder’s financial and other capabilities to consummate the transactions contemplated by the Bidder Agreement in accordance with these Bidding Procedures and the Bidding Procedures Order, which information shall be satisfactory to the Debtors (in consultation with the Committee), including (but not limited to) contact names and numbers for verification of financing sources;

 contains such information requested by the Debtors regarding the identity of the entity or entities that will be bidding for the Acquired Equity Interests or otherwise participating in such bid, and the complete terms of any such participation, which information is satisfactory to the Debtors (in consultation with the Committee);

 includes evidence of authorization and approval from the bidder’s board of directors (or comparable governing body) with respect to the submission, execution, delivery, and closing of the Bidder Agreement, and financing agreements (or binding commitment letters) and any other ancillary documents or agreements, which evidence is satisfactory to the Debtors;

 includes covenants and conditions commercially reasonable for a transaction of this type and acceptable to the Debtors (in consultation with the Committee and the DIP Lenders), but under no circumstances shall a bid be conditioned on the obtaining, or the sufficiency of, financing or any internal or credit committee approval, syndication requirements, or on the outcome or review of due diligence, but may be subject to the accuracy at the closing of specified representations and warranties or the satisfaction at the closing of specified conditions, all of such shall be specifically set forth in the Bidder Agreement; and

 is accompanied by a good faith cash deposit in an amount no less than 10% of the total purchase price set forth in the Bidder Agreement, which shall be deposited in an escrow account to be established by the Debtors subject to a customary escrow agreement satisfactory to the Debtors, and which shall be credited against the purchase price paid by the bidder if such bidder is the Prevailing Purchaser (as defined below); provided, however, that, for the avoidance of doubt, the Stalking Horse Buyer shall also be required to submit a cash deposit as provided in the Stalking Horse Agreement.

 Auction and Auction Procedures: At the Auction, Qualified Bidders may each present Overbids (as defined in the Bidding Procedures); provided, however, such Overbids shall be made in increments valued at not less than $500,000 greater than the Auction Baseline Bid or then highest or otherwise best Overbid, as applicable. The Auction shall continue until the Debtors determine, in

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consultation with the Committee and the DIP Lenders, that a Qualified Bid or an Overbid, as applicable, is the highest or otherwise best offer from among the Qualified Bids (including Overbids and the last bid of the Stalking Horse Buyer) (the “Prevailing Bid,” and the party or parties that submitted such Prevailing Bid, the “Prevailing Purchaser”), which determination shall be subject to Bankruptcy Court approval. In selecting the Prevailing Bid, the Debtors, in consultation with the Committee and the DIP Lenders, may consider all factors, including the amount of the purchase price, the form and total amount of consideration being offered, the likelihood of each Qualified Bidder’s ability to close a transaction and the timing thereof, the form and substance of the purchase agreement requested by each Qualified Bidder, and the net benefit to the Debtors’ estates. The party with the Qualified Bid or Overbid that is next highest or otherwise best to the Prevailing Bid at the Auction, as determined by the Debtors in consultation with the Committee and the DIP Lenders, shall be required to serve as a back-up bidder (a “Back-Up Bid” and a “Back-Up Bidder,” respectively) and keep such bid open and irrevocable until 11:59 p.m. (EST) on the date that is the earlier of (a) forty-five (45) days after the date of the Sale Hearing, and (b) the closing of the sale transaction with the Prevailing Purchaser. Notwithstanding anything to the contrary herein, the Stalking Horse Buyer shall have the right to determine in its sole discretion whether it will serve as the Back- Up Bidder and on what terms, if any. If the Stalking Horse Buyer does not serve as the Back-Up Bidder, the Debtors, in consultation with the Committee and the DIP Lenders, shall have the right to select the next highest or otherwise best bidder after the Prevailing Bidder at the Auction (other than the Stalking Horse Buyer) as the Back-Up Bidder. If the Prevailing Purchaser fails to consummate a sale in accordance with the Prevailing Bid because of a breach or failure to perform on the part of such Prevailing Purchaser, the Debtors (in consultation with the Committee) are authorized to deem a Back-Up Bidder (or the Stalking Horse Buyer, if the Stalking Horse Agreement, as may be modified by agreement of the Seller and Buyer, then constitutes the highest or otherwise best bid) to be the new “Prevailing Purchaser” and such party’s Back-Up Bid (or the aforementioned Stalking Horse Agreement bid, if applicable) to be the “Prevailing Bid,” and the Debtors are authorized, but not required, to consummate a sale with such Back- Up Bidder in accordance with such Back-Up Bid (or with the Stalking Horse Buyer in accordance with such Stalking Horse Agreement, as applicable) without further order of the Bankruptcy Court.

 Bid Protections: In the event that the Seller Parties consummate an Alternative Transaction pursuant to the PSA, the Stalking Horse Buyer is entitled to certain Bid Protections. More specifically, Stalking Horse Buyer is entitled to recover the Break-up Fee, which is equal to 3.4% of the Auction Purchase Price set forth in the Stalking Horse Agreement, and up to $800,000 in reasonable and documented fees, costs, and expenses of any professionals (including financial advisors, outside legal counsel, accountants, experts, and consultants) retained by or for the benefit of the Buyer or its Affiliates (as defined in the PSA) in

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connection with, or otherwise related to, the acquisition of any of the Subsidiaries from the Seller Parties.

 Reservation of Rights: Notwithstanding anything to the contrary in the Bidding Procedures, the Debtors reserve their rights, as they may determine to be in the best interest of their estates and in the exercise of their fiduciary obligations after consultation with the Committee, to: (a) modify the Bidding Procedures or impose, at or prior to the Auction, different and/or additional terms and conditions on the sale of the Acquired Equity Interests, (b) announce at the Auction additional procedural rules that are reasonable under the circumstances for conducting the Auction, (c) determine which bidders are Qualified Bidders, (d) determine which bids qualify as Qualified Bids and Overbids, (e) determine which Qualified Bid is the highest or otherwise best proposal and which is the next highest or otherwise best proposal, (f) determine whether to accept any Qualified Bid or Overbid (other than the Stalking Horse Agreement and any Overbid made by the Stalking Horse Buyer), (g) reject any bid that is (i) inadequate or insufficient, (ii) not in conformity with the requirements of the Bidding Procedures, the Bidding Procedures Order or the requirements of the Bankruptcy Code, or (iii) contrary to the best interests of the Debtors and their estates, and (h) extend the deadlines set forth herein; provided, however, that (i) nothing in these Bidding Procedures shall, or shall be construed to, in any way amend, impair, alter or otherwise modify the terms of the Stalking Horse Agreement (as may be modified by any Overbid) or the Stalking Horse Buyer’s rights thereunder; and (ii) without the prior written consent of the Stalking Horse Buyer, the Debtors shall not modify, or waive compliance (or accept non- compliance) with, any of the following: (A) subsections (c), (d) or (l) of the requirements of a Qualified Bid specified herein; (B) subsection (b) of the requirements of an Overbid specified herein; (C) the right of the Stalking Horse Buyer to credit bid up to the full amount of the Reimbursable Expenses and Break-Up Fee; (D) the right of the Stalking Horse Buyer to determine in its sole discretion whether it will serve as the Back-Up Bidder and on what terms; or (E) this clause (ii) or the immediately preceding clause (i).

(c) Notice Procedures

34. Post Auction Notice. As soon as possible after the conclusion of the

Auction, if any, the Debtors shall file, but not serve, a notice identifying any Successful Bidder

and the date and time of the Sale Hearing (the “Post Auction Notice”).

35. The Debtors submit that the relief requested herein is desirable and in the

best interests of the Debtors’ estates, their creditors, and other parties in interest in the Chapter

11 Cases.

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EXTRAORDINARY PROVISIONS

36. As required by the Sale Guidelines, this Motion contains the following

provisions:15

A. Private Sale

37. The proposed Sale Order, and the PSA contain the following items that

may be considered Extraordinary Provisions under the Sale Guidelines:

(a) Private Sale/No Competitive Bidding. As described above, in the

Martin Declaration, and in the Parkhill Declaration, the Debtors believe that an expedited private

sale of the Equity Interests to the Buyer provides the best opportunity to maximize value of the

Equity Interests, particularly given the extensive marketing process and competitive bidding

process completed prepetition, the additional marketing process and continued solicitation of

offers postpetition, and the $10 million higher purchase price offered by the Buyer in the context

of a private sale. Further, due to the near-term risk of the expiration of the interconnection

agreements in the absence of an imminent sale, the Debtors believe that the delay resulting from

an auction or bidding process could result in significant value degradation and the failure to

achieve a higher and better offer for the Equity Interests from any other potential purchaser.

(b) Use of Proceeds. The Private Sale Order contains a provision

specifying that the net sale proceeds from the Sale Transaction shall be allocated as follows

(subject to release of the Escrowed Funds, in accordance with the PSA)16: (x) $50 million of (i)

15 The following list of possible Extraordinary Provisions, as such term is defined in the Sale Guidelines, is not intended to be an admission that any of these items are unusual relief in a sale of significant assets of a large chapter 11 debtor pursuant to Bankruptcy Code section 363. Extraordinary Provisions that are not applicable here have not been included in the following list.

16 A similar provision regarding release of the Bid Protection funds, also in accordance with the PSA, would appear in any Auction Sale Order.

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the Net Asset Sale Proceeds (as defined in the DIP Credit Agreement) obtained pursuant to the

Sale Transaction minus (ii) the Net Asset Sale Proceeds received pursuant to the sale transaction

proposed in respect of the MS3 Project (as defined in the PSA), to immediately repay amounts

currently outstanding in respect of any Tranche A-2 Roll-Up Loans (as defined in the DIP Credit

Agreement) and (y) the remaining amount of Net Asset Sale Proceeds from the Sale Transaction

shall be deposited into the blocked account associated with the DIP Facility for use in

accordance with the applicable DIP Budget. The Equity Interests are part of the collateral

package granted to the DIP Lenders pursuant to the DIP financing previously approved by this

Court, and the Sale Order provision represents an allocation of the net sale proceeds which was

negotiated by and among the Debtors and the DIP Lenders, and remains subject to final approval

and consent by the DIP Lenders pursuant to the terms and conditions set forth in the DIP Credit

Agreement and related documents.

(c) Requested Findings as to Successor Liability. The Private Sale

Order contains provisions purporting to limit the successor liability of the Buyer with respect to

liabilities arising from the operation of the Debtors’ businesses (other than those businesses

conducted by those Subsidiaries which are being sold in connection with the Project). The Buyer

is not purchasing all or substantially all of the assets of any of the Debtors, nor is the Buyer

seeking to avoid successor liability for the businesses conducted by the Subsidiaries in

connection with the Project. Accordingly, the Debtors believe it is appropriate to grant the

limited findings with respect to successor liability set forth in the Private Sale Order.

(d) Relief from Bankruptcy Rule 6004(h). The Debtors seek relief from

the fourteen day stay imposed by Bankruptcy Rule 6004(h). As described in more detail herein

and in the Martin Declaration, the Debtors believe that any delay in consummating the sale of the

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Equity Interests pursuant to the terms of the PSA would result in significant value degradation

and the inability to maximize the value of the Equity Interests.

(e) No Fraudulent Transfer. The Debtors seek findings that the sale of

the Equity Interests do not constitute fraudulent transfers pursuant to applicable law. The

Debtors submit that such relief is necessary and appropriate in order to provide the Buyer with

appropriate protections with respect to the continuing operations of the Project.

B. Auction

38. In addition to those extraordinary provisions highlighted in paragraph 37

above, the proposed Bidding Procedures Order and the proposed Bidding Procedures contain the

following items that may be considered Extraordinary Provisions under the Sale Guidelines in

the event that the Court is unwilling to enter the Private Sale Order:

(a) Purchase Price Adjustment. As set forth in the PSA and described

above, in the event that the Court does not approve the requested private sale of the Equity

Interests, the gross purchase price offered by the Buyer in the context of a stalking horse bid will

be $70 million rather than $80 million, a decrease of $10 million.

(b) Good Faith Deposit. All Qualified Bidders are required to submit a

good faith deposit in the amount of no less than 10% of the total purchase price set forth in the

Bidder Agreement. The Buyer, in its role as stalking horse bidder, is not required to submit a

deposit, pursuant to the PSA.

(c) Bid Protections. The Seller Parties have agreed to grant the Buyer,

in connection with the Buyer’s service as a stalking horse bidder: (i) reasonable and documented

fees, costs, and expenses of any professionals (including financial advisors, outside legal

counsel, accountants, experts, and consultants) retained by or for the benefit of the Buyer or its

Affiliates (as defined in the PSA) in connection with, or otherwise related to, the acquisition of 25

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any of the Subsidiaries from the Seller Parties, up to a maximum amount of $800,000, and (ii) an

amount equal to three percent (3.4%) of the Auction Purchase Price (i.e., $2.4 million), upon the

termination of the PSA and consummation of an Alternative Transaction within six (6) months of

the occurrence of certain trigger events, as set forth in section 10.03 of the PSA. Such trigger

events include: (1) termination by any party if the Buyer is not the Prevailing Purchaser

following an Auction, (2) termination by any party if the Debtors or the Subsidiaries enter into

definitive documentation or accept a bid for an Alternative Transaction, (3) termination by any

party if the Bankruptcy Court enters an order approving an Alternative Transaction, or (4)

termination by the Buyer if the Seller Parties breach any representation, warranty, covenant, or

agreement contained in the PSA and such breach would result in failure of a closing condition

and is uncured or incapable of being cured pursuant to the PSA (so long as Buyer is not in

material breach of its obligation under the PSA at the time of such termination). Any Bid

Protections incurred pursuant to the terms of the PSA shall be payable first from the proceeds of

any Alternative Transaction free and clear of all prepetition and postpetition Liens.

(d) Limited Exclusivity. The Stalking Horse Agreement contains a

limited exclusivity provision to protect the Stalking Horse Buyer until the Bid Protections are

approved by the Bankruptcy Court. Given the extensive prepetition and postpetition marketing

processes already completed, the Debtors respectfully submit that the limited period for the

exclusivity provision correctly balances protecting the Buyer for setting a floor for the purchase

price for the Equity Interests while still permitting the Debtors to conduct the Bidding Process if

the Court is unwilling to enter the Private Sale Order. As set forth in the Parkhill Declaration,

the limited exclusivity provision is necessary to obtain a sale, and given the extensive marketing

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performed to date, will not chill the receipt of higher or better offers in the context of the Bidding

Process.17

(e) Deadlines that Effectively Limit Notice. As set forth in the PSA, in

the event the Court does not enter the Private Sale Order, the Sale Transaction may be terminated

if (i) the Bidding Procedures Order has not been entered on or before the Trigger Date18, (ii) the

Auction, if required pursuant to the Bidding Procedures and the Auction Sale Procedures Order,

has not been held on or before August 9, 2016, (iii) the Auction Sale Order has not been entered

on or before August 11, 2016; provided, however, the deadlines for entry of the Auction Sale

Procedures Order and the Auction Sale Order set forth in this paragraph shall be automatically

extended by up to a maximum of five (5) Business Days in the aggregate for both such deadlines

solely to the extent the Bankruptcy Court does not have availability to conduct the hearing to

approve the Sale Transaction as a private sale or the Sale Hearing, as applicable, prior to such

deadlines. See PSA, § 10.01(a)(vii). Moreover, as is common for auctions in chapter 11 cases,

the identity of the Prevailing Purchaser will not be known until shortly before the Sale Hearing.

APPLICABLE AUTHORITY

I. THE COURT SHOULD AUTHORIZE AND APPROVE THE PRIVATE SALE OF THE EQUITY INTERESTS PURSUANT TO THE PSA.

A. The Sale of the Project Is Within the Debtors’ Sound Business Judgment.

39. Bankruptcy Code section 363(b)(1) provides, in relevant part, that “[t]he

trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of

17 The Debtors are not seeking approval of the limited exclusivity provision, but, instead are addressing it here for transparency. Indeed, assuming this Court enters the Bidding Procedures Order that will end the limited exclusivity period.

18 “Trigger Date,” as defined in the PSA, means the earlier of (i) July 22, 2016 and (ii) 5:00 p.m. Eastern time on the first business day immediately following the hearing conducted by this Court to consider entry of the Private Sale Order or Auction Sale Procedures Order.

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business, property of the estate.” 11 U.S.C. § 363(b)(1). The use, sale, or lease of property of the

estate, other than in the ordinary course of business, is authorized when there is an “articulated

business justification” for the action to be taken. See Fulton State Bank v. Schipper (In re

Schipper), 933 F.2d 513, 515 (7th Cir. 1991) (citation omitted). When a valid business

justification exists, the law vests the debtor’s decision to use property out of the ordinary course

of business with a strong presumption that “‘in making a business decision the directors of a

corporation acted on an informed basis, in good faith and in the honest belief that the action

taken was in the best interests of the company.’” See Official Comm. of Subordinated

Bondholders v. Integrated Res., Inc. (In re Integrated Res., Inc.), 147 B.R. 650, 656 (S.D.N.Y.

1992) (citation omitted).

40. Furthermore, Bankruptcy Code 363(b) applies to private sales

consummated in the absence of competitive bidding. See, e.g., In re Wieboldt Stores, Inc., 92

B.R. 309, 312 (N.D. Ill. 1988) (“Section 363(b) is not limited to sales involving competitive

bidding. Bankruptcy Rule 6004, which sets forth procedures for Section 363(b) transfers,

expressly provides for private sales.”). In this District, the Sale Guidelines require that, if a

debtor moves to sell assets in the absence of an auction or if the debtor has not otherwise sought

higher or better offers, the movant must state and explain why such sale is likely to maximize the

sale price. Sale Guidelines, 1.D.3.

41. The Debtors have articulated a clear business justification for entering into

the sale of the Project. As set forth in the Martin Declaration, the sale to the Buyer provides the

Debtors with a path towards maximizing the value of the Mt Signal 2 Project on a timeline which

accommodates the expedited need to obtain the interconnection extension from CAISO, among

other reasons. The Buyer is intimately familiar with the Project and the various operational

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complexities which require immediate action on the part of the Buyer. It is well within the

Debtors’ business judgment to determine that the sale of the Project to the Buyer is the proper

course of action likely to maximize value for the Debtors and their estates under the

circumstances.

42. Moreover, Bankruptcy Rule 6004(f)(1) explicitly permits a debtor to enter

into transactions outside of the ordinary course of business through private sales. As discussed

above, the sale to the Buyer provides the Debtors with the best opportunity to maximize the sale

price of the Project by generating at least $10 million in additional proceeds for the Debtors over

the stalking horse bid price, and to prevent value loss associated with time delay, including

because of the potential loss of the interconnection rights associated with the Project. A sale to

other parties would likely result in substantial delay and added costs, and is unlikely to achieve

closing on the expedited timetable needed to timely obtain the CAISO interconnection renewal,

among other things. Courts in this District have approved private sales in accordance with the

Sale Guidelines where the benefit of the private sale outweighs the delay and expense of

conducting a public auction. See In re Hawker Beechcraft, Inc., Case No. 12-11873 (SMB)

(Bankr. S.D.N.Y. Nov. 29, 2012) [Docket No. 857] (authorizing private sale under Rule

6004(f)(1) where public auction would require estate to incur substantial additional costs, but

would result in no additional value to the estate); In re Dewey & Leboeuf LLP, 2012 Bankr.

LEXIS 5116 at *17-18 (Bankr. S.D.N.Y. Nov. 1, 2012) (finding a good business reason to sell

assets pursuant to a private sale where a public sale would be more costly); In re Chemtura

Corp., Case No. 09-11233 (REG), 2010 Bankr. LEXIS 5349 (Bankr. S.D.N.Y. July 23, 2010)

(approving private sale of debtor’s business pursuant to an asset purchase agreement where prior

purchase right would stifle third party interest in the business and purchaser was uniquely

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positioned to operate the business); In re Sonix Med. Res. Inc., Case No. 09-77781 (DTE), 2010

Bankr. LEXIS 5471 (Bankr. E.D.N.Y. March 19, 2010) (authorizing private sale of debtors’

assets and approving asset purchase agreement where there was a substantial risk that value of

the assets would deteriorate if the sale was not consummated and the purchase agreement was

the best opportunity to realize the value of the assets on a going-concern basis and avoid decline

and devaluation of the debtors’ business); see also In re Wieboldt Stores, Inc., 92 B.R. 309, 312

(N.D. Ill. 1988) (“Section 363(b) is not limited to sales involving competitive bidding.

Bankruptcy Rule 6004, which sets forth procedures for Section 363(b) transfers, expressly

provides for private sales.”); Palermo v. Pritam Realty, Inc. (In re Pritam Reality, Inc.), 233 B.R.

619 (D.P.R. 1999) (upholding bankruptcy court order approving private sale by debtor).

Furthermore, this Court has also previously approved private sales upon a showing by the

Debtors that such sale would maximize value to the Debtors and their estates. Order Pursuant to

Bankruptcy Code Sections 105(a), 363(b), 363(f), 363(m), 1107, and 1008 and Bankruptcy Rules

2002, 6004, 9006, and 9019 Authorizing and Approving Entry Into Commitment Letter for

Certain Project Sales and Granting Releases in Connection Therewith [Docket No. 444].

Completing the sale of the Mt Signal 2 Project to the Buyer via a private sale upon the terms set

forth in the Private Sale Order and in the PSA is an exercise of the Debtors’ sound business

judgment, is permitted by the Bankruptcy Code and Bankruptcy Rules, and is in the best interests

of the Debtors’ estates and creditors.

B. The Proposed Sale Transaction Satisfies The Requirements Of Bankruptcy Code Section 363(f) For A Sale Free And Clear.

43. Bankruptcy Code section 363(f) permits a debtor to sell property free and

clear of another party’s interest in the property if: (a) applicable non-bankruptcy law permits

such a free and clear sale; (b) the holder of the interest consents; (c) the interest is a lien and the

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sale price of the property exceeds the value of all liens on the property; (d) the interest is in bona

fide dispute; or (e) the holder of the interest could be compelled in a legal or equitable

proceeding to accept a monetary satisfaction of its interest. 11 U.S.C. § 363(f). Because section

363(f) is stated in the disjunctive, satisfaction of any one of its five requirements will suffice to

warrant approval of the proposed sale. See Scherer v. Fed. Nat’l Mortg. Ass’n (In re Terrace

Chalet Apts., Ltd.), 159 B.R. 821, 825 (N.D. Ill. 1993) (sale extinguishes liens under section

363(f) as long as one of the five specified exceptions applies).

44. The sale of the Equity Interests to the Buyer pursuant to the terms set forth

in the PSA is appropriate under section 363(f) of the Bankruptcy Code. The Debtors propose to

sell the Equity Interests in a commercially reasonable manner and expect that the value of the

proceeds from such sales or transfers will fairly reflect the value of the property sold. To the

extent that any lien holder does not object to the proposed sale, that entity should be deemed to

have consented to the relief sought herein, thereby satisfying Bankruptcy Code section 363(f)(2).

Any entity holding liens, claims, encumbrances and other interests on the Equity Interests will

receive notice of this Motion and the sale hearing. Accordingly, all parties in interest will be

given sufficient opportunity to object to the relief requested herein. Failure to object should be

deemed consent. See Futuresource LLC v. Reuters Ltd., 312 F.3d 281, 285-86 (7th Cir. 2002)

(“It is true that the Bankruptcy Code limits the conditions under which an interest can be

extinguished by a bankruptcy sale, but one of those conditions is the consent of the interest

holder, and lack of objection (provided of course there is notice) counts as consent. It could not

be otherwise; transaction costs would be prohibitive if everyone who might have an interest in

the bankrupt’s assets had to execute a formal consent before they could be sold.”) (internal

citations omitted)

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45. The Debtors further propose that any party with an interest in the Equity

Interests pursuant to this Motion shall have a corresponding interest in the proceeds of such sale

(with all of the Debtors’ claims, defenses and objections with respect to the amount, validity, or

priority of each such interest and the underlying liabilities expressly preserved). See MacArthur

Co. v. Johns-Manville Corp., 837 F.2d 89, 94 (2d Cir. 1988) (“It has long been recognized that

when a debtor’s assets are disposed of free and clear of third-party interests, the third party is

adequately protected if his interest is assertable against the proceeds of the disposition.”)

Therefore, any lien holders are adequately protected and could be compelled to accept a

monetary satisfaction of their interest. As such, the requirements of section 363(f) of the

Bankruptcy Code would be satisfied for the Equity Interests sale free and clear of all Liens.

46. Courts have consistently held that a buyer of a debtor’s assets pursuant to

a Bankruptcy Code section 363 sale takes free and clear from successor liability relating to the

debtor’s business. See, e.g., In re General Motors Corp., 407 B.R. 463, 505-06 (Bankr. S.D.N.Y.

2009) (holding that “the law in this Circuit and District is clear; the Court will permit GM’s

assets to pass to the purchaser free and clear of successor liability claims, and in that connection,

will issue the requested findings and associated injunction”); In re Chrysler LLC, 405 B.R. 84,

111 (Bankr. S.D.N.Y. 2009) (“[I]n personam claims, including any potential state successor or

transferee liability claims against New Chrysler, as well as in rem interests, are encompassed by

section 363(f) and are therefore extinguished by the Sale Transaction.”); Contrarian Funds, LLC

v. Westpoint Stevens, Inc. (In re Westpoint Stevens, Inc.), 333 B.R. 30, 50 (S.D.N.Y. 2005)

(“Where . . . a sale is to be free and clear of existing liens and interests other than those of the

estate, one or more of the criteria specified in section 363(f) of the statute must also be met.”),

rev’d in part on other grounds, 600 F.3d 231 (2d Cir. 2010). Here, the Buyer is not seeking to

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avoid successor liability for businesses conducted by IVS2 or 88FT in relation to the Mt Signal 2

Project; instead, the Buyer is only seeking to take free and clear of any successor liability

relating to the Debtors’ other businesses or projects. This exemption is appropriately tailored

given the limited scope of the PSA.

47. For these reasons, the Buyer should not be liable under any theory of

successor liability relating to the Debtors’ businesses other than those businesses conducted by

the Subsidiaries, but should hold the Equity Interests free and clear of Liens and successor

liability.

C. The Buyer Should Be Entitled To The Protections Of Bankruptcy Code Section 363(m).

48. Bankruptcy Code section 363(m) provides in relevant part that the reversal

or modification on appeal of an authorization under section 363(b) of a sale or lease of property

does not affect the validity of a sale or lease under such authorization to a purchaser who bought

or leased such property in good faith, whether or not such entity knew of the pendency of the

appeal, unless such authorization and such sale or lease were stayed pending appeal. See 11

U.S.C. § 363(m). “Although the Bankruptcy Code does not define the meaning of ‘good-faith

purchaser,’ most courts have adopted a traditional equitable definition: ‘one who purchases the

assets for value, in good faith and without notice of adverse claims.’” Licensing by Paolo, Inc. v.

Sinatra (In re Gucci), 126 F.3d 380, 390 (2d Cir. 1997) (citation omitted). The Third Circuit has

held that: “‘The requirement that a purchaser act in good faith . . . speaks to the integrity of

[purchaser’s] conduct in the course of the sale proceedings.’” In re Abbotts Dairies of Pa., Inc.,

788 F.2d 143, 147 (3d Cir. 1986) (citation omitted). Typically, the misconduct that would

destroy a purchaser’s good faith status involves “fraud, collusion between the purchaser and

other bidders or the trustee, or an attempt to take grossly unfair advantage of other bidders.”

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Hoese Corp. v. Vetter Corp. (In re Vetter Corp.), 724 F.2d 52, 56 (7th Cir. 1983) (quoting In re

Rock Indus. Mach. Corp., 572 F.2d 1195, 1198 (7th Cir. 1978) (interpreting Bankruptcy Rule

805, the precursor to section 363(m)). In addition, section 363(m) protection applies in the

context of private sales. See In re Wieboldt Stores, Inc., 92 B.R. at 312. The Debtors submit

that the Equity Interests sales are arm’s-length transactions entitled to the protections of

Bankruptcy Code section 363(m) negotiated by sophisticated parties with their own legal and

other advisors.

D. The Buyer Should be Entitled to Findings that it Did Not Violate Bankruptcy Code Section 363(n).

49. Section 363(n) provides in relevant part that a trustee may avoid a sale

under Bankruptcy Code section 363 “if the sale price was controlled by an agreement among

potential bidders at such sale, or may recover from a party to such agreement any amount by

which the value of the property sold exceeds the price at which such sale was consummated, and

may recovery any costs, attorneys’ fees, or expenses incurred in avoiding such sale or recovering

such amount.” 11 U.S.C. § 363(n); see also In re New York Trap Rock Corp., 42 F.3d 747, 752

(2d Cir. 1994) (holding potential bidders must agree to influence the sale price to come within

the ambit of the prohibition of section 363(n)); In re GSC, Inc., 453 B.R. 132, 182 (Bankr.

S.D.N.Y. 2011) (finding no violation of 363(n) where bidders acted in good faith and bidding

procedures and modifications were fully disclosed and consented to); In re Borders Group, Inc.,

2011 WL 5520261 at *4 (Bankr. S.D.N.Y. Sept. 27, 2011) (no violation of 363(n) where the

“Debtors and their management actively participated in the sale process and acted in good faith”

and “sale price of the Transaction was not controlled by an agreement with any bidder”); In re

Nightlife Enterprises, L.P., No. 10-10956(ALG), 2010 WL 5265128, at *3 (Bankr. S.D.N.Y. July

26, 2010) (same); In re Mesa Air Grp., Inc., No. 10-10018(MG), 2010 WL 5264066, at *2

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(Bankr. S.D.N.Y. June 24, 2010) (same). Rather, the Debtors submit that the purchase price

proposed to be paid by the Buyer in the PSA was agreed upon by the Debtors after extensive

arms-length negotiations spanning several months and extensive pre-petition and post-petition

marketing processes in which the Debtors received many third-party expressions of interest.

50. As noted above, the Buyer and 8ME have been working closely together

for the past six months as business partners and proposed joint bidders on the acquisition and

development of the Mt Signal 2 and Mt Signal 3 Projects, and in connection therewith, have

entered into (and/or will enter into in the near future) various contracts to memorialize a host of

legal and commercial arrangements between them involving the development and ultimate

disposition of the Projects. Such arrangements between Buyer and its affiliates, on the one hand,

and 8ME and its affiliates, on the other hand, had, if anything, a positive impact on the purchase

price offered for such Projects given the substantial challenges to the Projects highlighted above.

In any event, such arrangements do not constitute an agreement among bidders for such Projects

because neither the Buyer nor 8ME were ever a sole bidder for both Projects individually even in

the 2015 marketing process that culminated in the signing of the sale documentation for the D.E.

Shaw Sale. Accordingly, the Debtors submit that the Buyer is entitled to the findings set forth in

the Private Sale Order or Auction Sale Order, as applicable, with respect to not violating

Bankruptcy Code section 363(n).

E. The Purchase Price Constitutes Reasonably Equivalent Value for the Equity Interests Transferred.

51. A debtor receives reasonably equivalent consideration when “the debtor’s

net worth has been preserved” following a transfer of its assets. Harrison v. N.J. Cmty. Bank (In

re Jesup & Lamont, Inc.), 507 B.R. 452, 472 (Bankr. S.D.N.Y. 2014); see also Mellon Bank,

N.A. v. Metro Commc’ns, Inc., 945 F.2d 635, 646-47 (3d Cir. 1991) (“The touchstone is whether

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the transaction conferred realizable commercial value on the debtor reasonably equivalent to the

realizable commercial value of the assets transferred.”). A finding of reasonably equivalent

value does not require an exact equivalent exchange of consideration; rather, the benefits that a

debtor receives from the transfer must approximate its costs. Harrison, 507 B.R. at 472 (“[I]f

[the value received] approximates the value of what the debtor transferred, there will be

reasonably equivalent value[.]”). Further, transactions between a debtor and a third-party on an

arms’ length basis are presumptively for reasonably equivalent value. See Mishkin v. Ensminger

(In re Adler, Coleman Clearing Corp.), 247 B.R. 51, 109 (Bankr. S.D.N.Y. 1999) (“[W]hen there

is an arms-length transaction by parties that have equal knowledge, a court should not substitute

its own view of a fair market price.”) (citing Cooper v. Ashley Comm., Inc., (In re Morris

Communications NC, Inc.), 914 F.2d 458, 465, 474-75 (4th Cir. 1990)).

52. Here, the sale of the Equity Interests constitutes an arms’-length

transaction between the Debtors and an unaffiliated third party (other than those relationships

relating to the Exchangeable Notes). The Company expects to receive approximately $70

million in net sale proceeds for the Equity Interests. As set forth in the Martin Declaration, given

the severe timing and other challenges to preserving value in the Mt Signal 2 Project and the

significant necessary expenditures by any purchaser to successfully develop the Project in the

face of such challenges, the Debtors believe that the sale proceeds and other non-cash

consideration represent reasonably equivalent value for the Equity Interests. Finally, the Debtors

have kept their primary creditor constituencies apprised of the PSA negotiations and analysis

regarding the sale transaction.

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II. IN THE ALTERNATIVE, THE COURT SHOULD APPROVE THE EXPEDITED BIDDING PROCEDURES, ENTRY INTO THE PSA AS A STALKING HORSE AGREEMENT, AND BID PROTECTIONS FOR THE BUYER AS A STALKING HORSE BIDDER.

A. The Bidding Procedures Are Fair And Are Designed To Maximize The Value Received For The Equity Interests.

53. In the event that the Court is unwilling to enter the Private Sale Order, the

Debtors believe that the Bidding Procedures are appropriate under Bankruptcy Code sections 105

and 363 to ensure that the sale process is fair and reasonable and will yield the maximum value

for their estates, their creditors, their stakeholders, and other parties in interest. The Bidding

Procedures proposed herein are designed to maximize the value received for the Equity Interests

by facilitating a competitive bidding process in which all potential bidders are encouraged to

participate and submit competing bids, within an expedited timeframe designed to address the

impending deadlines and operational issues outlined above. The Bidding Procedures provide

potential bidders with sufficient notice and an opportunity to acquire information necessary to

submit a timely and informed bid, especially in light of the Debtors’ extensive marketing efforts,

which span a nearly nine-month period to date, of the Equity Interests. Thus, the Debtors and all

parties in interest can be assured that the consideration for the Equity Interests will be fair and

reasonable. At the same time, the Bidding Procedures provide the Debtors with the opportunity

to consider competing offers and to determine, in consultation with the Committee and the DIP

Lenders, the highest or otherwise best offer for the Equity Interests.

54. Accordingly, the Debtors believe the Court should approve the Bidding

Procedures at the conclusion of the Sale Hearing by entry of the Auction Sale Procedures Order

in the event it is unwilling to enter the Private Sale Order.

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B. The Bid Protections Are Appropriate and Should Be Authorized.

55. As described above, the PSA provides for Bid Protections for the Buyer

(in its role as a stalking horse bidder) in the event that the PSA is terminated and the Bid

Protections become payable pursuant to the terms therein. Approval of break-up fees and

expense reimbursements, and other forms of bidding protections in connection with the sale of

significant assets pursuant to Bankruptcy Code section 363 has become established practice in

chapter 11 cases. Courts in this District have held that break-up fees should be approved as long

as (i) the relationship between the parties is not tainted by self-dealing, (ii) the fee does not

hamper bidding, and (iii) the amount of the fee is reasonable in relation to the size of the

transaction. See, e.g., Official Comm. of Subordinated Bondholders v. Integrated Res., Inc. (In

re Integrated Res., Inc.), 147 B.R. 650, 658 (S.D.N.Y. 1992).

56. The Debtors submit that all three of the above requirements have been

met. The relationship between the parties has not been tainted by self-dealing; rather,

negotiations have been conducted at arm’s length, with all relevant parties represented by

experienced counsel and advisors.

57. Nor will the Bid Protections hamper bidding. To the contrary, the Bid

Protections are actually necessary to preserve the value of the estate. But for the Bid Protections,

the Debtors do not believe the Buyer would have agreed to serve as a stalking horse bidder. In

the absence of this agreement, and in the absence of the Buyer’s willingness to serve as a

stalking horse bidder in the event that this Court requires a further bidding process and Auction

for the Equity Interests, the Debtors believe that sale process for the Equity Interests, as well as

the sale of the Equity Interests itself, would be imperiled, with no other party wishing to be

burdened with the expense of taking the lead on doing diligence on the assets and setting a

baseline bid for their purchase. See In re 995 Fifth Ave. Assocs., L.P., 96 B.R. 24, 28 (Bankr. 38

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S.D.N.Y. 1989) (bidding incentives may be “legitimately necessary to convince a ‘white knight’

to enter the bidding by providing some form of compensation for the risks it is undertaking”)

(citation omitted).

58. Finally, as set forth in more detail in the Parkhill Declaration, the

aggregate amount of the Bid Protections is reasonable and appropriate in light of the size and

nature of the transaction and the efforts that have been and will be expended by the Buyer, acting

as a stalking horse bidder. Indeed, courts in this District have approved protections similar to the

Bid Protections as reasonable and consistent with the type and range of bidding protection

typically approved. See, e.g., In re Silicon Graphics, Inc., Case No. 09-11701 (MG) (Bankr.

S.D.N.Y. Apr. 3, 2009), ECF No. 55 (approving a break-up fee and expense reimbursement

totaling approximately 6% of the total purchase price); In re Hostess Brands, Inc., Case No. 12-

22052 (RDD) (Bankr. S.D.N.Y. Feb. 11, 2013) ECF No. 2275 (approving break-up fee and

expense reimbursement 5.4% of purchase price); In re Advance Watch Company, LTD., Case

No. 15-12690 (MG) (Bankr. S.D.N.Y. Oct. 23, 2015), ECF No. 105 (approving break-up fee and

expense reimbursement 4.67% of purchase price); In re MSR Resort Golf Course LLC, Case No.

11-10372 (SHL) (Bankr. S.D.N.Y. Dec. 20, 2011), ECF No. 920 (approving topping fee and

expense reimbursement 4.0% of purchase price); In re Cabrini Med. Ctr., No. 09-14398 (AJG)

(Bankr. S.D.N.Y. Dec. 30, 2009), ECF No. 224 (approving a break-up fee of approximately

3.75% of the purchase price); In re Tronox Inc., No. 09-10156 (ALG) (Bankr. S.D.N.Y. Sept. 23,

2009), ECF No. 715 (approving a break-up fee and expense reimbursement totaling

approximately 3.72% of the total purchase price); In re Choice Bldg. Supplies of Westchester

Co. Inc., No. 13-23859 (RDD) (Bankr. S.D.N.Y. Apr. 1, 2014), ECF No. 26 (approving a break-

up fee of approximately 3.64% of the purchase price).

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59. Such bidding protections enable a debtor to ensure a sale to a contractually

committed bidder at a price the debtor believes is fair, while providing the debtor with an

opportunity to enhance the value received by its estate through an auction process that will be

more robust due to the presence of a baseline bid.

SHORTENED NOTICE SCHEDULING HEARING ON MOTION

60. Simultaneously with the filing of this Motion, the Debtors have submitted

(i) the Declaration of Shana Elberg Pursuant to Local Bankruptcy Rule 9077-1(a) in Support of

Order to Show Cause Scheduling Hearing on Shortened Notice for Debtors’ Motion for (I) An

Order Authorizing and Approving a Private Sale of Equity Interests In Imperial Valley Solar 2,

LLC and 88FT 8ME LLC; Or, (II) In the Alternative, For (1) An Order (A) Authorizing Certain

Debtors’ Entry Into The Stalking Horse Agreement, (B) Approving Bidding Procedures and

Stalking Horse Bid Protections In Connection With Sale of Assets of the Debtors, (C)

Scheduling Auction and Sale Hearing, and (D) Granting Related Relief; And (2) Thereafter, An

Order (A) Approving the Sale of Equity Interests In Imperial Valley Solar 2, LLC and 88FT

8ME LLC Free and Clear of All Liens, Claims, and Encumbrances And (B) Granting Related

Relief (the “Elberg Declaration”) and (ii) the proposed Order to Show Cause Scheduling Hearing

on Shortened Notice for Debtors’ Motion for (I) An Order Authorizing and Approving a Private

Sale of Equity Interests In Imperial Valley Solar 2, LLC and 88FT 8ME LLC; Or, (II) In the

Alternative, For (1) An Order (A) Authorizing Certain Debtors’ Entry Into The Stalking Horse

Agreement, (B) Approving Bidding Procedures and Stalking Horse Bid Protections In

Connection With Sale of Assets of the Debtors, (C) Scheduling Auction and Sale Hearing, and

(D) Granting Related Relief; And (2) Thereafter, An Order (A) Approving the Sale of Equity

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Interests In Imperial Valley Solar 2, LLC and 88FT 8ME LLC Free and Clear of All Liens,

Claims, and Encumbrances And (B) Granting Related Relief (the “Order to Show Cause”).

61. Bankruptcy Rule 2002(a)(1) provides that this Court may, “for cause

shown,” shorten the required notice period for and direct another method of giving notice of a

motion. Fed. R. Bankr. P. 2002(a)(1). As set forth more fully in the Elberg Declaration, the

Debtors respectfully submit that sufficient “cause” exists for expedited consideration of the relief

sought under the Motion. Specifically, the imminent sale of the Equity Interests is necessary to

prevent a delay in closing which would, among other things, jeopardize obtaining renewal of

critical interconnection rights associated with the Mt Signal 2 Project, which would irreversibly

degrade the value of the Project.

62. Accordingly, for the reasons set forth herein and in the Elberg Declaration,

the Debtors request that this Court enter an Order to Show Cause, substantially in the proposed

form filed by the Debtors concurrently herewith, scheduling consideration of the relief requested

under the Motion for the hearing scheduled for July 21, 2016 at 10:00 a.m. (Prevailing Eastern

Time).

63. The Debtors propose to give notice of the Motion, the Elberg Declaration,

and the Order to Show Cause in accordance with the provisions set forth in the Order to Show

Cause, as entered by this Court.

WAIVER OF STAY UNDER BANKRUPTCY RULE 6004(h)

64. The Debtors also request that this Court waive the stay imposed by

Bankruptcy Rule 6004(h), which provides that “[a]n order authorizing the use, sale, or lease of

property other than cash collateral is stayed until the expiration of 14 days after entry of the

order, unless the court orders otherwise.” Fed. R. Bankr. P. 6004(h). As described above, the

relief that the Debtors seek in this Motion is necessary for the Debtors to maximize the value of 41

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the Mt Signal 2 Project for the benefit of their estates. Accordingly, the Debtors respectfully

request that this Court waive the fourteen day stay imposed by Bankruptcy Rule 6004(h), as the

exigent nature of the relief sought herein justifies immediate relief.

RESERVATION OF RIGHTS

65. Nothing contained herein is or should be construed as: (a) an admission as

to the validity of any claim against the Debtors; (b) a waiver of the Debtors’ rights to dispute any

claim on any grounds; (c) a promise to pay any claim; (d) an assumption or rejection of any

executory contract or unexpired lease pursuant to Bankruptcy Code section 365; or (e) otherwise

affect the Debtors’ rights under Bankruptcy Code section 365 to assume or reject any executory

contract with any party subject to this Motion.

NOTICE

66. Notice of this Motion shall be given to (a) the Office of the United States

Trustee for the Southern District of New York; (b) counsel to the administrative agent under the

Debtors’ prepetition first lien credit agreement; (c) counsel to the Tranche B Lenders (as defined

in the DIP Credit Agreement) and the steering committee of the second lien creditors (the

“Steering Committee”); (d) counsel to the administrative agent under the Debtors’ prepetition

second lien credit agreement; (e) counsel to the collateral trustee under the Debtors’ prepetition

second lien credit agreement; (f) counsel to the indenture trustee under each of the Debtors’

outstanding bond issuances; (g) the U.S. Attorney for the Southern District of New York;

(h) counsel to the administrative agent under the postpetition debtor-in-possession financing

facility; (i) counsel to the Committee in these Chapter 11 Cases; (j) counsel to TerraForm Power,

Inc. and TerraForm Global, Inc.; (k) the Internal Revenue Service; (l) the Securities and

Exchange Commission; (m) any party known or reasonably believed to have asserted a lien,

encumbrance, claim or other interest in the Equity Interests; (n) any party known or reasonably 42

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believed to have expressed an interest in acquiring the Equity Interests; and (o) any such other

party entitled to notice pursuant to Local Bankruptcy Rule 9013-1(b). The Debtors submit that

no other or further notice need be provided.

NO PRIOR REQUEST

67. No previous request for the relief sought herein has been made to this

Court or any other court.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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CONCLUSION

WHEREFORE, the Debtors respectfully request that this Court enter an order,

substantially in the form annexed hereto, granting the relief requested in the Motion and such

other and further relief as may be just and proper.

Dated: New York, New York July 5, 2016

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

By: /s/ Shana Elberg Jay M. Goffman J. Eric Ivester Shana Elberg Four Times Square New York, New York 10036-6522 Telephone: (212) 735-3000 Fax:(212) 735-2000 -and- James J. Mazza, Jr. (admitted pro hac vice) Louis S. Chiappetta (admitted pro hac vice) 155 N. Wacker Dr. Chicago, Illinois 60606-1720 Telephone: (312) 407-0700 Fax: (312) 407-0411

Counsel for Debtors and Debtors in Possession

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EXHIBIT A

Proposed Private Sale Order for Equity Interests

DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 2 of 32

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

: In re: : Chapter 11 : SUNEDISON, INC., et al., : Case No. 16-10992 (SMB) : Debtors.1 : Jointly Administered :

ORDER AUTHORIZING AND APPROVING SALE OF EQUITY INTERESTS IN IMPERIAL VALLEY SOLAR 2, LLC AND 88FT 8ME LLC

Upon the motion (the “Motion”)2 of the Debtors for entry of an order (this

“Order”) pursuant to sections 105(a), 363(b), 363(f), 363(m), 541(a), 1107, and 1108 of title 11 of the United States Code (as amended, the “Bankruptcy Code”), and Rules 2002, 6004, and

9006 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) authorizing First

Wind California Holdings, LLC (the “Seller”) to sell or transfer its equity interests (such equity interests, collectively, the “Equity Interests”) in (a) Imperial Valley Solar 2, LLC (“IVS2”), and

(b) 88FT 8ME, LLC (“88FT” and, together with IVS2, the “Subsidiaries” and, each of the foregoing individually, a “Subsidiary”) to DESRI MS2 Development, L.L.C. (the “Buyer”) in

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtors’ tax identification number are as follows: SunEdison, Inc. (5767); SunEdison DG, LLC (N/A); SUNE Wind Holdings, Inc. (2144); SUNE Hawaii Solar Holdings, LLC (0994); First Wind Solar Portfolio, LLC (5014); First Wind California Holdings, LLC (7697); SunEdison Holdings Corporation (8669); SunEdison Utility Holdings, Inc. (6443); SunEdison International, Inc. (4551); SUNE ML 1, LLC (3132); MEMC Pasadena, Inc. (5238); Solaicx (1969); SunEdison Contracting, LLC (3819); NVT, LLC (5370); NVT Licenses, LLC (5445); Team-Solar, Inc. (7782); SunEdison Canada, LLC (6287); Enflex Corporation (5515); Fotowatio Renewable Ventures, Inc. (1788); Silver Ridge Power Holdings, LLC (5886); SunEdison International, LLC (1567); Sun Edison LLC (1450); SunEdison Products Singapore Pte. Ltd. (7373); SunEdison Residential Services, LLC (5787); PVT Solar, Inc. (3308); SEV Merger Sub Inc. (N/A); Sunflower Renewable Holdings 1, LLC (6273); Blue Sky West Capital, LLC (7962); First Wind Oakfield Portfolio, LLC (3711); First Wind Panhandle Holdings III, LLC (4238); DSP Renewables, LLC (5513); Hancock Renewables Holdings, LLC (N/A). The address of the Debtors’ corporate headquarters is 13736 Riverport Dr., Maryland Heights, Missouri 63043.

2 Capitalized terms not otherwise defined herein have the meanings ascribed to them in the Motion or the PSA, as applicable. 1

DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 3 of 32 accordance with that certain Purchase and Sale Agreement, dated as of July 1, 2016 (together with all related agreements, documents or instruments and all exhibits, schedules, and supplements to any of the foregoing, the “PSA”, and the transactions described therein, the “Sale

Transaction”), by and among the Seller, SunEdison, Inc. (“SUNE” and, together, with the Seller, the “Seller Parties”) and the Buyer, free and clear of all Liens and Claims (as defined herein), with such Liens attaching to the proceeds with the same validity, extent, and priority as had attached to the Equity Interests immediately prior to the sale or transfer; and the Court having held a hearing on [______], 2016 (the “Sale Hearing”) to approve the proposed Sale Transaction as set forth in the PSA; and the Court having reviewed and considered (a) the Motion, (b) the

First Day Declaration, (c) the Martin Declaration, (d) the Parkhill Declaration, (e) the objections to the Motion, if any, and (f) the arguments of counsel made, and the evidence proffered or adduced at the Sale Hearing; and due and sufficient notice of the Motion having been given under the particular circumstances; and it appearing that no other or further notice need be provided; and it appearing that the relief requested in the Motion is in the best interests of the

Debtors, their estates, their creditors, their stakeholders, and other parties in interest; and after due deliberation thereon; and sufficient cause appearing therefor; it is hereby

FOUND AND DETERMINED THAT:3

A. Jurisdiction and Venue. This Court has jurisdiction (i) to consider the

Motion and (ii) over the property of Debtors, including the Equity Interests to be sold, transferred, and conveyed pursuant to the PSA, under 28 U.S.C. §§ 157 and 1334. This is a core

3 These findings and determinations constitute the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. Where appropriate, findings of fact shall be construed as conclusions of law and conclusions of law shall be construed as findings of fact. 2

DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 4 of 32 proceeding under 28 U.S.C. § 157(b). Venue of these cases and this Motion in this district is proper under 28 U.S.C. §§ 1408 and 1409.

B. Legal Predicates. The legal predicates for the relief sought in the Motion are Bankruptcy Code sections 105(a), 363(b), 363(f), 363(m), 541(a), 1107, and 1108, and

Bankruptcy Rules 2002, 6004, 9006, and 9019.

C. Final Order. This Order constitutes a final order within the meaning of

28 U.S.C. § 158(a). Notwithstanding Bankruptcy Rules 6004(h) and 7062, and to the extent necessary under Bankruptcy Rule 9014 and Rule 54(b) of the Federal Rules of Civil Procedure, as made applicable by Bankruptcy Rule 7054, this Court expressly finds that there is no just reason for delay in the implementation of this Order and expressly directs entry of this Order as set forth herein.

D. Notice. As evidenced by the affidavits of service filed with the Court at

Docket No. [___], and based on the representations of counsel at the Sale Hearing, (i) proper, timely, adequate, and sufficient notice of the Motion, the Sale Hearing, the PSA, and the Sale

Transaction has been provided in accordance with Bankruptcy Code sections 102(1) and 363 and

Bankruptcy Rules 2002, 6004, 9006, and 9019 and the case management procedures established in that certain Order Granting Debtors’ Amended Motion for Order Pursuant to Bankruptcy

Code Sections 102 and 105, Bankruptcy Rules 1015, 2002, 9007, and 9036, and Local

Bankruptcy Rule 2002 Authorizing the Establishment of Certain Notice, Case Management, and

Administrative Procedures [Docket No. 360] (the “Case Management Order”), as amended and waived by the Court in accordance with the [Order to Show Cause Scheduling Hearing on

Shortened Notice for Debtors’ Motion for (I) An Order Authorizing and Approving a Private

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Sale of Equity Interests In Imperial Valley Solar 2, LLC and 88FT 8ME LLC; Or, (II) In the

Alternative, For (1) An Order (A) Authorizing Certain Debtors’ Entry Into The Stalking Horse

Agreement, (B) Approving Bidding Procedures and Stalking Horse Bid Protections In

Connection With Sale of Assets of the Debtors, (C) Scheduling Auction and Sale Hearing, and

(D) Granting Related Relief; And (2) Thereafter, An Order (A) Approving the Sale of Equity

Interests In Imperial Valley Solar 2, LLC and 88FT 8ME LLC Free and Clear of All Liens,

Claims, and Encumbrances And (B) Granting Related Relief] [Docket No. ___] to each party entitled to such notice, (ii) such notice was good, sufficient, and appropriate under the particular circumstances, and (iii) no other or further notice of the Motion, the Sale Hearing, the PSA, or the Sale Transaction is or shall be required.

E. Corporate Authority. Each of the Seller Parties (subject only to entry of this Order) and the Buyer (i) has full corporate power and authority to execute the PSA and all other documents contemplated thereby, and the sale of the Equity Interests has been duly and validly authorized by all necessary corporate action, (ii) has all of the corporate power and authority necessary to consummate the transactions contemplated by the PSA, and (iii) has taken all corporate action and formalities necessary to authorize and approve the PSA and the consummation by the Seller Parties of the transactions contemplated thereby, including, without limitation, as required by their respective organizational documents. No government, regulatory, or other consents or approvals are required for the Seller Parties to enter into the PSA and consummate the Sale Transaction.

F. Opportunity to Object. A fair and reasonable opportunity to object or be heard with respect to the Motion and the relief requested therein has been afforded to all

4

DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 6 of 32 interested persons and entities, including: (a) all entities known to have expressed an interest in a transaction with respect to all or part of the Equity Interests; (b) counsel to the Buyer; (c) counsel to the administrative agent under the Debtors’ prepetition first lien credit agreement; (d) counsel to the Tranche B Lenders (as defined in the debtor-in-possession credit agreement) and the steering committee of the second lien creditors; (e) counsel to the administrative agent under the

Debtors’ prepetition second lien credit agreement; (f) counsel to the collateral trustee under the

Debtors’ prepetition second lien credit agreement; (g) counsel to the indenture trustee under each of the Debtors’ outstanding bond issuances; (h) the Office of the United States Trustee for the

Southern District of New York; (i) the U.S. Attorney for the Southern District of New York; (j) counsel to the DIP Administrative Agent (as defined in the PSA); (k) counsel to the official committee of unsecured creditors; (l) the Internal Revenue Service; (m) the Securities and

Exchange Commission; (n) all entities known to have asserted any Lien or Claim in or upon any of the Equity Interests; (o) any such other party entitled to notice pursuant to Bankruptcy Rule

2002, Rule 9013-1(b) of the Local Bankruptcy Rules for the United States Bankruptcy Court for the Southern District of New York, or the Case Management Order.

G. Sale in Best Interests. The consideration provided by the Buyer under the PSA constitutes the highest or otherwise best offer for the Equity Interests and provides fair consideration and reasonably equivalent value to the Seller Parties in exchange for the Equity

Interests and the assumption of the Assumed Liabilities. The transactions contemplated by the

PSA represent the best opportunity to maximize and realize the value of the Equity Interests for the Debtors’ estates. Consummation of the Sale Transaction at this time is in the best interests of the Debtors, their creditors, their estates, their stakeholders, and other parties in interest.

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H. Business Justification. Sound business reasons exist for the Sale

Transaction. Entry into the PSA, and the consummation of the transactions contemplated thereby, constitutes each Seller Party’s exercise of sound business judgment and such acts are in the best interests of the Debtors, their estates, their stakeholders, and all parties in interest. The terms and conditions of the PSA, including, without limitation, the consideration to be realized by the Seller Parties, are fair and reasonable. The Court finds that the Debtors have articulated good and sufficient business reasons justifying the Sale Transaction, including, without limitation, the fact that (i) SUNE conducted an extensive marketing and auction process for the

Subsidiaries, and for the Mt Signal 3 Project (as defined in the PSA, and together with the

Project, the “Projects”) in the third and fourth quarters of 2015, pursuant to which, the

Subsidiaries and Mt Signal 3 Project were marketed and bid on as a single, indivisible asset, and

SUNE selected an affiliate of the Buyer as the highest or otherwise best bidder for the

Subsidiaries and Mt Signal 3 Project at the conclusion of the auction process, (ii) the Projects face substantial risk of irreparable harm if the Sale Transaction is not closed promptly because, among other things, certain land rights, interconnection agreements, co-tenancy rights, and conditional use permits are set to expire imminently in the absence of renewal or extension, as applicable, by the Buyer, (iii) the Seller Parties have continued to market the Subsidiaries and the

Mt Signal 3 Project throughout 2016, including the marketing process conducted by the Debtors and their advisors following the Petition Date, and (iv) the Seller Parties are unlikely to find a higher or otherwise better offer for the Equity Interests because the Buyer is uniquely qualified, based on its familiarity and experience with the Project, to address certain significant development challenges affecting the Project, including: (a) the need for the Projects to obtain

6

DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 8 of 32 increased transmission capacity and interconnection rights and to acquire the rights to use certain shared facilities, necessitating agreement by various cotenants, including entities unaffiliated with the Seller Parties, and (b) the ambiguity of the terms (including with respect to quantity and timing) of certain co-tenancy obligations owed to Imperial Valley Solar Holdings, LLC in connection with the Projects. For these reasons and based on the other evidence of record, the

Court finds that (i) the PSA constitutes the highest or otherwise best offer for the Equity Interests under the circumstances, (ii) the PSA and the closing of the Sale Transaction present the best opportunity to realize value for the Equity Interests, and (iii) any other transaction would create a substantial risk of delay and a significant reduction in value.

I. Condition to Sale Transaction. Entry of this Order approving the PSA and all the provisions thereof is a condition precedent to the Buyer’s obligation to consummate the Sale Transaction.

J. Arm’s-Length Sale. The PSA and the Sale Transaction contemplated thereunder were proposed, negotiated, and entered into by the Seller Parties and the Buyer without collusion, in good faith, and from arm’s-length bargaining positions. Neither the Seller

Parties nor the Buyer has engaged in any conduct that would cause or permit the PSA or the Sale

Transaction to be avoided or result in the imposition any costs or damages under 11 U.S.C. §

363(n). Neither the Buyer nor any of its affiliates, present or contemplated members, officers, directors, or shareholders or any of their respective successors and assigns (in each case, identified as of the date hereof) is an “insider” of the Debtors as defined in Bankruptcy Code section 101(31).

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K. Good Faith Purchaser. The Buyer (i) is a good faith purchaser for value and, as such, is entitled to all of the protections afforded under 11 U.S.C. § 363(m) and any other applicable or similar bankruptcy and non-bankruptcy law, and (ii) has otherwise proceeded in good faith in all respects in connection with this proceeding. Specifically: (a) all payments to be made by the Buyer in connection with the Sale Transaction have been disclosed; (b) the negotiation and execution of the PSA was at arm’s-length and in good faith, and at all times each of the Buyer and the Seller Parties were represented by competent counsel of their choosing; (c) the Buyer did not in any way induce or cause the filing of the Chapter 11 Cases; and (d) the

Buyer has not acted in a collusive manner with any person. The Buyer will be acting in good faith within the meaning of 11 U.S.C. § 363(m) in closing the transactions contemplated by the

PSA.

L. Free and Clear. The Seller Parties may sell the Equity Interests free and clear of all Liens and Claims because, with respect to each creditor that could assert such a Lien or Claim, one or more of the standards set forth in Bankruptcy Code section 363(f)(1)-(5) has been satisfied. The transfer of the Equity Interests to the Buyer will be free and clear of all Liens and Claims and will not subject the Buyer or any of the Buyer’s assets to any liability for any

Liens or Claims whatsoever (including, without limitation, under any theory of equitable law, antitrust, setoff (except with respect to setoffs that were effected prior to the Petition Date), or

Successor or Transferee Liability (as defined below)). All holders of Liens or Claims who did not object, or withdrew their objections, are deemed to have consented to the Sale Transaction pursuant to Bankruptcy Code section 363(f)(2). The Buyer would not have entered into the PSA and would not consummate the Sale Transaction, thus adversely affecting the Debtors, their

8

DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 10 of 32 estates, creditors, and other parties in interest, if, except to the extent set forth in this Order and the PSA, the transfer of the Equity Interests were not free and clear of all Liens and Claims or if the Buyer would, or in the future could, be liable for any Liens or Claims, including, without limitation and as applicable, certain liabilities that expressly are not assumed by the Buyer as set forth in the PSA or in this Order. Not transferring the Equity Interests free and clear of the Liens and Claims would adversely impact the Debtors’ efforts to maximize the value of their estates.

M. Prompt Consummation. The sale of the Equity Interests must be approved and consummated promptly in order to preserve the value of the Equity Interests. The

Debtors have demonstrated both (i) good, sufficient, and sound business purposes and justifications and (ii) compelling circumstances for the Sale Transaction pursuant to Bankruptcy

Code section 363(b) prior to, and outside of, a plan of reorganization in that, among other things, absent the immediate consummation of the Sale Transaction, the value of the Equity Interests will be harmed. To maximize the value of the Equity Interests, it is essential that the Sale

Transaction occur within the timeframe set forth in the PSA. Therefore, time is of the essence in consummating the Sale Transaction, and the Seller Parties and the Buyer intend to close the Sale

Transaction as soon as reasonably practicable.

N. No Fraudulent Transfer. The PSA was not entered into, and neither the

Seller Parties nor the Buyer proposes to consummate the Sale Transaction, for the purpose of hindering, delaying, or defrauding the Debtors’ present or future creditors under the Bankruptcy

Code or under the laws of the United States, any state, territory, possession thereof, or the

District of Columbia or any other applicable jurisdiction with laws substantially similar to the foregoing.

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O. Consideration. As demonstrated by the Martin Declaration, the other evidence proffered or adduced at the Sale Hearing, and the arguments of counsel made on the record at the Sale Hearing, the consideration provided by the Buyer for the Equity Interests pursuant to the PSA (i) is fair, full, adequate, and reasonable, (ii) is the highest or otherwise best offer for the Equity Interests, (iii) will provide a greater recovery for the Debtors’ creditors than would be provided by any other practical available alternative, and (iv) constitutes reasonably equivalent value, reasonable market value, and fair consideration under the Bankruptcy Code and under the laws of the United States, any state, territory, possession, or the District of Columbia

(including, without limitation, the Uniform Fraudulent Conveyance Act and the Uniform

Fraudulent Transfer Act).

P. No Successor Liability. Except as otherwise set forth in the PSA, the transfer of the Equity Interests pursuant to the PSA does not, and will not, subject the Buyer to any liability or obligation whatsoever, with respect to the operation of any of the Debtors’ businesses or by reason of such transfer under the laws of the United States, any state, territory, or possession thereof, or the District of Columbia, based, in whole or in part, directly or indirectly, in any theory of law or equity including, without limitation, any laws affecting antitrust, successor, transferee or vicarious liability. The Buyer (i) does not have a common identity of incorporators, officers, directors, or equity holders with any of the Debtors and (ii) is not holding itself out to the public as a continuation of any of the Debtors or their estates. The

Sale Transaction does not amount to a consolidation, merger, or de facto merger of the Buyer and any of the Debtors and/or the Debtors’ estates and the purpose and intent of the Sale

Transaction is not to avoid the Seller Parties’ liabilities or assist the Seller Parties in avoiding

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DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 12 of 32 their liabilities. Except with respect to the businesses conducted by the Subsidiaries, there is not substantial continuity between the Buyer and any of the Debtors, there is no continuity of enterprise between any of the Debtors and the Buyer, the Buyer is not a mere continuation or substantial continuation of any of the Debtors or the Debtors’ estates, and the Buyer does not constitute a successor to any of the Debtors or the Debtors’ estates. For the avoidance of doubt, nothing in this paragraph is intended to release or otherwise affect (x) any Liens or Claims of any kind or nature against the Subsidiaries, or to affect any person or entity’s rights with respect to such Liens or Claims against the Subsidiaries, or (y) any LC Lender Liens and Claims (as defined below).

Q. Legal, Valid Transfer. The transfer of the Equity Interests pursuant to the PSA will be a legal, valid, and effective transfer of all of the legal, equitable, and beneficial right, title and interest in and to the Equity Interests and will vest the Buyer with good title to the

Equity Interests free and clear of all Liens and Claims. The Seller Parties may sell the Equity

Interests free and clear of all Liens and Claims as set forth in this Order because, in each case, one or more of the standards set forth in Bankruptcy Code section 363(f) has been satisfied. The transfer of the Equity Interests to the Buyer will vest the Buyer with good and marketable title to the Equity Interests free and clear of all Liens and Claims. The Equity Interests constitute property of the Debtors’ estates within the meaning of Bankruptcy Code section 541(a), and good title is vested in the Debtors’ estates. First Wind California Holdings, LLC is the sole and rightful owner of the Equity Interests, and no other person has any ownership right, title, or interests therein.

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R. Not a Sub Rosa Plan. The sale and assignment of the Equity Interests outside of a plan of reorganization pursuant to the PSA neither impermissibly restructures the rights of the Debtors’ creditors nor impermissibly dictates the terms of a liquidating plan for the

Debtors. Neither the PSA nor the Sale Transaction contemplated thereby constitute a sub rosa chapter 11 plan for which approval has been sought without the protections that a disclosure statement would afford.

S. Legal and Factual Bases. The legal and factual bases set forth in the

Motion and at the Sale Hearing establish just cause for the relief granted herein.

IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED THAT:

General Provisions

1. The Motion is GRANTED to the extent set forth herein.

2. All objections to the Motion or the relief requested therein that have not been withdrawn, waived, or settled, and all reservations of rights included therein, are overruled on the merits and denied with prejudice. All persons and entities given notice of the Motion that failed to timely object thereto are deemed to consent to the relief sought therein.

Approval of the Sale of the Equity Interests

3. The PSA, including any amendments, supplements, and modifications thereto, and all of the terms and conditions therein, including, without limitation, those terms and conditions regarding the creation of the Escrow Account and the post-Closing payment of the

Adjustment Amount, is hereby approved.

4. The Sale Transaction is hereby approved and authorized in all respects, and the Seller Parties are hereby authorized and empowered to enter into, and to perform their

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DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 14 of 32 obligations under, the PSA and to (a) execute and perform under such other agreements or documents, and (b) take such other actions as are necessary or desirable, to effectuate the terms of the PSA. Notwithstanding the foregoing, neither the Seller Parties nor the Buyer shall have any obligation to proceed with a closing under the PSA until all conditions precedent to its obligations to do so have been met, satisfied, or waived.

Sale and Transfer of Equity Interests

5. Pursuant to 11 U.S.C. § 363(b), the Seller Parties are hereby authorized and empowered to sell the Equity Interests and consummate the Sale Transaction in accordance with, and subject to the terms and conditions of, the PSA, and are further authorized and empowered to execute, deliver, perform under, consummate, and implement the PSA, together with all additional instruments and documents that may be reasonably necessary or desirable to implement the PSA, including, without limitation, the related documents, exhibits and schedules, and to take all further actions as may be reasonably requested by the Buyer for the purposes of assigning, transferring, granting, conveying, and conferring to the Buyer or reducing to possession, the Equity Interests, or as may be necessary or appropriate to the performance of the

Seller Parties’ obligations as contemplated by the PSA.

6. Except as otherwise expressly provided in the PSA and the terms of this

Order, pursuant to 11 U.S.C. §§ 363(b) and 363(f), the Equity Interests shall be transferred on the Closing Date (as defined in the PSA) free and clear of all (i) claims (including, without limitation, the DIP Superpriority Claims, the Second Lien Adequate Protection Claims, the

Carved-Out Yieldco Administrative Claims, and any other claim arising under or set forth in any

DIP Loan Document (each of the foregoing, as defined in the Final DIP Order (as defined

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DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 15 of 32 below))), Liabilities (as defined in the PSA), interests in, rights against, and encumbrances on, or otherwise in respect of, the Equity Interests as of the Closing Date, including, without limitation, all restrictions (including, without limitation, any restriction on the use, voting rights, transfer rights, claims for receipt of income, or other exercise of any attributes of ownership), hypothecations, charges, indentures, instruments, options, security interests, conditional sale rights or other title retention agreements, pledges, judgments, demands, rights of first refusal, consent rights, contract rights, rights of recovery, reimbursement rights, contribution claims, indemnity rights, exoneration rights, alter-ego claims, tax claims, regulatory violations by any governmental entity, decrees of any court or foreign or domestic governmental entity, charges of any kind or nature, debts arising in any way in connection with any agreements, acts, or failures to act, obligation claims, demands, guaranties, contractual or other commitment rights and claims, and all other matters of any kind and nature, whether known or unknown, choate or inchoate, filed or unfiled, scheduled or unscheduled, noticed or unnoticed, recorded or unrecorded, perfected or unperfected, allowed or disallowed, contingent or non-contingent, liquidated or unliquidated, matured or unmatured, material or non-material, disputed or undisputed, whether arising prior to or subsequent to the commencement of the Debtors’ Chapter

11 Cases (but, for the avoidance of doubt, in each case directly related to the Equity Interests prior to the Closing Date), and whether imposed by agreement, understanding, law, equity or otherwise, including claims otherwise arising under any theory, law or doctrine of successor liability or related theories, as well as any and all “claims” as that term is defined and used in the

Bankruptcy Code, including section 101(5) thereof (all of the foregoing, collectively, “Claims”), and (ii) Liens (as defined in the PSA), including, without limitation, the DIP Liens, the Adequate

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Protection Liens, and any other liens arising under or set forth in any DIP Loan Document (each of the foregoing, as defined in the DIP Order), on or against the Equity Interests, arising prior to the Closing Date (the “Liens”), with such Liens to attach to the proceeds of the Sale Transaction in the order of their priority, with the same validity, force and effect which they now have as against the Equity Interests. Notwithstanding anything to the contrary in the foregoing sentence or otherwise in this Order, neither “Liens” nor “Claims” shall include (x) any Assumed

Liabilities (as defined in the PSA), or (y)(i) any claims, security interests, or liens granted to or for the benefit of the LC Lenders (or authorized to continue in effect) pursuant to section 6.13 of the PSA or under any document or agreement executed and/or delivered in connection therewith

(the “LC Definitive Documentation”) or (ii) any claims against the Buyer, the Subsidiaries, or otherwise arising from any obligations or rights granted to or for the benefit of the LC Lenders under section 6.13 the PSA or any LC Definitive Documentation (such liens, claims, and security interests specified in sub-clauses (i) and (ii), collectively, the “LC Lender Liens and Claims”), which LC Lender Liens and Claims shall have the priority, and shall continue in force and effect as and to the extent set forth in the PSA and as reflected in any LC Definitive Documentation and the transfer of the Equity Interests on the Closing Date or otherwise pursuant to this Order shall be subject to the LC Lender Liens and Claims as and to the extent set forth in the PSA and as reflected in such LC Definitive Documentation; provided that, for the avoidance of doubt, nothing in the foregoing clause (y) is intended to impair the rights of the LC Lenders under

Section 14.17 of the PSA.

7. Following the Closing, the Seller Parties and the Buyer are authorized to file, register or record a certified copy of this Order, which, once filed, registered or otherwise

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DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 17 of 32 recorded, shall constitute conclusive evidence of the release of all Liens and Claims of any kind or nature whatsoever with respect to the Equity Interests, all filing agents, filing officers, administrative agencies, governmental departments, secretaries of state, federal and local officials, and all other persons and entities who may be required by operation of law, the duties of their office, or contract, to accept, file, register, or otherwise record or release any documents or instruments are hereby directed to accept such copy of this Order or any other documents and instruments necessary and appropriate to consummate the transactions contemplated by the PSA for such filing, registration or recording. On the Closing Date, this Order will be construed, and constitute for any and all purposes, a full and complete general assignment, conveyance, and transfer of the Equity Interests transferring good and marketable title in and to such Equity

Interests to the Buyer in accordance with the PSA.

8. At Closing, all of the Seller Parties’ right, title and interest in and to, and possession of, the Equity Interests shall be immediately vested in the Buyer pursuant to

Bankruptcy Code sections 105(a), 363(b), and 363(f) free and clear of any and all Liens and

Claims. Such transfer shall constitute a legal, valid, binding, and effective transfer of the Equity

Interests. All persons or entities in possession of some or all of the Equity Interests are directed to surrender possession of the Equity Interests directly to the Buyer or its designees at the

Closing or at such time thereafter as the Buyer may request.

9. To the extent allowed by the financing or other contractual arrangements to which the Buyer is a party, the Buyer is hereby authorized in connection with the consummation of the Sale Transaction to assign, transfer, allocate, or otherwise dispose of any of the Equity Interests to and among its affiliates, designees, assignees, and/or successors (i) in a

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DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 18 of 32 manner as it, in its sole discretion, deems appropriate and (ii) with all of the rights and protections accorded under this Order and the PSA, and the Debtors shall cooperate with and take all actions reasonably requested by the Buyer to effectuate any of the foregoing.

10. This Order: (a) shall be effective as a determination that, as of the Closing,

(i) no Liens or Claims will be capable of being asserted against the Buyer or any of its direct assets (including the Equity Interests), (ii) the Equity Interests shall have been transferred to the

Buyer free and clear of all Liens and Claims, and (iii) the conveyances described herein have been effected; and (b) is and shall be binding upon and govern the acts of all persons and entities, including, without limitation, all filing agents, filing officers, administrative agencies, governmental departments, secretaries of state, federal and local officials, and all other persons and entities who may be required by operation of law, the duties of their office, or contract, to accept, file, register, or otherwise record or release any documents or instruments.

11. All persons and entities (and their respective successors and assigns), including, without limitation, all debt security holders, equity security holders, affiliates, governmental, tax, and regulatory authorities, lenders, customers, vendors, employees, trade creditors, litigation claimants, and other creditors holding Liens or Claims of any kind or nature whatsoever arising under or out of, in connection with, or in any way relating to, the Equity

Interests are hereby forever barred, estopped, and permanently enjoined from asserting such

Liens or Claims against the Buyer, its successors or assigns, or the Equity Interests. Following the Closing, no holder of any Lien or Claim shall interfere with the Buyer’s title to the Equity

Interests based on or related to any such Lien or Claim, or based on any action the Debtors may take in their Chapter 11 Cases. For the avoidance of doubt, and notwithstanding anything to the

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DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 19 of 32 contrary herein, nothing in this paragraph is intended (x) to release or otherwise affect any Liens or Claims of any kind or nature against the Subsidiaries, or to affect any person or entity’s rights with respect to such Liens or Claims against the Subsidiaries, or (y) to release or otherwise affect any LC Lender Liens and Claims, including against the Subsidiaries or the Buyer (or otherwise) or to affect any person or entity’s rights with respect to such LC Lender Liens and Claims, against the Subsidiaries or the Buyer (or otherwise).

12. Each person or entity that has filed financing statements or other documents or agreements evidencing Liens or Claims on or against the Equity Interests shall use commercially reasonable efforts to deliver to the Debtors and the Buyer prior to the Closing of the Sale Transaction in proper form for filing, and executed by the appropriate parties, termination statements, instruments of satisfaction, and releases of all such Liens and Claims on or against the Equity Interests. If any person or entity that has filed financing statements or other documents or agreements evidencing Liens or Claims on or against the Equity Interests shall not have delivered to the Debtors prior to the Closing of the Sale Transaction, in proper form for filing, and executed by the appropriate parties, termination statements, instruments of satisfaction, and releases of all such Liens and Claims, then only with regard to the Equity

Interests that are purchased by the Buyer pursuant to the PSA and this Order: (a) the Debtors and the Buyer are hereby authorized to execute and file such statements, instruments, releases, and other documents on behalf of the person or entity with respect to the Equity Interests; (b) the

Buyer is hereby authorized to file, register or otherwise record a certified copy of this Order, which, once filed, registered, or otherwise recorded, shall constitute conclusive evidence of the release of all Liens and Claims on or against the Buyer and the Equity Interests; and (c) the

18

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Buyer may seek in this Court or any other court to compel appropriate parties to execute termination statements, instruments of satisfaction, and releases of all Liens and Claims (but not, for the avoidance of doubt, any Assumed Liabilities or LC Lender Liens and Claims). This

Order is deemed to be in recordable form sufficient to be placed in the filing or recording system of each and every federal, state, or local government agency, department, or office.

Notwithstanding the foregoing, the provisions of this Order authorizing the sale and assignment of the Equity Interests free and clear of Liens and Claims shall be self-executing, and neither the

Debtors nor the Buyer shall be required to execute or file releases, termination statements, assignments, consents, or other instruments to effectuate, consummate, and implement the provisions of this Order.

13. All persons and entities are hereby forever prohibited and permanently enjoined from taking any action to adversely affect or interfere with the ability of the Seller

Parties to transfer the Equity Interests in accordance with the PSA and this Order; provided, however, that the foregoing restriction shall not prevent any party from appealing this Order in accordance with applicable law or opposing any appeal of this Order.

14. Any post-closing adjustment payment made by the Seller Parties to the

Buyer in accordance with Section 2.06 of the PSA and any amount paid to the Buyer from the

Escrow Account shall be paid to the Buyer free and clear of all prepetition and postpetition Liens and Claims, including, without limitation, all prepetition and postpetition Liens and Claims of the Prepetition Secured Parties and the DIP Secured Parties (as each such term is defined in the

Final DIP Order) under, or otherwise described in, the Final Order (I) Authorizing Debtors to

(A) Obtain Senior Secured, Superpriority, Postpetition Financing Pursuant to Bankruptcy Code

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Sections 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1), and 364(e) and (B) Utilize

Cash Collateral Pursuant to Bankruptcy Code Section 363, and (II) Granting Adequate

Protection to Prepetition Secured Parties Pursuant to Bankruptcy Code Sections 361, 362, 363 and 364 [Docket No. 523] (the “Final DIP Order”) and the other DIP Loan Documents, in each case notwithstanding any provision to the contrary in the Final DIP Order, the other DIP Loan

Documents, or any other order of this Court.

Waiver of D.E. Shaw Claims

15. Conditioned upon and effective solely from and after Closing (as defined in the PSA), Buyer, on behalf of itself and its successors and assigns, and its present and former members, managers, shareholders, affiliates, subsidiaries, predecessors, directors, officers, employees, agents, legal representatives, and other representatives (Buyer and all such other

Persons being referred to in this paragraph 14 collectively as the “Waiving Parties”), hereby absolutely, unconditionally, and irrevocably waive any and all demands, actions, causes of action, suits, damages, and any and all other claims, counterclaims, defenses, rights of set off, and liabilities whatsoever of every kind and nature, at law or in equity, which any Waiving Party now owns, holds, has, or claims to have, in each case, to seek secured status or priority unsecured status (including under any theories of constructive trust or otherwise) under the

Bankruptcy Code of a Claim solely with respect to the specific cash Purchase Price received under the PSA or the IVS3/IVS4/Sun Lake PSA (as defined in the PSA) by the Seller (as adjusted, if at all, in accordance with Sections 2.05 and 2.06 of the PSA) (each, a “Claim”)

(excluding, for the avoidance of doubt, any timely claim against the Escrow Amount or pursuant to the proviso in Section 2.06(b) of the PSA, with respect to which it is acknowledged and

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DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 22 of 32 agreed by the Parties (as defined in the PSA) that Buyer shall have a first claim to such proceeds to the extent set forth in the PSA). From and after Closing, the waiver set forth above may be pleaded as a full and complete defense to any such Claim and may be used as a basis for an injunction against any action, suit, or other proceeding which may be instituted, prosecuted, or attempted in breach of the provisions of such waiver (but only to the extent of the waiver set forth above and in the PSA). From and after Closing, no fact, event, circumstance, evidence, or transaction which could now be asserted or which may hereafter be discovered will affect in any manner the final, absolute, and unconditional nature of the waiver set forth above and in the

PSA. Notwithstanding the foregoing, nothing herein or in the PSA shall prevent or bar the

Waiving Parties from filing a proof of claim asserting, and receiving any recovery to which they are legally entitled in respect of, any allowed general unsecured claims the Buyer or its Affiliates may have against the Seller Parties in the Sellers’ Chapter 11 Cases (in each case, regardless of the legal priority to which such claim would otherwise be entitled but for the foregoing waiver), provided, however, that the Seller Parties and their Affiliates reserve any and all rights to object or otherwise respond to any such filed proof of claim. For the avoidance of doubt, all of each

Waiving Party’s rights with respect to its other claims against the Seller Parties or any of its present or former members, managers, shareholders, Affiliates, subsidiaries, predecessors, directors, officers, employees, agents, legal representatives, or other representatives shall be fully preserved, and each Waiving Party shall have the right to assert all other claims against and receive any distribution to which it is entitled under law from Seller or such other Person with respect to all such other claims.

No Successor or Transferee Liability

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16. The Buyer is not a “successor” to the Debtors or their estates by reason of any theory of law or equity, and the Buyer shall not assume, or be deemed to assume, or in any way be responsible for any liability or obligation of any of the Debtors and/or their estates with respect to the Equity Interests or otherwise, including, but not limited to, under any bulk sales law, doctrine or theory of successor liability, or similar theory or basis of liability. The Buyer shall not be deemed to: (a) be a legal successor, or otherwise be deemed a successor to any of the

Debtors or their affiliates or incur any liability derived therefrom within the meaning of any foreign, federal, state or local law; (b) have, de facto or otherwise, merged with or into any of the

Debtors or their affiliates; or (c) be an alter ego or a mere continuation or substantial continuation of any of the Debtors or their affiliates, in each case including, without limitation, within the meaning of any pension law, the Employee Retirement Income Security Act, the

Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the WARN Act (29 U.S.C. §§

2101 et seq.) (“WARN”), the Fair Labor Standard Act, Title VII of the Civil Rights Act of 1964

(as amended), the Age Discrimination and Employment Act of 1967 (as amended), the Federal

Rehabilitation Act of 1973 (as amended), and the National Labor Relations Act, 29 U.S.C. § 151, et seq. (the “NLRA”). For the avoidance of doubt, nothing in this paragraph is intended to release or otherwise affect (x) any Liens or Claims of any kind or nature against the Subsidiaries, or to affect any person or entity’s rights with respect to such Liens or Claims against the

Subsidiaries, or (y) any LC Lender Liens and Claims.

17. Other than as expressly set forth in the PSA or this Order solely with respect to Assumed Liabilities or any LC Lender Liens and Claims, the Buyer shall not have any responsibility for any liability or other obligation of the Debtors or any of their affiliates, whether

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DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 24 of 32 known or unknown as of the Closing, now existing or hereafter arising, asserted or unasserted, fixed or contingent, liquidated or unliquidated, including under any law or theory of successor or vicarious liability, antitrust law, environmental law, foreign, federal, state or local revenue law, or products liability law; provided, however, for the avoidance of doubt, that, unless otherwise explicitly provided for in the PSA, Buyer shall not assume any liability or other obligation of the

Subsidiaries, which shall remain liabilities and obligations of the applicable Subsidiary. Without limiting the generality of the foregoing, the Buyer shall not be liable for any (a) liabilities, debts, or obligations on account of any taxes arising, accruing or payable under, out of, in connection with, or in any way relating to the ownership of the Equity Interests prior to the Closing, (b) environmental liabilities or obligations arising from conditions first existing prior to Closing

(including, without limitation, the presence of hazardous, toxic, polluting, or contaminating substances or wastes), which may be asserted on any basis, including, without limitation, under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), or

(c) liabilities, debts or obligations arising from conditions first existing or actions occurring prior to the Closing with respect to any labor, employment, or similar law, rule or regulation, including the laws specified in the preceding paragraph 15 (including filing requirements under any such laws, rules or regulations) (all liabilities described in paragraphs 15 and 16 of this

Order, “Successor or Transferee Liability”). For the avoidance of doubt, nothing in this paragraph is intended to release or otherwise affect (x) any Liens or Claims of any kind or nature against the Subsidiaries, or to affect any person or entity’s rights with respect to such Liens or

Claims against the Subsidiaries, or (y) any LC Lender Liens and Claims.

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18. Except as otherwise expressly provided in this Order or the PSA, nothing shall require the Buyer to: (a) continue or maintain in effect, or assume any liability in respect of any employee, collective bargaining agreement, pension, welfare, fringe benefit or any other benefit plan, trust arrangement or other agreements to which any Debtor is a party or have any responsibility therefor including, without limitation, medical, welfare and pension benefits payable after retirement or other termination of employment; or (b) assume any responsibility as a fiduciary, plan sponsor or otherwise, for making any contribution to, or in respect of the funding, investment, or administration of any employee benefit plan, arrangement, or agreement

(including but not limited to pension plans) or the termination of any such plan, arrangement, or agreement.

19. Effective upon the Closing, except with respect to Assumed Liabilities or any LC Lender Liens and Claims, all persons and entities are forever prohibited and enjoined from commencing or continuing in any matter any action or other proceeding, whether in law or equity, in any judicial, administrative, arbitral, or other proceeding against the Buyer, or its assets (including the Equity Interests), with respect to any (a) Lien or Claim or (b) Successor or

Transferee Liability, including, without limitation, the following actions with respect to clauses

(a) and (b): (i) commencing or continuing any action or other proceeding pending or threatened;

(ii) enforcing, attaching, collecting or recovering in any manner any judgment, award, decree or order; (iii) creating, perfecting or enforcing any Lien or Claim; (iv) asserting any setoff, right of subrogation, or recoupment of any kind; or (v) commencing or continuing any action, in any manner or place, that does not comply with, or is inconsistent with, the provisions of this Order

24

DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 26 of 32 or other orders of this Court, or the agreements or actions contemplated or taken in respect hereof.

Good Faith

20. The transactions contemplated by the PSA are undertaken by the Buyer without collusion and in good faith, as that term is used in Bankruptcy Code section 363(m), and accordingly, the reversal or modification on appeal of the authorization provided herein by this

Order to consummate the Sale Transaction shall not affect the validity of the sale of the Equity

Interests. The Buyer has acted in good faith, and is entitled to all of the protections afforded by

Bankruptcy Code section 363(m).

21. As a good faith purchaser of the Equity Interests, the Buyer has not entered into any agreement with any other potential bidders with respect to the Sale Transaction and has not colluded with any of the other bidders, potential bidders, or any other parties interested in the Equity Interests, and, therefore, neither the Debtors nor any successor in interest to the Debtors’ estates or any person or entity acting derivatively with respect to the Debtors or their estates shall be entitled to bring an action against the Buyer, and the Sale Transaction may not be avoided pursuant to Bankruptcy Code section 363(n) or otherwise.

Other Provisions

22. The terms and provisions of the PSA and this Order shall be binding in all respects upon, and shall inure to the benefit of, the Debtors and their respective affiliates and subsidiaries, successors and assigns, their estates, and their creditors, the Buyer, and its affiliates, successors and assigns, and any affected third parties including, but not limited to, all persons asserting Liens or Claims on or against the Equity Interests, notwithstanding any subsequent

25

DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 27 of 32 appointment of any trustee(s), examiner with expanded powers, or other responsible person or officer under any chapter of the Bankruptcy Code, as to which persons such terms and provisions likewise shall be binding.

23. The PSA and any related agreements, documents, or other instruments may be modified, amended, or supplemented by the parties thereto, in a writing signed by all parties, and in accordance with the terms thereof, without further order of the Court, provided that any such modification, amendment, or supplement does not have a material adverse effect on the Debtors’ estates. To the extent that any such proposed modification, amendment, or supplement has a material adverse effect on the Debtors’ estates, such proposed modification, amendment, or supplement shall be subject to the consent of the Required Tranche A Lenders and Tranche B Required Consenting Parties (each as defined in the DIP Credit Agreement).

Notwithstanding anything to the contrary contained in this Order or the PSA, the LC Lenders are intended third-party beneficiaries of, and shall be entitled to the protections set forth in, this

Order to the extent expressly applicable to the LC Lenders or the LC Lender Liens and Claims, and any such provisions may not be amended, modified, supplemented, or waived, without the prior written consent of the DIP Administrative Agent and upon notice to the Required Tranche

B Lenders. To the extent that any provision of the PSA conflicts with or is, in any way, inconsistent with any provision of this Order, this Order shall govern and control.

24. The Buyer shall not be required to seek or obtain relief from the automatic stay under Bankruptcy Code section 362 to enforce any of its remedies under the PSA or any other sale-related document. The automatic stay imposed by Bankruptcy Code section 362 is

26

DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 28 of 32 modified solely to the extent necessary to implement the preceding sentence, provided however that this Court shall retain exclusive jurisdiction over any and all disputes with respect thereto.

25. This Order and the PSA shall be binding in all respects upon all creditors of (whether known or unknown), and holders of equity interests in, the Debtors, any holders of

Liens or Claims in, against, or on all or any portion of the Equity Interests and shall not be subject to rejection. Nothing contained in any chapter 11 plan confirmed in any of the Debtors’

Chapter 11 Cases, any order confirming any such chapter 11 plan, any order approving wind- down or dismissal of any of the Debtors’ Chapter 11 Cases or any subsequent chapter 7 cases, or any other order of any type or kind entered in the Debtors’ Chapter 11 Cases shall conflict with or derogate from the provisions of the PSA or this Order, and to the extent of any conflict or derogation between this Order or the PSA and such future plan or order, the terms of this Order and the PSA shall control.

26. The requirements set forth in Bankruptcy Rules 6003(b) and 6004 have been satisfied or otherwise deemed waived.

27. As provided by Bankruptcy Rules 7062 and 9014, the terms and conditions of this Order shall be effective and enforceable immediately upon entry and shall not be subject to the stay provisions contained in Bankruptcy Rule 6004(h). Time is of the essence in closing the sale, and the Debtors and the Buyer intend to close the sale as promptly as practicable following entry of this Order.

28. The provisions of this Order and the PSA are non-severable and mutually dependent. The provisions of this Order shall be self-executing.

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29. The Debtors and each other person having duties or responsibilities under the PSA or this Order, and their respective agents, representatives, and attorneys, are authorized and empowered to carry out all of the provisions of the PSA, to issue, execute, deliver, file, and record, as appropriate, the PSA, and any related agreements, and to take any action contemplated by the PSA or this Order, and to issue, execute, deliver, file, and record, as appropriate, such other contracts, instruments, releases, deeds, bills of sale, assignments, or other agreements, and to perform such other acts as are consistent with, and necessary or appropriate to, implement, effectuate, and consummate the PSA and this Order and the transactions contemplated thereby and hereby, all without further application to, or order of, the Court. Without limiting the generality of the foregoing, this Order shall constitute all approvals and consents, if any, required by applicable business corporation, trust, and other laws of applicable governmental units with respect to the implementation and consummation of the PSA and this Order and the transactions contemplated thereby and hereby.

30. Notwithstanding anything to the contrary contained herein, any authorization contained herein and proceeds obtained by the Seller Parties pursuant to the Sale

Transaction shall be subject to any applicable requirements imposed on the Debtors under the

Final DIP Order and the other DIP Loan Documents; provided that, for the avoidance of doubt, amounts deposited in the Escrow Account shall not be considered proceeds obtained by the

Seller Parties unless and until such amounts are released from the Escrow Account to the Seller

Parties; provided, further, that, notwithstanding the waterfall provisions set forth in the

Intercreditor Annex (as defined in the Final DIP Order), Net Asset Sale Proceeds (as defined in the DIP Credit Agreement (as defined in the Final DIP Order)) obtained by the Seller Parties

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DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 30 of 32 pursuant to the Sale Transaction shall be allocated (x) $50 million of (i) the Net Asset Sale

Proceeds obtained pursuant to the Sale Transaction minus (ii) any Net Asset Sale Proceeds received pursuant to the sale transaction proposed in respect of the MS3 Project (as defined in the PSA), to immediately repay amounts currently outstanding in respect of any Tranche A-2

Roll-Up Loans (as defined in the DIP Credit Agreement) and (y) the remaining amount of Net

Asset Sale Proceeds from the Sale Transaction shall be deposited into the DIP Facilities Blocked

Account (as defined in the Final DIP Order) for use in accordance with the DIP Budget (as defined in the Final DIP Order) and the other DIP Loan Documents, and the Net Asset Sale

Proceeds referred to in this subclause (y) shall be considered “Budgeted Asset Sale Proceeds” under the DIP Credit Agreement. For the avoidance of doubt, notwithstanding the transfer of the

Equity Interests to the Buyer pursuant to the Sale Transaction, in accordance with the terms of the PSA the Project LCs shall be permitted to remain outstanding for 180 days following consummation of the Sale Transaction as an accommodation to the Buyer and to the Seller

Parties and, in addition to, and without in any way limiting, any rights and entitlements provided with respect to such Project LCs pursuant to the PSA, such Project LCs shall continue to be (x) treated as Letters of Credit (as defined in the DIP Credit Agreement) issued (or deemed issued) under the DIP Credit Agreement and (y) entitled to all rights and entitlements attributed to

Letters of Credit under the DIP Credit Agreement (including, without limitation, all rights to reimbursement by the Borrower and the applicable Lenders under, and in accordance with, the

DIP Credit Agreement); provided, however, that, for the avoidance of doubt and without derogation of the obligations of the Buyer, its Affiliates and the Companies pursuant to the LC

Return Documents and the LC Security Documents, in no event shall (i) the Buyer, its Affiliates

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778858-LACSR02A - MSW DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 31 of 32 or the Companies be liable for any increased costs, expenses, fees or other amounts payable under the DIP Facility resulting from any act or omission by Seller, any Affiliate thereof or any other Person (other than the Buyer, the Companies, and/or any Affiliate of any thereof) in connection with the DIP Facility (as between Buyer and Seller, any such increased costs, expenses, fees or other amounts to be solely for the account of Seller and its Affiliates) or (ii) the availability or validity of the Project LCs (after amendment and reissuance thereof in accordance with Section 6.13(a) of the PSA) be in any way reduced or limited in connection with any act or omission by Seller, any Affiliate thereof or any other Person (other than the Buyer, the

Companies, and/or any Affiliate of any thereof) in connection with the DIP Facility.

31. The requirements set forth in Local Bankruptcy Rule 9013-1(b) are satisfied by the contents of the Motion.

32. The failure to specifically include any particular provisions of the PSA in this Order shall not diminish or impair the effectiveness of such provision, it being the intent of the Court that the PSA be authorized and approved in its entirety; provided, however, that this

Order shall govern if there is any direct conflict, and only to the extent of such conflict, between the PSA (including all ancillary documents executed in connection therewith) and this Order.

33. This Court shall retain exclusive jurisdiction to, among other things, interpret, enforce, and implement the terms and provisions of this Order and the PSA, including all amendments thereto, any waivers and consents thereunder, and of each of the agreements executed in connections therewith in all respects, and to adjudicate, if necessary, any and all disputes concerning or relating in any way to the Sale Transaction. This Court retains jurisdiction to compel delivery of the Equity Interests, to protect the Buyer and its assets,

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DC\4338269.15 16-10992-smb Doc 695-1 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit A Pg 32 of 32 including the Equity Interests, against any Claims, Liens, and Successor or Transferee Liability and to enter orders, as appropriate, pursuant to sections 105 or 363 (or other applicable provisions) of the Bankruptcy Code necessary to transfer the Equity Interests to the Buyer.

Dated: New York, New York , 2016

HONORABLE STUART M. BERNSTEIN

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EXHIBIT B

Proposed Auction Sale Procedures Order

16-10992-smb Doc 695-2 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit B Pg 2 of 23

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

------x In re: : Chapter 11 : SUNEDISON, INC., et al.,1 : Case No. 16-10992 (SMB) : Debtors. : (Jointly Administered) : ------x RE: Docket No. __

ORDER, PURSUANT TO BANKRUPTCY CODE SECTIONS 105(A), 363, 503, AND 507 AND BANKRUPTCY RULES 2002, 6004, 9007, AND 9014, (A) AUTHORIZING CERTAIN DEBTORS’ ENTRY INTO THE STALKING HORSE AGREEMENT, (B) APPROVING BIDDING PROCEDURES AND STALKING HORSE BID PROTECTIONS IN CONNECTION WITH SALE OF ASSETS OF THE DEBTORS, (C) SCHEDULING AUCTION AND SALE HEARING, AND (D) GRANTING RELATED RELIEF

Upon the motion (the “Motion”) 2 of the above-captioned debtors and debtors-in-

possession (collectively, the “Debtors”) seeking, among other things, entry of an order: (a)

authorizing the Seller Parties (as defined below) to enter into, and perform their obligations

under, that certain Purchase and Sale Agreement, dated as of July 1, 2016 (as may be amended or

otherwise modified in accordance with the terms thereof and hereof, the “Stalking Horse

Agreement”), by and among SunEdison Inc., a Delaware corporation (“Seller Parent”), First

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s tax identification number are as follows: SunEdison, Inc. (5767); SunEdison DG, LLC (N/A); SUNE Wind Holdings, Inc. (2144); SUNE Hawaii Solar Holdings, LLC (0994); First Wind Solar Portfolio, LLC (5014); First Wind California Holdings, LLC (7697); SunEdison Holdings Corporation (8669); SunEdison Utility Holdings, Inc. (6443); SunEdison International, Inc. (4551); SUNE ML 1, LLC (3132); MEMC Pasadena, Inc. (5238); Solaicx (1969); SunEdison Contracting, LLC (3819); NVT, LLC (5370); NVT Licenses, LLC (5445); Team-Solar, Inc. (7782); SunEdison Canada, LLC (6287); Enflex Corporation (5515); Fotowatio Renewable Ventures, Inc. (1788); Silver Ridge Power Holdings, LLC (5886); SunEdison International, LLC (1567); Sun Edison LLC (1450); SunEdison Products Singapore Pte. Ltd. (7373); SunEdison Residential Services, LLC (5787); PVT Solar, Inc. (3308); SEV Merger Sub Inc. (N/A). The address of the Debtors’ corporate headquarters is 13736 Riverport Dr., Maryland Heights, Missouri 63043. 2 Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Motion or the Bidding Procedures, as applicable. 1

DC\4270751.7 16-10992-smb Doc 695-2 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit B Pg 3 of 23

Wind California Holdings, LLC, a Delaware limited liability company (the “Seller” and together with Seller Parent, the “Seller Parties”), and DESRI MS2 Development, L.L.C. (the “Stalking

Horse Buyer”), (b) establishing bidding procedures (the “Bidding Procedures”) to govern the sale by the Seller of 100% of the limited liability company or other equity interests (collectively, the

“Equity Interests”) of (i) Imperial Valley Solar 2, LLC, a Delaware limited liability company

(“IVS2”), and (ii) 88FT 8ME LLC, a Delaware limited liability company (“88FT”, and together with IVS2, the “Companies”), and approving certain bid protections in favor of the Stalking

Horse Buyer in connection therewith; (c) scheduling an auction to sell the Equity Interests (the

“Auction”) and the Sale Hearing; and (d) granting other related relief, as more fully described in the Motion; and it appearing that the relief requested is in the best interests of the Debtors’ estates, their creditors, and other parties in interest; and the Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. §§ 157 and 1334; and consideration of the Motion and the relief requested therein being a core proceeding pursuant to

28 U.S.C. § 157; and venue being proper before this Court pursuant to 28 U.S.C. §§ 1408 and

1409; and due and proper notice of the Motion having been provided under the particular circumstances; and it appearing that no other or further notice need be provided; and after due deliberation and sufficient cause appearing therefor,

IT IS HEREBY FOUND AND CONCLUDED that:3

A. The statutory bases for the relief requested in the Motion are sections 105(a), 363,

503, and 507 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy

Code”) and Rules 2002, 6004, 9007, and 9014 of the Federal Rules of Bankruptcy Procedure

3 The findings and conclusions set forth herein constitute the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. To the extent that any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any of the following conclusions of law constitute findings of fact, they are adopted as such. 2

DC\4270751.7 16-10992-smb Doc 695-2 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit B Pg 4 of 23

(the “Bankruptcy Rules”).

B. Notice of the Motion having been given to: (a) the Office of the United States

Trustee for the Southern District of New York; (b) counsel to the administrative agent under the

Debtors’ prepetition first lien credit agreement; (c) counsel to the Tranche B Lenders (as defined in the DIP Credit Agreement) and the steering committee of the second lien creditors (the

“Steering Committee”); (d) counsel to the administrative agent under the Debtors’ prepetition second lien credit agreement; (e) counsel to the collateral trustee under the Debtors’ prepetition second lien credit agreement; (f) counsel to the indenture trustee under each of the Debtors’ outstanding bond issuances; (g) the U.S. Attorney for the Southern District of New York;

(h) counsel to the administrative agent under the postpetition debtor-in-possession financing facility; (i) counsel to the Committee in these Chapter 11 Cases; (j) counsel to TerraForm Power,

Inc. and TerraForm Global, Inc.; (k) the Internal Revenue Service; (l) the Securities and

Exchange Commission; (m) any party known or reasonably believed to have asserted a lien, encumbrance, claim or other interest in the Equity Interests; (n) any party known or reasonably believed to have expressed an interest in acquiring the Equity Interests; and (o) any such other party entitled to notice pursuant to Local Bankruptcy Rule 9013-1(b). Good and sufficient notice of the Motion, Bidding Procedures, and the relief sought in the Motion has been given under the circumstances, and no other or further notice is required except as set forth herein and in the

Bidding Procedures. A reasonable opportunity to object or be heard regarding the relief provided herein has been afforded to parties in interest.

C. The Debtors have articulated good and sufficient reasons for this Court to grant the relief requested in the Motion regarding the sale process, including (i) the Seller Parties’ entry into, and performance under, the Stalking Horse Agreement (provided, however, that this

3

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Order shall not authorize the consummation of the Sale Transaction set forth in the Stalking

Horse Agreement), (ii) the payment of the Break-Up Fee and the Expense Reimbursement to the

Stalking Horse Buyer in accordance with the Stalking Horse Agreement, and (iii) the scheduling of the Bid Deadline, the Auction, and the Sale Hearing with respect to the proposed sale of the

Equity Interests free and clear of Liens and Liabilities (each as defined in the Stalking Horse

Agreement) (other than those expressly permitted by the Stalking Horse Agreement or the Bidder

Agreement of the Prevailing Purchaser, as applicable) (the “Sale”).

D. The Stalking Horse Agreement and its terms were negotiated by the Seller Parties and the Stalking Horse Buyer in good faith and at arms-length. The Stalking Horse Agreement represents the highest or otherwise best offer that the Debtors have received to date to purchase the Equity Interests.

E. Pursuit of the Stalking Horse Buyer as a “stalking-horse” and its Stalking Horse

Agreement as a “stalking horse sale agreement” is in the best interests of the Debtors and the

Debtors’ estates and creditors, and it reflects a sound exercise of the Debtors’ business judgment.

The Stalking Horse Agreement will enable the Debtors to secure a fair and adequate baseline price for the Equity Interests and, accordingly, will provide a clear benefit to the Debtors’ estates, their creditors, and all other parties in interest.

F. The Bidding Procedures are reasonably designed to maximize the value to be achieved for the Equity Interests and the Debtors have articulated good and sufficient business reasons for the Court to approve the Bidding Procedures.

G. The Debtors have demonstrated that the Break-Up Fee and the Expense

Reimbursement are (i) reasonable and appropriate conditions of the Stalking Horse Agreement and (ii) actual and necessary costs and expenses of preserving the Debtors’ estates, within the

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meaning of section 503(b) of the Bankruptcy Code, and of substantial benefit to the Debtors’ estates by inducing the Stalking Horse Buyer’s bid, which has established a bid standard or minimum for other bidders for the Equity Interests, thereby ensuring that during the Auction, if any, the Seller receives the highest or best bid possible for the Equity Interests.

H. Agreeing to pay the Break-Up Fee and the Expense Reimbursement is within the sound business judgment of the Seller Parties and will increase the likelihood that the Seller will receive the greatest possible consideration for the Equity Interests. The Debtors have articulated good and sufficient business reasons for the Court to approve the Break-Up Fee and the Expense

Reimbursement.

I. The Stalking Horse Buyer is not an “insider” or “affiliate” of any of the Debtors, as those terms are defined in section 101 of the Bankruptcy Code, and no common identity of incorporators, directors, or controlling stockholders existed between the Stalking Horse Buyer and the Debtors. The Stalking Horse Buyer and its respective counsel and advisors have acted in

“good faith” within the meaning of section 363(m) of the Bankruptcy Code in connection with the Stalking Horse Buyer’s negotiation of the Break-Up Fee and the Expense Reimbursement and the Bidding Procedures and the Stalking Horse Buyer’s negotiation and entry into the

Stalking Horse Agreement.

J. The entry of this Order is in the best interests of the Debtors, their estates, their creditors, and other parties in interest.

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:

1. The Motion is GRANTED as it relates to relief described in this Order, as set forth herein.

2. The Bidding Procedures, in the form attached hereto as Exhibit 1, are hereby

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approved in their entirety. The Debtors are authorized to take any and all actions necessary or appropriate to implement the Bidding Procedures in accordance with their terms.

3. All objections to the relief requested in the Motion that have not been withdrawn, waived, or settled as announced to the Court at the hearing on the Motion or by stipulation filed with the Court, are overruled except as otherwise set forth herein.

4. The Seller Parties are authorized to enter into, and perform its obligations under, the Stalking Horse Agreement (provided, however, that this Order shall not authorize the consummation of the Sale Transaction set forth in the Stalking Horse Agreement) and to conduct an Auction in accordance with the Bidding Procedures.

5. All bidders submitting a Qualified Bid are deemed to have submitted to the exclusive jurisdiction of this Court with respect to all matters related to the Bidding Procedures, the Auction and the terms and conditions of the sale or transfer of the Equity Interests identified under the Stalking Horse Agreement.

6. If the Stalking Horse Buyer’s bid, as reflected in the Stalking Horse Agreement, is the only Qualified Bid in respect of the Equity Interests that is received by the Debtors by the

Bid Deadline, no Auction will be conducted for the Equity Interests, and the Stalking Horse

Buyer will be the Prevailing Bidder for the Equity Interests.

7. Each Qualified Bidder participating in the Auction shall confirm in writing that

(a) it has not engaged in any collusion with respect to the submission of any bid, the bidding or the Auction and (b) its Qualified Bid is a good faith bona fide offer that it intends to consummate if selected as a Prevailing Bidder. All proceedings at an Auction shall be transcribed.

8. The Break-Up Fee and the Expense Reimbursement are approved and shall be payable to the Stalking Horse Buyer in cash out of the proceeds of any Alternative Transaction

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(as defined in the Stalking Horse Agreement) at the closing of such Alternative Transaction in accordance with the terms and conditions of the Stalking Horse Agreement. The Break-Up Fee and the Expense Reimbursement (i) shall be paid to the Stalking Horse Buyer prior to any other payments being made out of the proceeds of any Alternative Transaction, and (ii) shall be paid to the Stalking Horse Buyer free and clear of all prepetition and postpetition Liens, Liabilities, and claims (as defined in the Bankruptcy Code), including, without limitation, all prepetition and postpetition Liens, Liabilities, and claims (as defined in the Bankruptcy Code) of the Prepetition

Secured Parties and the DIP Secured Parties (as each such term is defined in the Final DIP Order

(as defined below)) under, or otherwise described in, the Final Order (I) Authorizing Debtors to

(A) Obtain Senior Secured, Superpriority, Postpetition Financing Pursuant to Bankruptcy Code

Sections 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1), and 364(e) and (B) Utilize

Cash Collateral Pursuant to Bankruptcy Code Section 363, and (II) Granting Adequate

Protection to Prepetition Secured Parties Pursuant to Bankruptcy Code Sections 361, 362, 363 and 364 [Docket No. 523] (the “Final DIP Order”) or the other DIP Loan Documents (as defined in the Final DIP Order), in each case notwithstanding any provision to the contrary in the Final

DIP Order, the other DIP Loan Documents, or any other order of this Court. In addition, the obligation of Seller Parties to pay the Break-Up Fee and the Expense Reimbursement shall survive the termination of the Stalking Horse Agreement.

9. Promptly following the Debtors’ selection of the Prevailing Purchaser, the

Debtors shall announce the Prevailing Purchaser and shall file with this Court a notice of the

Prevailing Purchaser.

10. Notwithstanding section 362 of the Bankruptcy Code, the Stalking Horse

Purchaser shall be permitted to terminate the Stalking Horse Agreement in accordance with its

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terms.

11. No entity, other than the Stalking Horse Buyer, shall be entitled to any expense reimbursement, break-up fee, “topping,” termination, contribution, or other similar fee or payment in connection with the Sale.

12. The Bid Deadline is August 4, 2016 at 5:00 p.m. (EST). The Auction, if necessary, shall be held on August 9, 2016 at 10:00 a.m. (EST). The Sale Hearing shall be conducted on August 11, 2016 at 10:00 a.m. (EST). The Debtors may seek the entry of an order of this Court at the Sale Hearing approving and authorizing the Sale to the Stalking Horse

Buyer or such other Prevailing Purchaser, as applicable, on terms and conditions consistent with the Stalking Horse Agreement or Bidder Agreement, as applicable. All obligations of the

Debtors set forth in the Stalking Horse Agreement that are intended to be performed prior to the

Sale Hearing and/or entry of the Sale Approval Order (as defined in the Stalking Horse

Agreement) are authorized as set forth herein and are fully enforceable as of the date of entry of this Order. The Sale Hearing may be adjourned from time to time by the Debtors without further notice to any other party in interest other than by announcement of the adjournment in open court on the date scheduled for the Sale Hearing or a notice filed with the Court; provided that, for the avoidance of doubt, the Stalking Horse Buyer shall retain its rights and remedies to the extent set forth in the Stalking Horse Agreement in the event that the Debtors decide to adjourn the Sale

Hearing.

13. Objections, if any, to the sale of the Equity Interests to the Stalking Horse Buyer or such other Prevailing Purchaser, as applicable, must: (a) be in writing and filed with this

Court; (b) comply with the Bankruptcy Rules; (c) set forth the name of the objecting party, the nature and amount of any claims or interests held or asserted against the Debtors’ estate or

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properties, the basis for the objection, and the specific grounds therefor; and (d) be served upon

(such as to be received by) the following parties (collectively, the “Objection Notice Parties”) by the appropriate deadline established in this Order:

a) counsel for the Debtors, Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036, Attn: Shana Elberg ([email protected]), and Skadden, Arps, Slate, Meagher & Flom LLP, 1440 New York Avenue, N.W., Washington D.C., 20005, Attn: Richard Oliver ([email protected]);

b) the Office of the United States Trustee for the Southern District of New York, 201 Varick Street, Suite 1006, New York, NY 10014, Attn: Paul K. Schwartzberg, Esq. ([email protected]);

c) counsel to the Stalking Horse Buyer, (i) Latham & Watkins LLP, 330 North Wabash Avenue, Suite 2800, Chicago, IL 60611, Attn: Peter P. Knight, Email: [email protected], and (ii) Latham & Watkins LLP, 355 South Grand Avenue, Los Angeles, CA 90071-1560, Attn: Adam E. Malatesta, Email: [email protected];

d) counsel for the DIP Agent, White & Case LLP, 1155 Avenue of the Americas, New York, NY 10036, Attn: Scott Greissman ([email protected]) and Elizabeth Feld ([email protected]), and counsel for the Tranche B Lenders, Akin Gump Strauss Hauer & Feld, LLP, One Bryant Park, New York, NY 10036, Attn: Arik Preis ([email protected]);

e) counsel to the official committee of unsecured creditors appointed in the Chapter 11 Cases, Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY 10153, Attn: Matthew Barr ([email protected]) and Jill Frizzley ([email protected]); and

f) those parties who have formally filed requests for notice in this Chapter 11 Case pursuant to Bankruptcy Rule 2002.

14. Objections, if any, to the relief requested in the Motion to be considered at the

Sale Hearing, must be served upon (such as to be received by) the Objection Notice Parties on or before 4:00 p.m. (EST) on August 4, 2016.

15. Notice of the Motion as provided therein shall be deemed good and sufficient notice, and the requirements of Bankruptcy Rule 6004(a) are satisfied by such notice or otherwise deemed waived. 9

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16. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order shall be immediately effective and enforceable upon its entry.

17. All time periods set forth in this Order shall be calculated in accordance with

Bankruptcy Rule 9006(a).

18. The Debtors are authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Motion.

19. The Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Order.

Dated: New York, New York , 2016

HONORABLE STUART M. BERNSTEIN

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Exhibit 1

Bidding Procedures

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BIDDING PROCEDURES

These “Bidding Procedures” set forth the process by which First Wind California Holdings, LLC (the “Seller”), in the pending chapter 11 bankruptcy cases of the Seller and its affiliated debtors (collectively with the Seller, the “Debtors”) in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”), Case No. 16-10992 (Jointly Administered), is authorized to conduct a sale by auction (the “Auction”) of 100% of the membership and other equity interests of Imperial Valley Solar 2, LLC, a Delaware limited liability company (“IVS2”), and 88FT 8ME, LLC, a Delaware limited liability company (“88FT,” and together with IVS2, the “Subsidiaries;” the equity interests of the Subsidiaries are collectively referred to herein as the “Acquired Equity Interests”), in accordance herewith and with the Bidding Procedures Order (as defined below) (the sale of the Acquired Equity Interests in accordance with these Bidding Procedures, the Bidding Procedures Order (as defined below), and any other applicable Bankruptcy Court orders, a “Qualifying Sale”).

These Bidding Procedures were approved by order of the Bankruptcy Court dated [______], 2016 (the “Bidding Procedures Order”), pursuant to the motion of the Seller and the other Debtors for (a) an order (i) approving bidding procedures in connection with the sale of the Acquired Equity Interests, (ii) approving the form and manner of notice, (iii) scheduling an auction and sale hearing, and (iv) granting related relief; and (b) an order (i) approving the Purchase and Sale Agreement, dated as of July 1, 2016 (together with all exhibits and schedules thereto, and as amended, restated or otherwise modified in accordance with its terms, the “Stalking Horse Agreement”), between the Seller, as the seller, and DESRI MS2 Development, L.L.C., as the buyer (the “Stalking Horse Buyer”), a copy of which was filed with the Bankruptcy Court on [______], 2016, (ii) authorizing the sale of the Acquired Equity Interests free and clear of all liens, claims, and encumbrances (other than those permitted by the Stalking Horse Agreement or the Bidder Agreement (as defined below) of the Prevailing Purchaser (as defined below), as applicable), and (iii) granting related relief (the “Motion”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed them in the Motion and/or the Bidding Procedures Order, as applicable.

Any party desiring to obtain a copy of the Motion, the Stalking Horse Agreement, the Bidding Procedures, and/or the Bidding Procedures Order, in addition to any related motions that may be filed, may do so by accessing the website of the Debtors’ claims and noticing agent, Prime Clerk, at https://cases.primeclerk.com/sunedison, or the Bankruptcy Court’s internet site http://www.nysb.uscourts.gov, for a fee, through an account obtained from the PACER website at http://pacer.psc.uscourts.gov. The documents may also be obtained by contacting counsel to the Debtors, Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036, Attn: Shana Elberg, Annie Li.

The Debtors provide these Bidding Procedures, whereby prospective bidders may qualify for and participate in the Auction, to allow interested parties to compete to make the highest or otherwise best offer for the Acquired Equity Interests.

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1. Confidentiality Agreements

Upon execution of a confidentiality agreement, in form and substance satisfactory to the Debtors, prior to the Bid Deadline any qualified party that wishes to conduct due diligence on the Acquired Equity Interests and/or the Subsidiaries may be granted access to information that has been or will be provided to the other bidders subject to these Bidding Procedures and the Bidding Procedures Order. For a party to be considered a “qualified party,” such party must demonstrate, in the Debtors’ judgment in consultation with the Committee1, that such party has the ability (including, without limitation, from a financial and, to the extent applicable, a regulatory approval perspective) to close the Qualifying Sale following the Bankruptcy Court’s approval of such party’s Qualified Bid as the Prevailing Bid (as defined below). Additionally, the “material information” to be provided to such qualified parties will be information that the Debtors believe is appropriate in light of the Debtors’ need to protect their trade secrets and confidential research, development, and commercial information. For the avoidance of doubt, the Stalking Horse Buyer shall not be required to execute a confidentiality agreement or make any demonstration required under this Paragraph 1; provided, however, that all information (material and otherwise) concerning the Acquired Equity Interests and the Subsidiaries made available to the Stalking Horse Buyer will be promptly made available by the Debtors to any qualified party that enters into a confidentiality agreement with the Debtors.

2. Due Diligence from Bidders

Each party expressing an interest in the Acquired Equity Interests shall comply with all reasonable requests for additional information by the Debtors regarding such party and its contemplated transaction. Failure by a party to comply with such reasonable requests for additional information and due diligence access may be a basis for the Debtors, in consultation with the Committee and DIP Lenders2, to determine that such bidder is not a Qualified Bidder (as defined below).

By submitting a bid, each bidder (excluding the Stalking Horse Buyer except as expressly provided in the Stalking Horse Agreement) shall be deemed to acknowledge and represent that it

1 All references herein to the “Committee” shall be to the legal and financial advisors to the Official Committee of Unsecured Creditors. Such legal and financial advisors shall treat information received pursuant to these Bidding Procedures as “highly confidential” pursuant to any and all applicable non- disclosure and confidentiality agreements, and shall receive and review such information on an “advisors’ eyes only” basis, unless otherwise agreed to by the Committee and the Seller. 2 All references herein to the “DIP Lenders” shall be to the legal and financial advisors to the Administrative Agent (the “DIP Agent”) and the Tranche A Lenders (each as defined in the DIP Credit Agreement (defined below)) and the legal and financial advisors to the Tranche B Lenders (as defined in the DIP Credit Agreement). Such legal and financial advisors shall treat information received pursuant to these Bidding Procedures as “highly confidential” pursuant to any and all applicable non-disclosure and confidentiality agreements, and shall receive and review such information on an “advisors’ eyes only” basis, unless otherwise agreed to by the DIP Lenders and the Seller. 2

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has had an opportunity to conduct due diligence on the Debtors prior to making its bid; that it has relied solely upon its own independent due diligence in making its bid; and that it did not rely upon any written or oral statement, representations, promises, warranties, or guaranties whatsoever, whether express, implied, by operation of law, or otherwise, regarding the Debtors, or the completeness of any information provided in connection therewith.

3. Determination of “Qualified Bidder” Status

To participate in the bidding process to acquire the Acquired Equity Interests and be deemed a “Qualified Bidder,” each potential bidder (or group acting together as a bidder to the extent permitted hereunder and under the Bidding Procedures Order), other than the Stalking Horse Buyer, must deliver to (a) the Debtors, SunEdison, Inc., 600 Clipper Drive, Belmont, CA 94002, Attn: Hy Martin (hy.martin@sunedison.com); (b) counsel for the Debtors, Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036, Attn: Shana Elberg ([email protected]), and Skadden, Arps, Slate, Meagher & Flom LLP, 1440 New York Avenue, N.W., Washington D.C., 20005, Attn: Richard Oliver ([email protected]); (c) financial advisor to the Debtors, Rothschild Inc., 1251 Avenue of the Americas, 33rd Floor, New York, NY 10020, Attn: Homer Parkhill ([email protected]); (d) counsel to the Committee, Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY 10153, Attn: Gavin Westerman ([email protected]) and Jill Frizzley ([email protected]); and (e) counsel for the DIP Agent, White & Case LLP, 1155 Avenue of the Americas, New York, NY 10036, Attn: Scott Greissman ([email protected]) and Elizabeth Feld ([email protected]), and counsel for the Tranche B Lenders, Akin Gump Strauss Hauer & Feld, LLP, One Bryant Park, New York, NY 10036, Attn: Arik Preis ([email protected]); a binding written offer, so as to be received by no later than August 4, 2016 at 5:00 p.m. (EST) (the “Bid Deadline”), that:

(a) states that such bidder offers to purchase the Acquired Equity Interests;

(b) provides evidence satisfactory to the Debtors that such bidder is reasonably likely to satisfy all customary conditions and other requirements for performing under the existing power purchase agreement with respect to the project owned by the Subsidiaries;

(c) includes executed transaction documents, including a definitive purchase agreement and all schedules and exhibits thereto (substantially in the same detail as those attached to the Stalking Horse Agreement filed as Exhibit C to the Motion), signed by an authorized representative of such bidder, pursuant to which such bidder proposes to effectuate a transaction that qualifies as a Qualifying Sale (the “Bidder Agreement”), and such Bidder Agreement shall also include a blacklined copy of the Bidder Agreement marked against the Stalking Horse Agreement to show all changes requested by such bidder (including those related

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to the consideration to be paid for the Acquired Equity Interests and the closing conditions in respect of such transaction);

(d) proposes a purchase price (which consideration may consist of cash or otherwise if permitted by the Debtors in their sole discretion) that is a higher and/or better offer for the Acquired Equity Interests (as compared to the offer of the Stalking Horse Buyer reflected in the Stalking Horse Agreement); provided, however, that an offer shall not be considered a higher and/or better offer unless such offer provides for a purchase price to be paid at the consummation of the transaction that is equal to or greater than:

(i) the Purchase Price under, and as defined in, the Stalking Horse Agreement (the “Initial Stalking Horse Purchase Price”), plus

(ii) the aggregate face amount of all Company Liabilities under, and as defined in, the Stalking Horse Agreement, plus

(iii) a break-up fee equal to $2,400,000 (representing 3.4% of the sum of the immediately preceding clause (i)) (the “Break-Up Fee”), plus

(iv) the aggregate amount of the Expense Reimbursement under, and as defined in, the Stalking Horse Agreement, which amount shall not exceed $800,000 (collectively, the “Reimbursable Expenses”),

provided, however, that any portion of the offered purchase price not to be paid in cash at closing may be appropriately discounted in the Debtors reasonable discretion;

(e) is irrevocable until and unless the Debtors accept a higher or otherwise better Qualified Bid and the bidder is not selected as a Back-Up Bidder (as defined below);

(f) does not request any expense reimbursement, break-up fee, “topping,” termination, contribution, or other similar fee or payment;

(g) (i) provides for replacement or back-to-back letters of credit or posting of adequate cash collateral required for development of the project owned by the Subsidiaries, or (ii) obtains written extensions of the currently outstanding letters of credit securing development of the project owned by the Subsidiaries from the existing providers thereof;

(h) contains such financial and other information that demonstrates to the reasonable satisfaction of the Debtors the bidder’s financial and other capabilities to 4

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consummate the transactions contemplated by the Bidder Agreement in accordance with these Bidding Procedures and the Bidding Procedures Order, which information shall be satisfactory to the Debtors (in consultation with the Committee), including (but not limited to) contact names and numbers for verification of financing sources;

(i) contains such information requested by the Debtors regarding the identity of the entity or entities that will be bidding for the Acquired Equity Interests or otherwise participating in such bid, and the complete terms of any such participation, which information is satisfactory to the Debtors (in consultation with the Committee);

(j) includes evidence of authorization and approval from the bidder’s board of directors (or comparable governing body) with respect to the submission, execution, delivery, and closing of the Bidder Agreement, and financing agreements (or binding commitment letters) and any other ancillary documents or agreements, which evidence is satisfactory to the Debtors;

(k) includes covenants and conditions commercially reasonable for a transaction of this type and acceptable to the Debtors (in consultation with the Committee and the DIP Lenders), but under no circumstances shall a bid be conditioned on the obtaining, or the sufficiency of, financing or any internal or credit committee approval, syndication requirements, or on the outcome or review of due diligence, but may be subject to the accuracy at the closing of specified representations and warranties or the satisfaction at the closing of specified conditions, all of such shall be specifically set forth in the Bidder Agreement; and

(l) is accompanied by a good faith cash deposit in an amount no less than 10% of the total purchase price set forth in the Bidder Agreement, which shall be deposited in an escrow account to be established by the Debtors subject to a customary escrow agreement satisfactory to the Debtors, and which shall be credited against the purchase price paid by the bidder if such bidder is the Prevailing Purchaser (as defined below); provided, however, that, for the avoidance of doubt, the application of this requirement to the Stalking Horse Buyer shall be subject to the terms of the Stalking Horse Agreement.

By submitting a bid, a bidder (other than the Stalking Horse Buyer) shall be deemed to waive the right to assert or seek payment of any “break-up” fee, expense reimbursement, or other post-filing claim, including administrative expense claims, and to the extent otherwise applicable, a substantial contribution claim under section 503 of the Bankruptcy Code, with respect to its bid or the marketing or auction process.

A competing bid meeting all of the above requirements (all of which information shall be shared with the Committee and the DIP Lenders), as may be supplemented or waived by the 5

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Debtors, in consultation with the Committee and the DIP Lenders, shall constitute a “Qualified Bid.” Subject to the other terms and conditions set forth herein, the Debtors shall make a determination, in consultation with the Committee and the DIP Lenders, regarding whether a bid is a Qualified Bid and shall notify all bidders before the Auction whether their bids have been determined to be Qualified Bids. Notwithstanding any provision herein to the contrary, the Stalking Horse Buyer shall constitute a Qualified Bidder and the Stalking Horse Agreement (including any Overbid (as defined below) made in connection therewith) shall constitute a Qualified Bid for all purposes.

Under no circumstances will the Stalking Horse Bidder (or any other bidder) be permitted to review any bids of other bidders, or any information regarding any other bidders, except for the Auction Baseline Bid (as defined below), the terms of any Overbid (as defined below) made at the Auction, and any other bids the Debtors determine to disclose to all Qualified Bidders in connection with the Auction.

4. Modifications of Qualified Bids Prior to Auction

Between the date that the Debtors notify a bidder that it is a Qualified Bidder and the Auction, the Debtors may discuss, negotiate, or seek clarification of any Qualified Bid from a Qualified Bidder. Without the prior written consent of the Debtors (upon consultation with the Committee and the DIP Lenders), a Qualified Bidder (other than the Stalking Horse Buyer to the extent permitted under the Stalking Horse Agreement) may not modify, amend, or withdraw its Qualified Bid, except for proposed amendments to increase the consideration contemplated by, or otherwise improve the terms of, the Qualified Bid, during the period of time such Qualified Bid remains binding as specified herein; provided that any Qualified Bid, including any bid of the Stalking Horse Buyer, may be improved at the Auction as set forth herein.

5. Auction Baseline Bid / No Qualified Bids

On or prior to 10:00 a.m. (EST) one (1) business day before the Auction, the Debtors shall provide each Qualified Bidder and the Committee a copy of the highest or otherwise best Qualified Bid received (such highest or otherwise best Qualified Bid, the “Auction Baseline Bid”), which shall serve as the opening bid at the Auction if more than one Qualified Bid is timely received by the Debtors. If no Qualified Bids (other than the Stalking Horse Agreement) are submitted by the Bid Deadline, the Debtors shall not hold an Auction and shall proceed to obtain Bankruptcy Court approval of the Stalking Horse Agreement as the Prevailing Bid (as defined below) and to consummate the Stalking Horse Agreement in accordance with its terms.

6. Auction

In the event that the Debtors in consultation with the Committee determine that they have received more than one Qualified Bid, the Debtors are authorized to conduct an Auction. Other than as expressly set forth herein, the Debtors may conduct an Auction in the manner that they determine, in consultation with the Committee and the DIP Lenders, will result in the highest or 6

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otherwise best offer for the Acquired Equity Interests. The Auction shall be held on August 9, 2016 at 10:00 a.m. (EST), at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036, or such other location and time as shall be timely communicated to all entities entitled to attend the Auction. The Debtors, the Qualified Bidders, the Committee, the DIP Lenders, and their respective advisors shall be permitted to attend the Auction.

An “Overbid” is any Qualified Bid made by a Qualified Bidder at the Auction subsequent to the Debtors’ announcement of the Auction Baseline Bid. To submit an Overbid at the Auction, a Qualified Bidder must comply with all of the following conditions:

(a) any Overbid shall be made in increments valued at not less than $500,000 greater than the Auction Baseline Bid or then highest or otherwise best Overbid, as applicable;

(b) the Stalking Horse Buyer (or its designee(s)) shall be permitted to bid at the Auction;

(c) any Overbid shall remain open and binding on the Qualified Bidder until and unless (i) the Debtors accept another Overbid that is a higher Qualified Bid for the Acquired Equity Interests, and (ii) such Overbid is not selected as a Back-Up Bid (as defined below); and

(d) to the extent not previously provided, a Qualified Bidder submitting an Overbid must submit, as part of its Overbid, evidence demonstrating such Qualified Bidder’s ability (including, without limitation, from a financial and, to the extent applicable, a regulatory approval perspective) to close the transactions proposed by such Overbid within a reasonable period following the Bankruptcy Court’s approval of the Prevailing Bid as determined by the Debtors, in consultation with the Committee.

In addition to complying with the above requirements, the Auction shall be governed by the following procedures:

(i) the Auction will be conducted openly by the Debtors, and only the Qualified Bidders and their respective advisors shall be entitled to make any subsequent Overbids at the Auction;

(ii) each Qualified Bidder shall be required to represent that it has not engaged in any collusion with respect to the bidding or the sale;

(iii) the Qualified Bidders shall appear in person at the Auction, through a duly authorized representative, or as otherwise agreed to by the Debtors;

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(iv) the bidding shall commence and proceed as determined by the Debtors, in consultation with the Committee and the DIP Lenders;

(v) the bidding at the Auction shall be transcribed or videotaped, at the Debtors’ election;

(vi) all Qualified Bidders shall have the right to submit Overbids and propose additional modifications to the Stalking Horse Agreement or the Bidder Agreement, as applicable, at the Auction; provided that (a) any such modifications to the Stalking Horse Agreement or Bidder Agreement, must comply with these Bidding Procedures (including the requirements for an Overbid) and the Bidding Procedures Order, (b) on an aggregate basis and viewed in whole, shall not be less favorable to the Debtors than such Qualified Bidder’s previous Qualified Bid or Overbid, as applicable, as determined by the Debtors in consultation with the Committee and DIP Lenders, and (c) for the avoidance of doubt, each such additional or modified bid must meet the requirements of a Qualified Bid and Overbid;

(vii) in each round of bidding, the Stalking Horse Buyer (or its designee(s)) shall have the right to submit a credit bid up to the full amount of (i) the Reimbursable Expenses and (ii) the Break-Up Fee;

(viii) the Auction shall continue until the Debtors determine, in consultation with the Committee and the DIP Lenders, that a Qualified Bid or an Overbid, as applicable, is the highest or otherwise best offer from among the Qualified Bids (including Overbids and the last bid of the Stalking Horse Buyer) (the “Prevailing Bid,” and the party or parties that submitted such Prevailing Bid, the “Prevailing Purchaser”), which determination shall be subject to Bankruptcy Court approval;

(ix) in selecting the Prevailing Bid, the Debtors, in consultation with the Committee and the DIP Lenders, may consider all factors, including the amount of the purchase price, the form and total amount of consideration being offered, the likelihood of each Qualified Bidder’s ability to close a transaction and the timing thereof, the form and substance of the purchase agreement requested by each Qualified Bidder, and the net benefit to the Debtors’ estates; and

(xi) the Debtors shall have the ability to decide, at any point prior to the conclusion of the Auction (upon consultation with the Committee and the DIP Lenders), that they are not selling the Acquired Equity Interests; provided that, for the avoidance of doubt, the Stalking Horse Buyer shall retain its rights and remedies to the extent set forth in the Stalking Horse Agreement in the event that the Debtors decide that they are not selling the Acquired Equity Interests.

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7. Sale Hearing

The Prevailing Bid, and the consummation of the transactions contemplated thereby, will be subject to approval by the Bankruptcy Court. The hearing to approve the sale of the Acquired Equity Interests to the Prevailing Purchaser in accordance with the Prevailing Bid (the “Sale Hearing”) is scheduled to take place on August 11, 2016 at 10:00 a.m. (EST) before the Honorable Stuart M. Bernstein, at the United States Bankruptcy Court for the Southern District of New York, One Bowling Green, New York, NY 10004, or at such times thereafter as counsel may be heard. The Sale Hearing may be adjourned from time to time by the Debtors (in consultation with the Committee) without further notice to any other party in interest other than by announcement of the adjournment in open court on the date scheduled for the Sale Hearing or a notice filed with the Bankruptcy Court; provided that, for the avoidance of doubt, the Stalking Horse Buyer shall retain its rights and remedies to the extent set forth in the Stalking Horse Agreement in the event that the Debtors decide to adjourn the Sale Hearing. Unless otherwise required pursuant to the Debtors’ fiduciary duties, the Debtors shall not consider any bids submitted after the conclusion of the Auction.

8. Failure to Consummate Prevailing Bid by the Prevailing Purchaser

If an Auction is conducted, the party with the Qualified Bid or Overbid that is next highest or otherwise best to the Prevailing Bid at the Auction, as determined by the Debtors in consultation with the Committee and the DIP Lenders, shall be required to serve as a back-up bidder (a “Back-Up Bid” and a “Back-Up Bidder,” respectively) and keep such bid open and irrevocable until 11:59 p.m. (EST) on the date that is the earlier of (a) forty-five (45) days after the date of the Sale Hearing, and (b) the closing of the sale transaction with the Prevailing Purchaser. Notwithstanding anything to the contrary herein, the Stalking Horse Buyer shall have the right to determine in its sole discretion whether it will serve as the Back-Up Bidder and on what terms, if any. If the Stalking Horse Buyer does not serve as the Back-Up Bidder, the Debtors, in consultation with the Committee and the DIP Lenders, shall have the right to select the next highest or otherwise best bidder after the Prevailing Bidder at the Auction (other than the Stalking Horse Buyer) as the Back-Up Bidder.

Following the Sale Hearing, if the Prevailing Purchaser fails to consummate a sale in accordance with the Prevailing Bid because of a breach or failure to perform on the part of such Prevailing Purchaser, the Debtors (in consultation with the Committee) are authorized to deem a Back-Up Bidder (or the Stalking Horse Buyer, if the Stalking Horse Agreement, as may be modified by agreement of the Seller and Buyer, then constitutes the highest or otherwise best bid) to be the new “Prevailing Purchaser” and such party’s Back-Up Bid (or the aforementioned Stalking Horse Agreement bid, if applicable) to be the “Prevailing Bid,” and the Debtors are authorized, but not required, to consummate a sale with such Back-Up Bidder in accordance with such Back-Up Bid (or with the Stalking Horse Buyer in accordance with such Stalking Horse Agreement, as applicable) without further order of the Bankruptcy Court. In such case, (a) the defaulting Prevailing Purchaser’s deposit, if any, shall be forfeited to the Debtors, and (b) all

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parties in interest, and the Debtors specifically, reserve the right to seek all available damages from the defaulting Prevailing Purchaser.

Except as otherwise provided herein, all deposits shall be returned to each bidder not selected by the Debtors as the Prevailing Purchaser or a Back-Up Bidder by no later than the fifth (5th) business day following the conclusion of the Sale Hearing. The deposit of a Back-Up Bidder shall be held by the Debtors until the earliest of two (2) business days after (a) forty-five (45) days after the date of the Sale Hearing; and (b) the closing of the Prevailing Bid with the Prevailing Purchaser.

9. Status of Stalking Horse Agreement

Notwithstanding anything in these Bidding Procedures to the contrary, the Stalking Horse Agreement and related transaction documents (including, without limitation, as modified by any Overbid) shall remain in full force and effect until such agreements have terminated in accordance with their respective terms.

10. Consultation Rights

For the avoidance of doubt, the granting of consultation rights to the Committee and DIP Lenders shall not impair or otherwise affect the rights of such Committee or DIP Lenders to object to the decisions or actions of the Debtors and their advisors made in connection with these Bidding Procedures. If a member of the Committee submits a Qualified Bid, the Committee will continue to have the consultation rights set forth herein; provided that the Committee shall exclude such member from any discussions or deliberations regarding the sale of the Acquired Equity Interests and shall not provide any confidential information regarding the sale or provided pursuant to these Bidding Procedures to such member.

Notwithstanding anything to the contrary herein, all rights, claims, interests, benefits, and other protections of the lenders and, as applicable, their respective affiliates, assignees, designees, or partners in their capacities as “DIP Secured Parties” under (a) and as defined in, the Final DIP Order (I) Authorizing Debtors to (A) Obtain Senior Secured, Superpriority, Postpetition Financing Pursuant to Bankruptcy Code Sections 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1), and 364(e) and (B) Utilize Cash Collateral Pursuant to Bankruptcy Code Section 363, and (II) Granting Adequate Protection to Prepetition Secured Parties Pursuant to Bankruptcy Code Sections 361, 363, 363 and 364 entered by the Bankruptcy Court on June 9, 2016 [Docket No. 523] (the “DIP Financing Order”), (b) the Senior Secured Superpriority Debtor-in-Possession Credit Agreement, dated as of April 26, 2016, among SunEdison, Inc., as Borrower, Deutsche Bank AG New York Branch, as Administrative Agent, Deutsche Bank Securities Inc., Barclays Bank PLC, Apollo Credit Opportunity Fund III AIV I LP, Goldman Sachs Bank USA and Macquarie Capital (USA) Inc., as Joint Lead Arrangers and Joint Bookrunners, Wells Fargo Bank, National Association, Royal Bank of Canada, and KeyBank National Association, as L/C Issuers, and the lenders from time to time party thereto (as amended, restated, supplemented or otherwise modified from time to time, the “DIP Credit 10

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Agreement”) and the other DIP Loan Documents (as defined in the DIP Financing Orders), (c) the Bankruptcy Code, and (d) other applicable law, in each case, shall be fully preserved and not limited or otherwise impaired in any respect by these Bidding Procedures.

11. Reservation of Rights; Consent to Jurisdiction

Notwithstanding anything to the contrary in these Bidding Procedures, the Debtors reserve their rights, as they may determine to be in the best interest of their estates and in the exercise of their fiduciary obligations after consultation with the Committee, to: (a) modify the Bidding Procedures or impose, at or prior to the Auction, different and/or additional terms and conditions on the sale of the Acquired Equity Interests, (b) announce at the Auction additional procedural rules that are reasonable under the circumstances for conducting the Auction, (c) determine which bidders are Qualified Bidders, (d) determine which bids qualify as Qualified Bids and Overbids, (e) determine which Qualified Bid is the highest or otherwise best proposal and which is the next highest or otherwise best proposal, (f) determine whether to accept any Qualified Bid or Overbid (other than the Stalking Horse Agreement and any Overbid made by the Stalking Horse Buyer), (g) reject any bid that is (i) inadequate or insufficient, (ii) not in conformity with the requirements of the Bidding Procedures, the Bidding Procedures Order or the requirements of the Bankruptcy Code, or (iii) contrary to the best interests of the Debtors and their estates, and (h) extend the deadlines set forth herein; provided, however, that (i) nothing in these Bidding Procedures shall, or shall be construed to, in any way amend, impair, alter or otherwise modify the terms of the Stalking Horse Agreement (as may be modified by any Overbid) or the Stalking Horse Buyer’s rights thereunder; and (ii) without the prior written consent of the Stalking Horse Buyer, the Debtors shall not modify, or waive compliance (or accept non-compliance) with, any of the following: (A) subsections (c), (d) or (l) of the requirements of a Qualified Bid specified herein; (B) subsection (b) of the requirements of an Overbid specified herein; (C) the right of the Stalking Horse Buyer to credit bid up to the full amount of the Reimbursable Expenses and Break-Up Fee; (D) the right of the Stalking Horse Buyer to determine in its sole discretion whether it will serve as the Back-Up Bidder and on what terms; or (E) this clause (ii) or the immediately preceding clause (i).

The Stalking Horse Buyer, all other Qualified Bidders, and all parties submitting a bid (whether or not constituting a Qualified Bid) shall be deemed to have consented to the core jurisdiction of the Bankruptcy Court to enter an order or orders, which shall be binding in all respects, in any way related to the Seller and its assets, and have waived any right to a jury trial in connection with any disputes relating to the Seller, the Chapter 11 Cases, the Bidding Procedures, the Bidding Procedures Order, the order approving the Prevailing Bid, the Stalking Horse Agreement, the Auction, or the construction and enforcement of the Stalking Horse Agreement or any Bidder Agreement.

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EXHIBIT C

PSA

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PURCHASE AND SALE AGREEMENT

by and among

SUNEDISON, INC.,

as Seller Parent,

FIRST WIND CALIFORNIA HOLDINGS, LLC,

as Seller,

and

DESRI MS2 DEVELOPMENT, L.L.C.

as Buyer

Dated as of July 1, 2016

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TABLE OF CONTENTS

Page

ARTICLE I DEFINITIONS ...... 6

1.01 Definitions...... 6 1.02 Rules of Construction ...... 20

ARTICLE II PURCHASE AND SALE OF EQUITY INTERESTS; CLOSING ...... 21

2.01 Purchase and Sale of Equity Interests ...... 21 2.02 Closing ...... 22 2.03 Closing Deliveries ...... 22 2.04 Purchase Price Allocation ...... 23 2.05 Post-Closing Adjustment to Estimated Purchase Price...... 24 2.06 Post-Closing Adjustment Payment...... 25

ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER PARENT ...... 26

3.01 Organization ...... 26 3.02 Authority; Enforceability ...... 26 3.03 No Conflicts; Consents and Approvals ...... 26 3.04 Brokers ...... 27 3.05 Legal Proceedings ...... 27

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER ...... 27

4.01 Organization ...... 27 4.02 Authority; Enforceability ...... 28 4.03 No Conflicts; Consents and Approvals ...... 28 4.04 Ownership of Interests ...... 29 4.05 Ownership of Project ...... 29 4.06 Capitalization ...... 29 4.07 Legal Proceedings ...... 29 4.08 Compliance with Laws and Governmental Approvals ...... 30 4.09 Material Contracts ...... 30 4.10 Environmental Matters...... 30 4.11 No Material Adverse Effect ...... 31 4.12 Transactions with Affiliates ...... 31 4.13 Financial Statements ...... 31 4.14 No Undisclosed Liabilities ...... 31 4.15 Company Property ...... 32 4.16 Employee Matters ...... 32 4.17 Equity Commitments ...... 33 4.18 Intentionally Omitted ...... 33

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4.19 Lease Payments ...... 33 4.20 Tax Matters ...... 33 4.21 Compliance with Separateness Provisions...... 34 4.22 Brokers ...... 34 4.23 Regulatory Matters...... 34

ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER ...... 34

5.01 Organization ...... 34 5.02 Authority; Enforceability ...... 34 5.03 No Conflicts; Consents and Approvals ...... 35 5.04 Legal Proceedings ...... 35 5.05 Investment Representations ...... 35 5.06 Brokers ...... 35 5.07 Financing...... 35 5.08 No Other Representations ...... 36

ARTICLE VI COVENANTS OF THE PARTIES ...... 36

6.01 Access by Buyer ...... 36 6.02 Interim Period Operations ...... 37 6.03 Good Faith Efforts; Regulatory and Other Approvals ...... 39 6.04 Further Assurances...... 40 6.05 Post-Closing Cooperation ...... 40 6.06 Information Rights ...... 41 6.07 Notification ...... 41 6.08 Resignations ...... 42 6.09 CAISO Request ...... 42 6.10 Termination of Affiliate Contracts ...... 42 6.11 Employees ...... 42 6.12 Exclusivity ...... 43 6.13 Credit Support ...... 43 6.14 Sun Lake Solar/NTR Obligations ...... 46 6.15 Financing Cooperation Covenant ...... 47 6.16 Insurance ...... 48 6.17 [Intentionally Omitted] ...... 48 6.18 [Intentionally Omitted] ...... 48 6.19 Lien, Litigation and Title Search ...... 48 6.20 [Intentionally Omitted] ...... 48 6.21 Waiver ...... 48 6.22 Buyer’s Acknowledgment Regarding “AS IS” Sale ...... 49

ARTICLE VII CONDITIONS TO OBLIGATIONS OF BUYER ...... 50

7.01 Conditions to Obligations of Buyer ...... 50

ARTICLE VIII CONDITIONS TO OBLIGATIONS OF SELLER ...... 52

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8.01 Conditions to Obligations of Seller ...... 52

ARTICLE IX TAX MATTERS...... 53

9.01 Transfer Taxes ...... 53

ARTICLE X TERMINATION ...... 54

10.01 Termination ...... 54 10.02 Effect of Termination ...... 56 10.03 Breakup Fee and Expense Reimbursement...... 56 10.04 Reverse Termination Fee...... 58

ARTICLE XI SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION...... 60

11.01 Survival ...... 60 11.02 Indemnification ...... 60 11.03 Third Party Claims ...... 61 11.04 Limitations on Indemnification ...... 62 11.05 Manner of Payment; Escrow ...... 63 11.06 Remedies Exclusive ...... 64

ARTICLE XII BANKRUPTCY COURT MATTERS ...... 64

12.01 Sale Motion; Other Matters ...... 64 12.02 Private Sale Approval Order ...... 65 12.03 Auction Sale Approval Order ...... 65

ARTICLE XIII INTENTIONALLY OMITTED ...... 66

ARTICLE XIV MISCELLANEOUS ...... 66

14.01 Entire Agreement ...... 66 14.02 Confidentiality ...... 66 14.03 Announcements...... 66 14.04 No Waiver ...... 67 14.05 Amendments ...... 67 14.06 Notices ...... 67 14.07 Captions ...... 68 14.08 Severability ...... 68 14.09 Assignment ...... 68 14.10 Counterparts; Third Party Beneficiaries ...... 69 14.11 Disclosure ...... 69 14.12 Specific Performance ...... 69 14.13 Governing Applicable Law ...... 70 14.14 Jurisdiction, Waiver of Jury Trial ...... 70 14.15 Intentionally Omitted ...... 70 iii

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14.16 Intentionally Omitted ...... 70 14.17 Debt Financing Party Arrangements ...... 70

EXHIBITS

Exhibit A Project LC Obligations Exhibit B Private Sale Approval Order Exhibit C Sale Procedures Order Exhibit D [Intentionally Omitted] Exhibit E Form of Escrow Agreement Exhibit F Sale Motion Provisions

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PURCHASE AND SALE AGREEMENT

This PURCHASE AND SALE AGREEMENT is made as of July 1, 2016 (including all exhibits and schedules hereto, this “Agreement”) by and among (a) First Wind California Holdings, LLC, a Delaware limited liability company (“Seller”), (b) SunEdison, Inc., a Delaware corporation (“Seller Parent” and together with Seller, “Seller Parties”), and (c) DESRI MS2 Development, L.L.C. (“Buyer”). Buyer and Seller Parties are referred to herein, individually, as a “Party” or, collectively, as the “Parties.”

RECITALS

WHEREAS, Seller owns one hundred percent (100%) of the limited liability company or other equity interests (collectively, the “Equity Interests”) of (i) Imperial Valley Solar 2, LLC, a Delaware limited liability company (“IVS2”), and (ii) 88FT 8ME LLC, a Delaware limited liability company (“88FT”, and together with IVS2, the “Companies”);

WHEREAS, the Seller Parties have commenced cases (each, a “Seller Chapter 11 Case,” and collectively, the “Sellers’ Chapter 11 Cases”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) by filing voluntary petitions for relief with the United States Bankruptcy Court for Southern District of New York (the “Bankruptcy Court”) on April 21, 2016 (the “Petition Date”);

WHEREAS, on June 9, 2016, the Bankruptcy Court entered the Final Order (I) Authorizing Debtors to (A) Obtain Senior Secured, Superpriority, Postpetition Financing Pursuant to Bankruptcy Code Sections 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1), and 364(e) and (B) Utilize Cash Collateral Pursuant to Bankruptcy Code Section 363, and (II) Granting Adequate Protection to Prepetition Secured Parties Pursuant to Bankruptcy Code Sections 361, 362, 363 and 364 [Docket No. 523] (the “DIP Order”) approving a debtor-in- possession credit facility (the “DIP Facility”) among the DIP Borrower, the DIP Agent, DBSI, the DIP Arrangers, the L/C issuers and the DIP Lenders (each as defined in the DIP Order as in effect immediately upon its entry by the Bankruptcy Court);

WHEREAS, Seller has agreed to transfer to Buyer, and Buyer has agreed to purchase, pursuant to Section 363 of the Bankruptcy Code, the Equity Interests from Seller, upon the terms and subject to the conditions contained in this Agreement, including obtaining the Sale Approval Order;

WHEREAS, the Parties acknowledge and agree that the purchase by Buyer of the Equity Interests, on the terms and conditions set forth herein, are being made at arm’s length and in good faith and without intent to hinder, delay or defraud the creditors of Seller or its Affiliates; and

WHEREAS, subject to the terms and conditions of this Agreement, Buyer desires to purchase from Seller, and Seller desires to sell, assign, transfer, convey and deliver to Buyer all of Seller’s right, title and interest in and to the Equity Interests.

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NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and agreements in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS

1.01 Definitions. As used in this Agreement, the following defined terms have the meanings indicated below:

“2014 Non-Solicitation Agreement” means collectively, (i) Non-Competition and Non- Solicitation Agreement, dated as of November 17, 2014, by and among D. E. Shaw MWP Acquisition Holdings, L.L.C., Seller Parent, and TerraForm Power, LLC and (ii) Non- Competition and Non-Solicitation Agreement, dated as of November 17, 2014, by and among Madison Dearborn Capital Partners IV, L.P., Seller Parent, and TerraForm Power, LLC, in each case as amended by that certain Omnibus Amendment to Non-Competition and Non-Solicitation Agreements, dated as of December 29, 2015, by and among Seller Parent, TerraForm Power, LLC, D. E. Shaw MWP Acquisition Holdings, L.L.C., D. E. Shaw Composite Holdings, L.L.C. and Madison Dearborn Capital Partners IV, L.P.

“88FT” has the meaning given to that term in the recitals to this Agreement.

“8ME” means 8minutenergy Renewables, LLC, a Delaware limited liability company.

“Accounting Referee” has the meaning given to that term in Section 2.05(c).

“Action” means any action, suit, proceeding, arbitration, any claim for avoidance or Governmental Authority investigation.

“Adjustment Amount” has the meaning given to that term in Section 2.06(a).

“Affiliate” means any Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the Person specified. For purposes of this definition, “control” of a Person means the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or ownership interests, by Contract or otherwise, and specifically with respect to a corporation, partnership or limited liability company, means direct or indirect ownership of 50% or more of the voting securities in such corporation or of the voting interest in such partnership or limited liability company. Notwithstanding the foregoing, in no event shall either of TERP or Terraform Global, Inc. or any of their respective Subsidiaries be deemed an Affiliate of any of the Seller Parties or the Companies.

“Agreement” has the meaning given to that term in the preamble to this Agreement.

“Agreement of Indemnity” has the meaning given to that term in Section 6.13(d).

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“Alternative Transaction” means any of the following: (i) a transaction or series of transactions pursuant to which one or more Seller Parties or their respective Affiliates, whether in accordance with the Bidding Procedures (if applicable) or otherwise, transfer, purport to transfer or would transfer, in each case, directly or indirectly, any of the Equity Interests or any other material assets (including Equity Securities) of any Company to any Person other than Buyer (or its assigns in accordance with Section 14.09), (ii) the filing of a plan of reorganization that does not effectuate the sale of the Equity Interests to Buyer (or its assigns in accordance with Section 14.09), or (iii) any direct or indirect acquisition, sale, liquidation, divestiture, public offering, recapitalization, business combination or reorganization, whether in one transaction or a series of transactions (including by merger, acquisition, business combination or other transaction), of or involving, in each case, directly or indirectly, any of the Equity Interests or material assets of any Company, other than the Transactions, in each case other than involving Buyer or an Affiliate of Buyer as purchaser. The first such transaction in a series of transactions described above shall be deemed the Alternative Transaction for purposes of this Agreement and, if applicable, the Bidding Procedures.

“Ancillary Agreements” means the other documents and agreements to be delivered pursuant to this Agreement.

“Applicable Date” means the date on which a Company’s assets were acquired by Seller Parent or its Affiliates from a third party.

“Applicable Laws” means all applicable laws, statutes, rules, regulations, ordinances and other pronouncements having the effect of law of the United States, any foreign country or any state, county, city or other political subdivision thereof or of any Governmental Authority.

“Assumed Liabilities” means Liabilities arising in, and solely to the extent relating to, the period from and after the Closing Date for performance under Contracts at any Company of any obligation that is executory and is first to be performed after Closing, excluding (i) any Liability to NTR or its Affiliates in respect of the Agreement (as defined in the NTR Letter Agreement) in excess of $7,500,000, (ii) any Liability in connection with the Equinix PPA or (iii) any obligation or other Liability under any such Contract arising out of and solely to the extent relating to any action, inaction, event or circumstance existing prior to Closing.

“Auction” has the meaning given to that term in the Sale Procedures Order.

“Auction Event” means the occurrence of any of the following: (i) the Trigger Date, if the Bankruptcy Court has not entered a Private Sale Approval Order by such date, (ii) the Bankruptcy Court’s denial of the relief requested in the Sale Motion regarding entry of the Private Sale Approval Order, or (iii) the Bankruptcy Court’s ruling on the record following a hearing on the Sale Motion that the Private Sale Approval Order will not be entered; provided that, prior to the occurrence of any of the foregoing, the Seller shall not have breached its obligations hereunder, including, without limitation, Section 6.03(d).

“Auction Sale Approval Order” means an Order of the Bankruptcy Court that is substantially similar to the Private Sale Approval Order (provided, however, that such Auction Sale Approval Order shall incorporate certain customary provisions relating to the Auction

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process) and that approves the sale under this Agreement after an Auction, as Buyer and Seller may have each approved in its sole and absolute discretion, and which Order shall have become a Final Order; provided, however, that Buyer may, in its sole and absolute discretion, waive the requirement that the Auction Sale Approval Order be a Final Order.

“Auction Sale Hearing” means the hearing before the Bankruptcy Court on the Sale Motion in respect of the relief set forth in the Auction Sale Approval Order in accordance with the terms hereof.

“Bankruptcy Code” has the meaning given to that term in the recitals to this Agreement.

“Bankruptcy Court” has the meaning given to that term in the recitals to this Agreement.

“Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure.

“Bid Protections” means the bid protections in favor of the Buyer, including the Breakup Fee and Expense Reimbursement, set forth in this Agreement and the Bidding Procedures and approved by the Sale Procedures Order.

“Bidding Procedures” means those certain bidding procedures set forth in Exhibit 1 to the Sale Procedures Order, with only such changes as may be in form and substance acceptable to Buyer and Seller in their sole and absolute discretion (except those changes permitted under the terms of the Bidding Procedures).

“Breakup Fee” means an amount in cash equal to $2,400,000.

“Business Day” means a day other than Saturday, Sunday or any day on which banks located in New York, New York are authorized or obligated to close.

“Buyer” has the meaning given to that term in the preamble to this Agreement, and its permitted successors and assigns.

“Buyer Group” has the meaning given to that term in Section 10.04(b).

“Buyer Guarantor” means D. E. Shaw Renewable Investments, L.L.C., a Delaware limited liability company.

“Buyer Indemnified Taxes” means (a) any Taxes of any Company for taxable periods (or portions thereof) beginning after the Closing Date and (b) any applicable Transfer Taxes arising out of or in connection with the Transactions contemplated by this Agreement that are the responsibility of Buyer pursuant to Section 9.01.

“CAISO” has the meaning given to that term in Section 6.09.

“Cap” has the meaning given to that term in Section 11.04(a).

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“Centinela CTA” means the Shared Facilities Agreement, dated October 1, 2013, among Centinela Solar Energy, LLC, CSolar, IVS1, and LSP Centinela Services, LLC.

“Claims” has the meaning given to such term in Section 6.21.

“Closing” means closing of the transactions contemplated by Section 2.01.

“Closing Date” has the meaning given to that term in Section 2.02.

“Closing Statement” has the meaning given to that term in Section 2.05(a).

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

“Companies” has the meaning given to that term in the recitals to this Agreement.

“Company Contracts” has the meaning given to that term in Section 4.09(a).

“Company Liabilities” means, collectively, all Liabilities (individually or in the aggregate) of any Company as of Closing, other than Assumed Liabilities, including any other payments or Liabilities required to be made (and not actually made) by any Company hereunder at or prior to Closing, as well as any costs or expenses related to the Transactions of any Company and any payments owing or other Liabilities of any Company to or for the benefit of Seller or its Affiliates, including the Liabilities set forth on Schedule 1.01(a).

“Company Liabilities Payoff Evidence” has the meaning given to that term in Section 2.01(d).

“Company Securities” has the meaning given to that term in Section 4.06(a).

“Confidential Information” means all non-public, confidential or proprietary information relating to any Company which is delivered, disclosed or furnished by or on behalf of such Company to Buyer or its Representatives, and shall also be deemed to include notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by Buyer or its Representatives to the extent containing, reflecting or based upon, in whole or in part, such information delivered, disclosed or furnished to Buyer or its Representatives pursuant to Section 6.01(a) or Section 6.06. Notwithstanding any other provision hereof, the term Confidential Information shall not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Buyer or its Representatives in breach of Section 6.01(a) or Section 6.06, (ii) was within the possession of Buyer or its Representatives prior to it being furnished to Buyer by or on behalf of any Company, provided that the source of such information was not known by Buyer to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, such Company with respect to such information (iii) becomes available to Buyer or its Representatives from a source other than such Company, provided that such source is not known by Buyer to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, such Company with respect to such information or (iv) is independently developed by or for Buyer or its Representatives without reference to or use of the Confidential Information.

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“Contract” means any contract, agreement, lease, license, evidence of indebtedness, mortgage, indenture, security agreement or other legally binding arrangement.

“Credit Support Instruments” means those certain guarantees, letters of credit, bonds or other credit support arrangements set forth on Schedule 1.01(b).

“CSolar” means CSolar IV South, LLC.

“CSolar CTA” means the Co-Tenancy and Shared Use Agreement, dated September 28, 2012, by and between CSolar, IVS and IVS1, as amended, restated or otherwise modified in accordance with its terms.

“Debt Commitment Letter” means the debt commitment letter, as amended, supplemented or replaced in compliance with this Agreement pursuant to which the Debt Financing Parties party thereto have agreed, subject to the conditions precedent set forth therein, to provide or cause to be provided the debt financing set forth therein for the purposes of financing the Transactions.

“Debt Financing” means the debt financing to be incurred pursuant to the Debt Commitment Letter.

“Debt Financing Party” means the lenders and agents that have committed to provide, arrange or otherwise enter into any financing agreement, credit agreement, joinder agreement or indenture, the proceeds of which may directly or indirectly fund Buyer’s obligations under the transactions contemplated by this Agreement, together with their Affiliates, successors and assigns, and the equityholders, members, partners, officers, directors, employees, consultants, agents, advisors and representatives of the foregoing.

“Debtor” means all debtors in the Sellers’ Chapter 11 Cases.

“Deductible” has the meaning given to that term in Section 11.04(a).

“DIP Administrative Agent” has the meaning given to that term in the definition of “LC Lenders”.

“DIP Facility” has the meaning given to that term in the recitals to this Agreement.

“DIP Lenders” shall mean the “DIP Secured Parties” as defined in the DIP Order as in effect immediately following the entry thereof, and for purposes of this Agreement such definition shall also include such parties in their capacities as Prepetition Secured Parties under the respective Prepetition Debt Documents.

“DIP Order” has the meaning given to that term in the recitals to this Agreement.

“Disclosure Schedules” has the meaning given to that term in the preamble to ARTICLE IV of this Agreement.

“End Date” has the meaning given to that term in Section 10.01(a)(v).

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“Environmental Laws” means any Applicable Law, Governmental Approval, and any other order or binding agreement with any Governmental Authority: (a) relating to pollution (or the cleanup thereof) or the protection of natural resources, endangered or threatened species, or the environment (including ambient air, soil, surface water or groundwater, or subsurface strata); (b) human health and safety, including occupational safety; (c) any release or threatened release, including investigation, remediation, or any other action to address such release or threatened release of any Hazardous Materials; or (d) the manufacture, processing, distribution, use, treatment, storage, release, transport, disposal or handling of Hazardous Materials. The term “Environmental Law” includes the following (including their implementing regulations and any state analogs): the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et seq.; the Toxic Substances Control Act of 1976, as amended, 15 U.S.C. §§ 2601 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Clean Air Act of 1966, as amended by the Clean Air Act Amendments of 1990, 42 U.S.C. §§ 7401 et seq.; and the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. §§ 651 et seq.

“Equinix PPA” means that certain Renewable Energy Purchase Agreement, dated as of September 4, 2015, by and between Equinix (US) Enterprises, Inc. and IVS2.

“Equity Interests” has the meaning given to that term in the recitals to this Agreement.

“Equity Securities” means capital stock, partnership or membership interests or units (whether general or limited), and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of the issuing entity.

“Escrow Account” means an account at the Escrow Agent into which the Escrow Amount is deposited at the Closing in accordance with Section 2.01(c)(ii) and maintained in accordance with the Escrow Agreement.

“Escrow Agent” means JPMorgan Chase Bank, N.A.

“Escrow Agreement” means an agreement substantially in the form of Exhibit E by and among Buyer, one or more Seller Parties and the Escrow Agent pursuant to which the Escrow Amount shall be held and distributed.

“Escrow Amount” has the meaning given to that term in Section 2.01(c)(ii).

“Escrow Funds” means, at any time, the portion of the Escrow Amount then remaining in the Escrow Account.

“Estimated Closing Statement” has the meaning given to that term in Section 2.01(d).

“Estimated Company Liabilities” has the meaning given to that term in Section 2.01(d).

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“Estimated Purchase Price” has the meaning given to that term in Section 2.01(d).

“Expense Reimbursement” means the sum of all reasonable and documented out-of- pocket costs, fees, and expenses incurred or to be incurred by the Buyer or its Affiliates in connection with, or otherwise related to, the acquisition of any of the Company Group Entities from the Seller Parties or their Affiliates, including reasonable and documented fees, costs, and expenses of any professionals (including financial advisors, outside legal counsel, accountants, experts, and consultants) retained by or for the benefit of the Buyer or its Affiliates in connection with or related to any of the foregoing, provided, that in no event shall such sum exceed $800,000; provided, however, that in no event shall such sum include amounts relating to (i) any prior executed and delivered definitive agreements between the parties, or (ii) the Buyer’s financing efforts related to this Agreement or otherwise.

“Filing Date” has the meaning given to that term in Section 10.01(a)(vii)(1).

“Final Allocation” has the meaning given to that term in Section 2.04(b).

“Final Order” means an order or judgment of the Bankruptcy Court or any other court of competent jurisdiction entered by the Clerk of the Bankruptcy Court or such other court on the docket in any Seller Chapter 11 Case or the docket of such other court, which has not been modified, amended, reversed, vacated or stayed and as to which (i) the time to appeal, petition for certiorari, or move for a new trial, reargument or rehearing has expired and as to which no appeal, petition for certiorari or motion for new trial, reargument or rehearing shall then be pending or (ii) if an appeal, writ of certiorari, new trial, reargument or rehearing thereof has been sought, such order or judgment of the Bankruptcy Court or other court of competent jurisdiction shall have been affirmed by the highest court to which such order was appealed, or certiorari shall have been denied, or a new trial, reargument or rehearing shall have been denied or resulted in no modification of such order, and the time to take any further appeal, petition for certiorari or move for a new trial, reargument or rehearing shall have expired, as a result of which such order shall have become final in accordance with Rule 8002 of the Bankruptcy Rules; provided, that the possibility that a motion under Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be filed relating to such order, shall not cause such order not to be a Final Order.

“Final Resolution Date” has the meaning given to that term in Section 2.05(c).

“Financial Statements” has the meaning given to that term in Section 4.13.

“Financing Agreement” means any credit or loan agreement to which a Company is a borrower relating to non-recourse indebtedness provided to such Company to finance the construction of the Project.

“FIRPTA Certificate” has the meaning given to that term in Section 2.03(a)(vii).

“Fundamental Representations” means (i) with respect to Seller Parties, the representations and warranties in Sections 3.01, 3.02, 3.04, 4.01, 4.02, 4.04, 4.05, 4.06, 4.12, 4.14, 4.17, 4.20, 4.21 and 4.22 and (ii) with respect to Buyer, the representations and warranties in Sections 5.01, 5.02 and 5.06.

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“GAAP” means generally accepted accounting principles in the United States, consistently applied throughout the specified periods.

“Governmental Approval” means any authorization, consent, approval, license, permit, franchise, tariff, certificate of authority, registration, rate, certification, agreement, directive, waiver, exemption, variance, other similar consent or Order of any Governmental Authority.

“Governmental Authority” means any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any governmental authority, agency, department, board, commission or instrumentality of the United States or any foreign country, any state or local body of the United States or any foreign country or any political subdivision of any of the foregoing, and any tribunal, court or arbitrator(s) of competent jurisdiction.

“Hazardous Materials” means any pollutant, contaminant, hazardous substance, hazardous waste, medical waste, special waste, toxic substance, petroleum or petroleum-derived substance, waste or additive, PCBs, radioactive material or other compound, element, material or substance in any form (including products) regulated by or under any Environmental Law.

“Indebtedness” means all obligations to any Person (a) for borrowed money, (b) evidenced by notes, bonds, debentures or similar instruments, (c) for the deferred purchase price of goods or services (other than trade payables or accruals incurred in the ordinary course of business), (d) under capital leases, (e) any obligation to reimburse any bank or other Person in respect of amounts paid or payable under a standby letter of credit or (f) in the nature of a guaranty of any of the obligations described in clauses (a) through (e) above of another Person.

“Indemnified Party” means the party seeking indemnification under Article XI of this Agreement.

“Indemnifying Party” means the party against whom indemnity is to be sought under Article XI of this Agreement.

“Interim Period” has the meaning given to that term in Section 6.01.

“IVS” Imperial Valley Solar, LLC, a Delaware limited liability company.

“IVS1” means Imperial Valley Solar 1, LLC, a Delaware limited liability company.

“IVS2” has the meaning given to that term in the recitals to this Agreement.

“IVS2 PPA” means the Renewable Power Purchase and Sale Agreement, dated July 31, 2014, between Southern California Edison Company and IVS2 (as successor-in-interest to 88FT), as amended.

“IVS3” means Imperial Valley Solar 3, LLC, a Delaware limited liability company.

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“IVS3/IVS4/Sun Lake Solar PSA” means the Purchase and Sale Agreement, dated concurrently herewith, by and among Seller, Seller Parent and 93LF 8me LLC, a Delaware limited liability company.

“IVS4” means Imperial Valley Solar 4, LLC, a Delaware limited liability company.

“Knowledge” means with respect to any Seller Party, the knowledge (after due inquiry of direct reports) of any of Hy Martin and Patrick Cook and the actual knowledge (without any duty of inquiry) of Ilan Daskal and John Dubel.

“Law” means all federal, state, provincial, local, municipal, foreign or other law, statute, legislation, constitution, principal of common law, ordinance, code, edict, decree, proclamation, treaty, rule, regulation, ruling, directive, restriction, order, approval, judgment, injunction, writ, award, pronouncement or requirement of, or issued, promulgated, enforced or entered by, any and all Governmental Authority, or court of competent jurisdiction, or other legal requirement or rule of law.

“LC Fee” has the meaning given to that term in Section 6.13(a).

“LC Intercreditor Agreement” has the meaning given to that term in Section 6.13(a).

“LC Issuers” means the issuers of the Project LCs.

“LC Lenders” means, collectively, (a) the LC Issuers, (b) the DIP Lenders that have participation obligations and/or commitments in respect of the Project LCs, and (c) the Administrative Agent (the “DIP Administrative Agent”) and any other Agent, in each case, under, and as defined in, the DIP Facility, in its capacity as Administrative Agent, or in their respective other capacities as Agents, as applicable, on behalf of the other LC Lenders.

“LC Longstop Date” has the meaning given to that term in Section 6.13(a).

“LC Return Documents” has the meaning given to that term in Section 6.13(a).

“LC Security Documents” has the meaning given to that term in Section 6.13(a).

“Lender Group” has the meaning given to that term in Section 10.04(b).

“LGIA” means the Standard Large Generator Interconnection Agreement, dated August 5, 2009, among San Diego Gas & Electric Company, the California Independent System Operator Corporation, IVS, IVS1, IVS2, IVS3, and IVS4, as amended.

“Liabilities” means any and all obligations or other liabilities of a Person, including all “claims” as such term is defined in Section 101(5) of the Bankruptcy Code.

“Lien” means any lien (statutory or otherwise), encumbrance, interest, Action, right, demand, charge, mortgage, deed of trust, option, pledge, security interest or similar interests, hypothecations, easements, rights of way, restrictive covenants, encroachments, rights of first or last negotiation, rights of first and last offer or refusal, preemptive rights, judgments, conditional

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sale or other title retention agreements and other impositions, imperfections or defects of title or restrictions on transfer or use of any nature whatsoever (whether known or unknown, secured or unsecured or in the nature of setoff or recoupment, choate or inchoate, filed or unfiled, scheduled or unscheduled, noticed or unnoticed, recorded or unrecorded, perfected or unperfected, allowed or disallowed, contingent or noncontingent, liquidated or unliquidated, matured or unmatured, material or nonmaterial, disputed or undisputed, whether arising prior to or subsequent to the commencement of any Seller Chapter 11 Case or any other affiliated chapter 11 case of any other Debtor, and whether imposed by agreement, understanding, Law, equity, or otherwise, including claims otherwise arising under doctrines of successor liability).

“Limited Guaranty” means that certain Guaranty, dated as of the date hereof, by the Buyer Guarantor in favor of Seller.

“Loss” or “Losses” has the meanings given to each such term in Section 11.02.

“Material Adverse Effect” means any change, development, event, effect or occurrence (“Effect”) that, individually or in the aggregate, is or would reasonably be expected to be materially adverse to (i) the ability of the Seller Parties to perform any obligations under this Agreement, including their obligations to complete Transactions, or (ii) the business, assets, results of operations or financial condition of the Companies, taken as a whole; provided, however, that for purposes of this clause (ii), any Effect attributable to (a) any changes affecting the solar or wind power industry generally, (b) any adoption, implementation, promulgation, repeal, modification, reinterpretation or proposal of any Order, protocol, government program, industry standard or change of federal Applicable Law of or by any federal Governmental Authority, in each case, generally applicable in the United States, (c) any change in wholesale or retail electric power prices, (d) any change in general regulatory or political conditions, including any engagement of hostilities, act of war or terrorist activity or any change imposed by a Governmental Authority associated with national security or any natural disasters, (e) any change in GAAP, (f) the announcement, pendency or consummation of the transactions contemplated by this Agreement or the Ancillary Agreements, (g) any action taken by the Companies or Seller that is required pursuant to this Agreement, (h) any action taken (or omitted to be taken) at the specific request of Buyer, (i) any failure by the Companies to meet any projections or forecasts for any period occurring on or after the date hereof (but, for the avoidance of doubt, not the underlying cause of any such failure), (j) any change or development in any financial, banking or securities market (including any increased interest rates or other costs for, or reduction in the availability of, financing or suspension of trading in, or limitation on prices for, securities on a securities market (including an over-the- counter market), exchange or trading platform) or the economy in general, or (k) the Sellers’ Chapter 11 Cases, shall, in each case, be excluded from such determination, except in the event the Effect of such changes or events attributable to the foregoing subclause (a), (b), (d), (e) or (j) would reasonably be expected to have a disproportionate impact on the Companies, taken as a whole, relative to other solar development companies operating in the market in which the Companies operate (but only to the extent of the incremental disproportionate impact).

“MS3 Project” means the approximately 245 MWac photovoltaic solar project currently under development by 8ME and its Affiliates in Imperial County, California commonly referred to as Mount Signal Solar 3.

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“NTR” means Imperial Valley Solar Holdings, LLC.

“NTR Letter Agreement” means that certain partially executed letter agreement, dated March 27, 2016, among NTR; Sun Lake Solar; IVS; Buyer; and 93LF 8ME LLC.

“Objection Notice” has the meaning given in Section 2.05(b).

“Order” means any final writ, judgment, decree, injunction or similar order of any Governmental Authority.

“Organizational Documents” means, with respect to any Person as of any point in time, any charter, certificate of incorporation, articles of association, bylaws, partnership agreement, operating agreement or similar formation or governing documents and instruments, as amended or modified to such point in time.

“Party” and “Parties” have the meanings given to those terms in the preamble to this Agreement.

“Permitted Lien” means (a) any Lien for Taxes of the applicable Company not yet due or delinquent or that are being contested in good faith by appropriate proceedings and as to which adequate reserves have been established by the applicable Company in accordance with GAAP; (b) any Lien arising in the ordinary course of business by operation of Applicable Law with respect to a Liability that is not yet due or delinquent or that is being contested in good faith; (c) any purchase money Lien arising in the ordinary course of business; (d) zoning and planning designations by any Governmental Authority and other similar rights of any Governmental Authority to regulate any property; (e) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security Applicable Laws; (f) any Lien that is released on or prior to the Closing; (g) statutory or common law Liens in favor of carriers, warehousemen, mechanics and materialmen, and statutory or common law Liens to secure claims for labor, materials or supplies arising in the ordinary course of business which are not delinquent; (h) easements, rights-of-way, encroachments, defects or irregularities in title and other encumbrances on real property that either (i) do not materially interfere with the ordinary conduct of business of the Companies or the Project as it is proposed to be constructed and operated or (ii) are described in a mortgage policy of title insurance or survey with respect to any of the properties made available to Buyer; (i) interests of grantors pursuant to easements and similar instruments and interests of landlords, but only to the extent such easements and instruments are reflected in the Title Policy or recorded; (j) statutory or contractual Liens of landlords on the interests of tenants (other than as a result of a breach or default of such tenant); (k) Liens on the landlord’s or prior landlord’s or grantor’s interests; (l) Liens created by Buyer; and (m) Liens required under any Contracts or Governmental Approvals, not exceeding $100,000 in the aggregate.

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

“Personal Property” has the meaning given to that term in Section 4.15(f).

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“Petition Date” has the meaning given to that term in the recitals to this Agreement.

“Prepetition Debt Documents” has the meaning given to such term in the DIP Order as in effect immediately upon its entry by the Bankruptcy Court.

“Prepetition Secured Parties” has the meaning given to such term in the DIP Order as in effect immediately upon its entry by the Bankruptcy Court.

“Prevailing Purchaser” has the meaning given to that term in the Bidding Procedures.

“Private Sale Approval Order” means an Order of the Bankruptcy Court approving the sale of the Equity Interests without an Auction, in the form attached hereto as Exhibit B with such changes as Buyer and Seller may have each approved in their sole and absolute discretion, and which Order shall have become a Final Order; provided, however, that Buyer may, in its sole and absolute discretion, waive the requirement that the Private Sale Approval Order be a Final Order.

“Private Sale Hearing” means the hearing before the Bankruptcy Court on the Sale Motion in respect of the relief set forth in the Private Sale Approval Order or Sale Procedures Order, as applicable in accordance with the terms hereof.

“Project” means the approximately 201 MWac photovoltaic solar project currently under development by Seller and its Affiliates in Imperial County, California commonly referred to as Mount Signal Solar 2.

“Project LC/Surety Bond Obligations” means, in respect of any Project LC or the Surety Bond, only the applicable reimbursement obligations and fees, interest (including, if applicable, default interest), fronting fees and other amounts payable with respect thereto set forth on Exhibit A, provided that Project LC/Surety Bond Obligations shall not include (i) obligations in respect of amounts (if any) drawn under any Project LC or the Surety Bond prior to the Closing, or (ii) any letter of credit fees, interest (including, if applicable, default interest), fronting fees or other amounts accrued on any Project LC prior to the Closing.

“Project LCs” has the meaning given to that term in Section 6.13(a).

“Proposed Allocation” has the meaning given to those terms in Section 2.04(a).

“PSA Related Parties” has the meaning given to such term in Section 14.17(b).

“Purchase Price” has the meaning given to those terms in Section 2.01(b).

“Qualified Bid” has the meaning given to that term in the Bidding Procedures.

“Qualified Bidder” has the meaning given to that term in the Bidding Procedures.

“Real Property” has the meaning given to that term in Section 4.15(a).

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“Representatives” means, as to any Person, its officers, directors, employees, partners, members, stockholders, counsel, accountants, financial advisers, engineers and consultants.

“Reverse Termination Fee” has the meaning given to that term in Section 10.04(a).

“Sale Approval Order” means the Private Sale Approval Order or, in the event of an Auction Event, the Auction Sale Approval Order.

“Sale Motion” means the motion of the Debtors pursuant to Bankruptcy Code Sections 105(a), 363, 503 and 507, Bankruptcy Rules 2002, 6004 and 9007 for entry by the Bankruptcy Court of (i) the Private Sale Approval Order or (ii) in the event of an Auction Event, the Sale Procedures Order and Auction Sale Approval Order, which motion shall include the language set forth on Exhibit F and otherwise be in form and substance reasonably acceptable to each of Seller and Buyer.

“Sale Procedures Order” means an Order of the Bankruptcy Court, in the form attached hereto as Exhibit C with such changes as Buyer and Seller may have approved in their sole and absolute discretion, and which Order shall have become a Final Order, approving and authorizing, among other matters, (i) the treatment and payment of the Breakup Fee and the Expense Reimbursement in accordance with Section 10.03, (ii) the applicable Debtors’ execution and performance under this Agreement (except for such authorization required pursuant to the Sale Approval Order), and (iii) the Buyer’s right to exercise its rights and remedies under, and in accordance with, this Agreement notwithstanding 11 U.S.C. § 362 or other provisions of the Bankruptcy Code and Bankruptcy Rules that may impair such rights; provided, however, that the Buyer may waive the requirement that the Sale Procedures Order be a Final Order in writing in its sole and absolute discretion.

“Seller” has the meaning given to that term in the preamble to this Agreement.

“Seller Action Letter” means that certain letter agreement, dated as of March 16, 2016, by and between certain Affiliates of Buyer, 8ME and Seller in respect of the Seller Initiated Actions (as defined therein).

“Seller Group” means the Seller Parties, the former, current and future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees thereof, and any future holders of any equity, partnership or limited liability company interest, controlling persons, management companies, directors, officers, employees, agents, attorneys, representatives, Affiliates, members, managers, general or limited partners, or shareholders of any of the foregoing.

“Seller Indemnified Taxes” means (a) Taxes of the Companies for taxable periods (or portions thereof) ending on or prior to the Closing Date, (b) Taxes of Seller and its Affiliates (other than the Companies), (c) Taxes of any Person imposed on any Company as a result of such Company being a member of an affiliated, combined, consolidated or unitary group on or prior to the Closing Date (including pursuant to Treasury Regulations Section 1.1502-6 or any similar state or local Tax Law), (d) Taxes of any Person imposed on Buyer or any Company as a transferee or successor or otherwise by operation of Law or by Contract (other than any such

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16-10992-smb Doc 695-3 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit C Pg 21 of 185 agreement entered into in the ordinary course of business the primary purpose of which is unrelated to Taxes), which Taxes relate to a transaction, event or circumstance entered into, engaged in or occurring with respect to Seller and its Affiliates (including the Companies) before the Closing and (e) any applicable Transfer Taxes arising out of or in connection with the Transactions that are the responsibility of Seller pursuant to Section 9.01.

“Seller Initiated Actions” has the meaning given in the Seller Action Letter.

“Seller Parent” has the meaning given to that term in the preamble to this Agreement.

“Seller Parties” has the meaning given to that term in the preamble to this Agreement.

“Sellers’ Chapter 11 Case(s)” has the meaning given to that term in the recitals to this Agreement.

“Senior Lenders” has the meaning given to that term in Section 6.13(b).

“Separateness Provisions” has the meaning given to that term in Section 4.21.

“Specified Approval” has the meaning given to that term in Section 7.01(e).

“Subsidiary” means, with respect to any Person, any other Person of which such Person (either alone or through or together with any other Subsidiary) owns, directly or indirectly, 50% or more of the outstanding equity securities or securities carrying the voting power in the election of the board of directors or other governing body of such Person.

“Surety” has the meaning given to that term in Section 6.13(d).

“Surety Bond” means the Surety Bond, KO9273591, issued to County of Imperial by IVS2 and the Surety in the amount of $5,000,000.

“Survival Period Termination Date” has the meaning given to that term in Section 11.01(a).

“Tax” or “Taxes” means any and all federal, state, local or foreign net or gross income, gross receipts, net proceeds, sales, use, ad valorem, value added, franchise, bank shares, withholding, payroll, employment, excise, property, deed, stamp, alternative or add-on minimum, environmental, profits, windfall profits, transaction, license, service, occupation, severance, transfer, unemployment, social security, workers’ compensation, capital, premium and other taxes, assessments, customs, duties, fees, levies or other governmental charges of a similar nature, together with any interest, penalties, additions to tax or additional amounts with respect thereto.

“Tax Return” means any report, return, election, declaration or other filing required to be filed with any Governmental Authority, including any attachments or amendments thereto.

“TERP” means TerraForm Power, Inc., a Delaware corporation.

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“Third Party Claim” has the meaning given to that term in Section 11.03.

“Title Policy” has the meaning set forth in Section 4.15(c).

“Transactions” means the transactions contemplated herein to be consummated at the Closing, including the purchase and sale of the Equity Interests provided for in this Agreement.

“Transfer Taxes” means any and all transfer Taxes (excluding, for the avoidance of doubt, Taxes measured in whole or in part by net income or overall gross income and any withholding in respect thereof), including sales, use, real property transfer, recording, documentary, stamp, registration, stock, excise, conveyance, gross receipts, business and occupation, securities transactions, notarial, filing, permit, license, authorization and similar Taxes, fees, duties, levies, customs, tariffs, imposts, assessments, obligations and charges.

“Trigger Date” means the earlier of (i) July 22, 2016 and (ii) 5:00 p.m. Eastern time on the first Business Day immediately following the Private Sale Hearing.

“Updated NTR Letter Agreement” has the meaning given to such term in Section 6.14.

“Waiving Parties” has the meaning given to such term in Section 6.21.

“Willful Breach” means a material breach of or failure to perform a material covenant, obligation or agreement that is a consequence of an act or a failure to act by a party with the actual knowledge that the taking of such act or failure to act would, with the giving of notice or the passage of time, or both, result in a breach of this Agreement.

1.02 Rules of Construction.

(a) All article, section, subsection, schedule, exhibit and annex references used in this Agreement are to articles, sections, subsections, schedules, exhibits and annexes to this Agreement, unless otherwise specified. The annexes, exhibits and schedules attached to this Agreement constitute a part of this Agreement and are incorporated in this Agreement for all purposes.

(b) If a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb). Unless the context of this Agreement clearly requires otherwise, words importing the masculine gender shall include the feminine and neutral genders and vice versa. Unless the context otherwise requires, the term “or” is not exclusive and has the inclusive meaning of “and/or”; and “to the extent” means the measure or degree to which the subject matter applies and not “if”. The words “includes” or “including” shall mean “including without limitation,” and the words “hereof,” “hereby,” “herein,” “hereunder” and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular section or article in which such words appear. Any reference to a law shall include any amendment thereof or any successor thereto and any rules and regulations promulgated thereunder. Any reference to any contract, agreement or similar instrument shall include all annexes, exhibits, schedules or other attachments and all amendment, modifications or supplements thereto. Currency amounts referenced in this Agreement are in U.S. Dollars.

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(c) Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. Whenever any action must be taken hereunder on or by a day that is not a Business Day, then such action may be validly taken on or by the next day that is a Business Day.

(d) Each Party acknowledges that it and its attorneys have been given an equal opportunity to negotiate the terms and conditions of this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party or any similar rule operating against the drafter of an agreement shall not be applicable to the construction or interpretation of this Agreement.

(e) All accounting terms used herein and not expressly defined herein shall have the respective meanings given such terms under GAAP.

ARTICLE II

PURCHASE AND SALE OF EQUITY INTERESTS; CLOSING

2.01 Purchase and Sale of Equity Interests.

(a) Pursuant to Sections 105 and 363 and any other applicable provisions of the Bankruptcy Code and on the terms and subject to the conditions set forth in this Agreement and the Sale Approval Order, Buyer agrees to purchase, directly or indirectly (or to cause one or more of its Affiliated designees to purchase), at the Closing, all Equity Interests from Seller, and Seller agrees to, and Seller Parent agrees to cause Seller to, sell all right, title and interest in and to the Equity Interests held by Seller to Buyer (or one or more of its Affiliated designees), free and clear of all Liens, in exchange for the Purchase Price paid in accordance with Section 2.01(c).

(b) The aggregate consideration for all Equity Interests is an amount in cash (such amount, the “Purchase Price”) equal to: (i) either (x) eighty million dollars ($80,000,000) in the event of entry of a Private Sale Approval Order and (y) seventy million dollars ($70,000,000) in the event of entry of an Auction Sale Approval Order following the occurrence of an Auction Event, in each case, minus (ii) all Company Liabilities not paid and otherwise extinguished in full prior to Closing.

(c) At the Closing, the Purchase Price shall be paid as follows:

(i) an amount in cash equal to (x) the Estimated Purchase Price minus (y) the Escrow Amount, by wire transfer of immediately available funds to an account or accounts designated by Seller in writing not less than three (3) Business Days prior to Closing; and

(ii) two million five hundred thousand dollars ($2,500,000) in cash (such amount, the “Escrow Amount”) to the Escrow Agent, by wire transfer of immediately available funds into the Escrow Account to be held and disbursed in accordance with the Escrow Agreement.

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(d) Not more than ten (10) Business Days (but at least five (5) Business Days) prior to the Closing Date, Seller shall prepare in good faith and deliver to Buyer a certificate (as the same may be amended pursuant to the last sentence of this Section 2.01(d), the “Estimated Closing Statement”), setting forth (i) Seller’s best good faith estimate of the Purchase Price (the “Estimated Purchase Price”), based on Seller’s best good faith estimate of Company Liabilities, which estimate shall not be less than the sum of all Liabilities disclosed by Seller to the Buyer, unless the Seller has delivered evidence reasonably satisfactory to the Buyer of the pay-off, satisfaction or release of Liabilities resulting in such decreased estimate (such estimate, “Estimated Company Liabilities”) together with reasonably supporting documentation, including reasonable evidence that any Company Liabilities will be satisfied at Closing (“Company Liabilities Payoff Evidence”). During the five (5) to ten (10) Business Day period following the delivery of the Estimated Closing Statement, Seller shall discuss and negotiate in good faith any comments thereto of Buyer and shall update the Estimated Closing Statement prior to Closing to include and reflect any reasonable comments of Buyer raised during such period as well as any Company Liabilities not reflected thereon that become known by Seller Parties or the satisfaction of any Company Liabilities, in each case prior to Closing.

2.02 Closing. The Closing will take place on the second (2nd) Business Day following the date on which the last of the conditions set forth in ARTICLE VII and ARTICLE VIII are satisfied or waived by the applicable Parties (other than those that by their nature are intended to be satisfied at the Closing, but subject to the satisfaction or waiver thereof at the Closing) (the “Closing Date”), at 10:00 a.m. Eastern time at the offices of Latham & Watkins LLP, at 555 Eleventh Street, N.W., Washington, D.C. 20004, or at such other place, date or time as the Parties shall mutually agree upon in writing. At the Closing, the Parties will cause the transactions described in Section 2.01 to occur and will deliver the other documents and instruments to be delivered under Section 2.03, ARTICLE VII and ARTICLE VIII, which need not occur in person but may occur by electronic exchange of .pdf documents or facsimile.

2.03 Closing Deliveries.

(a) At the Closing on the Closing Date, Seller shall deliver the following documents and deliverables to Buyer (or its Affiliates, as applicable):

(i) a customary transfer instrument in respect of each Equity Interest, duly executed and delivered in blank by Seller, including for any Equity Interests that have been certificated, the original of such certificate, endorsed in blank and accompanied by a membership interest transfer power, duly executed by Seller;

(ii) the books and records held by Seller or its Affiliates with respect to each of the Companies and the Project, including Organizational Documents of each Company;

(iii) the resignations of all managers, directors or officers, if any, of each Company, except as set forth on Schedule 2.03(a)(iii);

(iv) evidence reasonably satisfactory to Buyer that the Equinix PPA has been terminated without any penalty, termination fee or similar payment payable by

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any Company, and that all of the Companies’ Liabilities thereunder have been satisfied or released or will be satisfied or released upon the receipt by Equinix (US) Enterprises, Inc. of certain renewable energy credits (payment for which has been reserved as an Estimated Company Liability);

(v) an estoppel certificate regarding compliance with Section 6.10, including that there are no intercompany payables owed by any Company to any Seller Party or any of their respective Affiliates other than with respect the items on Schedule 6.10(b);

(vi) the Escrow Agreement, duly executed and delivered by Seller Parent;

(vii) a certificate from Seller (or, in the case Seller is disregarded for U.S. federal income tax purposes, its regarded owner), dated as of the Closing Date, that satisfies the requirements of Section 1445(b)(2) of the Code (a “FIRPTA Certificate”);

(viii) the Company Liabilities Payoff Evidence, delivered in form and substance reasonably acceptable to Buyer; and

(ix) evidence reasonably satisfactory to Buyer that the Credit Support Instruments are in full force and effect (and will remain in full force and effect following Closing).

(b) At the Closing on the Closing Date, Buyer is delivering (or causing to be delivered) the following:

(i) the payments required by Section 2.01(c) in accordance therewith; and

(ii) the Escrow Agreement, duly executed and delivered by Buyer.

2.04 Purchase Price Allocation.

(a) No later than sixty (60) days after the Final Resolution Date, Buyer shall prepare and deliver to Seller a proposed allocation (the “Proposed Allocation”) of the purchase price (as determined for U.S. federal income tax purposes) among the separate Equity Interests, and further among the classes of assets of each of the Companies consistent with applicable U.S. federal income tax rules.

(b) If Seller disagrees with any items reflected in the Proposed Allocation, then Seller shall notify Buyer in writing of such disputed items within thirty (30) days after receipt thereof, and, thereafter, Seller and Buyer shall cooperate in good faith to resolve such dispute for a period of thirty (30) days (or such longer period as mutually agreed by the parties). To the extent that Seller and Buyer are unable to resolve any disputed items, the Parties shall jointly submit any remaining disputed items for resolution to the Accounting Referee, and shall instruct the Accounting Referee to render its decision (which decision shall include a written statement of findings and conclusions, including a written explanation of its reasoning with

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(c) The Final Allocation, as adjusted to take into account any subsequent adjustments to the purchase price (as determined for U.S. federal income tax purposes), shall be binding on Buyer, the Companies and Seller and their respective Affiliates for all purposes, including for Tax and financial accounting purposes. Buyer, the Companies and Seller and their respective Affiliates shall report, act, and file Tax Returns in all respects and for all purposes consistent with the Final Allocation and shall not take any position contrary thereto; provided, however, that nothing contained herein shall be construed so as to prevent any Party from settling, or require any Party to commence or participate in any litigation or administrative process challenging any determination.

2.05 Post-Closing Adjustment to Estimated Purchase Price.

(a) As promptly as practicable, but no later than ninety (90) days following the Closing Date, Buyer may prepare in good faith and deliver to Seller a statement (the “Closing Statement”) setting forth Buyer’s calculation of Company Liabilities.

(b) During the thirty (30) days after delivery of the Closing Statement, Buyer will provide Seller and its accountants reasonable access, during normal business hours and upon reasonable notice, to (x) review the financial books and records of the Companies, any of the Companies’ accountants’ work papers related to the calculation of amounts in the Closing Statement (subject to the execution of any access letters that such accountants may require in connection with the review of such work papers), and (y) the employees and other representatives of Buyer and the Companies who were responsible for the preparation of the Closing Statement to respond to questions relating to the preparation of the Closing Statement and the calculation of the items thereon, in each case solely to allow Seller to determine the accuracy of Buyer’s calculation of the items set forth on the Closing Statement. Neither Buyer nor the Companies shall have any obligation to provide information or access to information, materials or persons if doing so could reasonably be expected to (i) unreasonably disrupt the normal operations of the Companies, (ii) result in the waiver of any attorney-client privilege or the disclosure of any trade secrets or (iii) violate any Applicable Law or the terms of any applicable contract to which any Company or any of its Affiliates is party, provided that Buyer shall use good faith efforts to seek consent from any such third party under any such contract with respect to the disclosures prohibited thereby. If Seller disagrees with any of Buyer’s calculations set forth in the Closing Statement, Seller may, within thirty (30) days after delivery of the Closing Statement, deliver a written notice (the “Objection Notice”) to Buyer disagreeing with such calculations. Any Objections Notice shall specify those items or amounts with which Seller disagrees, together with a detailed written explanation of the reasons for disagreement with each such item or amount, and shall set forth Seller’s calculation, based on such objections, of the Company Liabilities. To the extent not set forth in the Objections Notice, Seller shall be deemed to have agreed with Buyer’s calculation of all other items and amounts contained in the

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Closing Statement. If Seller does not deliver an Objection Notice within such thirty (30)-day period, then the amounts set forth in the Closing Statement shall be deemed to be final and binding.

(c) If an Objection Notice is timely delivered pursuant to Section 2.05(b), Seller and Buyer shall, during the thirty (30) days following such delivery, use their commercially reasonable efforts to reach agreement on the value of the disputed items or amounts, and any discussions relating thereto shall be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule(s) and evidence of such discussions shall not be admissible in any future proceedings between the parties to this Agreement. If, during such period, Seller and Buyer are unable to reach agreement on all disputed items, they shall promptly thereafter mutually engage and submit such dispute to Deloitte & Touche LLP or another independent accounting firm reasonably satisfactory to Seller and Buyer (the “Accounting Referee”) for final and binding resolution. Each of Seller and Buyer shall enter into a customary engagement letter with the Accounting Referee, which engagement letter shall explicitly provide that, in resolving the amounts in dispute, the Accounting Referee (i) shall consider only those items or amounts disputed by Seller in the Objection Notice which remain in dispute; (ii) shall not assign a value to any item or amount in dispute greater than the greatest value for such item or amount assigned by Seller, on the one hand, or Buyer, on the other hand, or less than the smallest value for such item or amount assigned by Seller, on the one hand, or Buyer, on the other hand; and (iii) shall act as an expert and not as an arbitrator. The Accounting Referee’s determination will be based solely on presentations by Seller and Buyer which are in accordance with the guidelines and procedures set forth in this Agreement (i.e., not on the basis of independent review) and Seller and Buyer shall cause the Accounting Referee to deliver to Seller and Buyer as promptly as practicable (but in any event within thirty (30) days of its retention) a written report setting forth its determination of the amounts in dispute. Such report shall be final and binding on all parties to this Agreement. The cost of such review and report shall be borne (and paid) 50% by Seller and 50% by Buyer. “Final Resolution Date” shall be (i) thirty (30) days after delivery of the Closing Statement if no Objection Notice is delivered or (ii) if an Objection Notice is timely delivered then the earlier of when the parties reach a written agreement on the value of the disputed times or the Accounting Referee delivers its report.

2.06 Post-Closing Adjustment Payment.

(a) The “Adjustment Amount” shall be an amount equal to the amount of the Company Liabilities as finally determined pursuant to Section 2.05, minus the amount of Estimated Company Liabilities set forth in the Estimated Closing Statement.

(b) If the Adjustment Amount, as finally determined pursuant to this Section 2.06, is (i) positive, Seller and Buyer shall each, within five days after the Final Resolution Date, direct the Escrow Agent to pay to Buyer from the Escrow Account an aggregate amount equal to the Adjustment Amount, and to the extent the Adjustment Amount exceeds the funds available in the Escrow Account, Seller shall, within five days after the Final Resolution Date, pay Buyer, by wire transfer of immediately available funds, an amount equal to such excess amount, provided, that, to the extent any portion of such Adjustment Amount is attributable to an intentional misstatement of the Closing Statement or the Estimated Company Liabilities, Buyer shall have right to cause Seller to pay such portion of the Adjustment Amount by wire transfer of

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immediately available funds, notwithstanding that any amount may be available in the Escrow Account, or (ii) negative, within five days after the Final Resolution Date, Buyer shall pay to Seller the Adjustment Amount (as if such amount were positive).

(c) Any payment of an Adjustment Amount shall be treated as an adjustment to the Purchase Price for all tax purposes.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLER PARENT

Seller Parent hereby represents and warrants to Buyer as of the date hereof and as of the Closing Date as follows:

3.01 Organization. It is duly formed, validly existing and in good standing under the Applicable Laws of its jurisdiction of formation, and has all requisite power and authority to conduct its business as it is now being conducted and to own, lease and operate its properties, subject to the Bankruptcy Code.

3.02 Authority; Enforceability. Except for such authorization as is required by the Bankruptcy Court after giving effect to the Sale Approval Order and Sale Procedures Order (if applicable), as applicable, it has all requisite power and authority to execute and deliver this Agreement and, when executed, the Ancillary Agreements to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery by it of this Agreement and, when executed, the Ancillary Agreements to which it is a party, and the performance by it of its obligations hereunder and thereunder have been duly and validly authorized by all necessary corporate, limited liability or other applicable organizational action. Subject to the entry of the Sale Approval Order, this Agreement and, when executed, each Ancillary Agreement to which Seller Parent is a party, have been duly and validly executed and delivered by it and constitute the legal, valid and binding obligation of Seller Parent enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, arrangement, moratorium or other similar Applicable Laws relating to or affecting the rights of creditors generally, or by general equitable principles.

3.03 No Conflicts; Consents and Approvals. The execution and delivery by Seller Parent of this Agreement and, when executed, the Ancillary Agreements to which it is a party, do not, and the performance by it of its obligations under this Agreement and, when executed, the Ancillary Agreements to which it is a party, will not:

(a) conflict with or result in a violation or breach of any of the terms, conditions or provisions of its Organizational Documents;

(b) assuming authorization by the Bankruptcy Court through the Sale Approval Order and Sale Procedures Order (if applicable) that the Specified Approval has been obtained or waived in writing, be in violation of or result in a breach of or default (or give rise to any right of termination, cancellation or acceleration) under (with or without the giving of notice, the lapse of time, or both) any Contract to which it is a party, except for (i) any such violations or

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defaults (or rights of termination, cancellation or acceleration) which would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on its ability to perform its obligations hereunder or, when executed, any Ancillary Agreement to which it is a party and (ii) approvals required as a result of the business activities of Buyer and its Affiliates; or

(c) assuming authorization by the Bankruptcy Court through the Sale Approval Order and Sale Procedures Order (if applicable) that the Specified Approval has been made, obtained or given, (i) conflict with, violate or breach any term or provision of any Applicable Law applicable to it, except as would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on its ability to perform its obligations hereunder or, when executed, under any Ancillary Agreement or (ii) require any consent or approval of any Governmental Authority, or notice to, or declaration, filing or registration with, any Governmental Authority, under any Applicable Law, other than (1) such consents, approvals, notices, declarations, filings or registrations which, if not made or obtained, would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on its ability to perform its obligations hereunder or, when executed, under any Ancillary Agreement and (2) such approvals required as a result of the business activities of Buyer and its Affiliates.

3.04 Brokers. Seller Parent does not have any Liability to pay fees or commissions to any broker, finder or agent with respect to the Transactions for which Buyer would be responsible.

3.05 Legal Proceedings. Subject to entry of the Sale Approval Order and Sale Procedures Order (if applicable), there are no Actions pending or, to Seller Parent’s Knowledge, threatened in writing against Seller Parent, nor are there any outstanding Orders that affect or bind it or any of its properties, which in any manner seeks to restrain, enjoin, prohibit, make illegal or materially delay the Transactions or the performance by it of its respective obligations under this Agreement or, when executed, the Ancillary Agreements to which it is a party.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF SELLER

Except as set forth on the schedules delivered to Buyer by Seller on or prior to the execution and delivery of this Agreement (the “Disclosure Schedules”), Seller Parent, jointly and severally with Seller, represent and warrant to Buyer, as of the date hereof and as of the Closing Date, as follows:

4.01 Organization.

(a) Seller is duly formed, validly existing and in good standing under the Applicable Laws of its jurisdiction of formation, and has all requisite power and authority to conduct its business as it is now being conducted and to own, lease and operate its properties.

(b) Each Company is duly formed, validly existing and in good standing under the Applicable Laws of its jurisdiction of organization, and has all requisite organizational

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power and authority to conduct its business as it is now being conducted and to own, lease and operate its properties. Each Company is duly qualified or licensed to do business in each jurisdiction in which the ownership or operation of its respective properties make such qualification or licensing necessary, except as would not have, individually or in the aggregate, a Material Adverse Effect.

4.02 Authority; Enforceability. Seller has all requisite power and authority to execute and deliver this Agreement and, when executed, each Ancillary Agreement to which Seller is a party, and, subject to entry of the Sale Approval Order, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery by Seller of this Agreement and, when executed, each Ancillary Agreement to which Seller is a party, and the performance by Seller of its obligations hereunder and thereunder have been duly and validly authorized by all necessary corporate, limited liability or other applicable organizational action. Subject to the entry of the Sale Approval Order, this Agreement and, when executed, each Ancillary Agreement to which Seller is a party, has been duly and validly executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, arrangement, moratorium or other similar Applicable Laws relating to or affecting the rights of creditors generally, or by general equitable principles.

4.03 No Conflicts; Consents and Approvals. The execution and delivery by Seller of this Agreement and, when executed, the Ancillary Agreements to which Seller is a party do not, and the performance by Seller of its obligations under this Agreement and, when executed, the Ancillary Agreements to which Seller is a party will not:

(a) conflict with or result in a violation or breach of any of the terms, conditions or provisions of the Organizational Documents of Seller or the Organizational Documents of the Companies;

(b) assuming authorization by the Bankruptcy Court through the Sale Approval Order and Sale Procedures Order (if applicable) and that the Specified Approval has been obtained or waived in writing, be in violation of or result in a breach of or default (or give rise to any right of termination, cancellation or acceleration) under (with or without the giving of notice, the lapse of time, or both) any Contract to which Seller or any Company is a party, except for (i) any such violations or defaults (or rights of termination, cancellation or acceleration) which would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on Seller’s ability to perform its obligations hereunder or, when executed, any Ancillary Agreement to which Seller is a party, to adversely affect any Company or the Project in any material respect and (ii) approvals required as a result of the business activities of Buyer and its Affiliates; or

(c) assuming authorization by the Bankruptcy Court through the Sale Approval Order and Sale Procedures Order (if applicable) and that the Specified Approval has been made, obtained or given, (i) conflict with, violate or breach any term or provision of any Applicable Law applicable to Seller or any Company, except as would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on Seller’s ability to

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perform its obligations hereunder, or to adversely affect any Company or the Project in any material respect, or (ii) require any consent or approval of any Governmental Authority, or notice to, or declaration, filing or registration with, any Governmental Authority, under any Applicable Law, other than (1) such consents, approvals, notices, declarations, filings or registrations which, if not made or obtained, would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on Seller’s ability to perform its obligations hereunder, or to adversely affect any Company or the Project in any material respect and (2) such approvals required as a result of the business activities of Buyer and its Affiliates.

(d) Neither the Project, nor any of its assets or any equity interest in respect thereof, is subject to any call right, option to purchase, right of first refusal or similar right of TERP or any of its Subsidiaries or any other Person, other than as set forth on Schedule 4.03(d).

4.04 Ownership of Interests. Seller is the sole record and beneficial owner of the Equity Interests, and the Equity Interests are not subject to any Liens, except for any restriction on sales of securities under Applicable Law and as set forth in Schedule 4.06.

4.05 Ownership of Project. The Companies collectively own the Project free and clear of any Liens (other than Permitted Liens).

4.06 Capitalization.

(a) All of the Equity Interests are duly authorized, validly issued, fully paid and nonassessable, and, except as set forth in Schedule 4.06, are owned by Seller free and clear of any Liens. Except as set forth in Schedule 4.06, there are not (i) any Equity Securities in any Company issued or outstanding, (ii) any securities convertible into or exchangeable or exercisable for Equity Securities of any Company, or (iii) any subscriptions, options, warrants, calls, rights, convertible securities or other Contracts of any character obligating any Company to issue, transfer or sell any of its Equity Securities (the items in clauses (i), (ii), and (iii), collectively, “Company Securities”).

(b) Except as set forth in Schedule 4.06, there are no outstanding obligations of any Company to repurchase, redeem or otherwise acquire any Company Securities, except as may be set forth in the Organizational Documents of such Company.

4.07 Legal Proceedings.

(a) Other than the Sellers’ Chapter 11 Cases, there are no Actions pending or, to the Knowledge of Seller, threatened against Seller, nor are there any outstanding Orders that affect or bind Seller or any of its properties, which in any manner seeks to restrain, enjoin, prohibit, make illegal or materially delay the Transactions or the performance by Seller of its obligations under this Agreement or, when executed, the Ancillary Agreements to which Seller is a party.

(b) Except for the Sellers’ Chapter 11 Cases and as set forth on Schedule 4.07, there are no Actions pending or, to the Knowledge of Seller, threatened against any Company or any of its properties, which are or are reasonably likely to be material to any Company, or which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the Transactions.

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There are no outstanding Orders arising from litigation or arbitration proceedings or other Orders (other than curable delays or omissions, of which Seller has no Knowledge, in obtaining Governmental Approvals for ordinary permitting, interconnection requests and similar requirements incident to project development, which Governmental Approvals are reasonably expected to be obtained in the ordinary course) that adversely affect any Company or the Project in any material respect.

4.08 Compliance with Laws and Governmental Approvals. Schedule 4.08 sets forth all material Governmental Approvals held by each Company. Seller has delivered to Buyer a true, correct and complete copy of each such Governmental Approval. Each Governmental Approval was duly and validly obtained and issued and is in full force and effect and for which the time period for appeal and for rehearing has expired. Each Company is in compliance in all material respects with all Applicable Laws and material Governmental Approvals applicable to or held by such Company.

4.09 Material Contracts.

(a) Schedule 4.09(a) sets forth as of the date hereof a list of each of the Contracts to which each Company is bound and which is material to such Company, including, in any event, any Financing Agreement, power purchase agreement, construction agreement, operation and maintenance agreement, management agreement, administrative services agreements, agreements of the purchase or sale of assets, partnership or joint venture agreements, investment agreements, and any agreement that includes a restriction on the business activities of such Company (collectively, the “Company Contracts”).

(b) Except as set forth on Schedule 4.09(b), each Company Contract (i) is in full force and effect, (ii) represents the legal, valid and binding obligation of the respective Company and, to the Knowledge of Seller, the other parties thereto, in each case enforceable in accordance with its terms, and (iii) other than in respect of Company Liabilities set forth on Schedule 1.01(a), none of the Companies nor, to the Knowledge of Seller, any other party, is in material breach of or default under any Company Contract, and, to the Knowledge of Seller, no circumstance or event has occurred which, with notice or passage of time, or both, would constitute a material breach or default, or would allow termination, modification, or acceleration, under any such Company Contract.

(c) No Company has received any written notice of default or breach under any Company Contract that is continuing or that has not otherwise been fully waived or fully cured and remedied.

(d) True, correct and complete copies of the Company Contracts (as amended, modified or supplemented through the date hereof) have been made available to Buyer prior to the date hereof.

4.10 Environmental Matters. To the Knowledge of Seller, there has been no release or threatened release of any Hazardous Material at, on, under or from the Real Property. Since the Applicable Date, neither Seller nor any Company has received any written or, to the Knowledge of Seller, verbal notice, nor is aware of any issue or potential issue identifying or alleging any

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environmental condition on or affecting any Real Property, relating to a violation by any Company or Seller of any Environmental Law related to the Project or any environmental Liability or potential environmental Liability of any such entity or the Project, and no claim regarding such a violation or Liability is pending or, to the Knowledge of Seller, has been threatened against Seller or any Company. To the Knowledge of Seller, prior to the Applicable Date, neither Seller nor any Company received any written or verbal notice nor became aware of any issue or potential issue identifying or alleging any environmental condition on or affecting any Real Property, relating to a violation by any Company or Seller of any Environmental Law related to the Project or any environmental Liability or potential environmental Liability of any such entity or the Project and no claim regarding such a violation or Liability is pending or, to the Knowledge of Seller, has been threatened against Seller or any Company. Seller has provided to Buyer true, correct and complete copies of all reports that Seller or any Company or any of their respective Affiliates possesses regarding the environmental condition of the Real Property. Seller is not aware of any other such reports, nor have any additional reports been commissioned by Seller or any Company or any of their respective Affiliates. Except as would not have a Material Adverse Effect, to the Knowledge of Seller, no underground storage tanks, aboveground storage tanks, oil wells, pits, sumps or waste management containment impoundments are currently or were historically located or operated at any Real Property in a condition that would reasonably be expected to result in environmental Liability to Seller or its Affiliates, any Company or the Project.

4.11 No Material Adverse Effect. There is no event, change, circumstance, development, occurrence, condition, effect or state of facts that has occurred and is continuing to have, individually or in the aggregate, a Material Adverse Effect.

4.12 Transactions with Affiliates. Except as set forth on Schedule 4.12, no Company has any Liabilities to or Contracts with Seller Parent or its Affiliates (other than such Company), and there are no guarantees, grants of Liens or other credit support arrangements by Seller Parent or its Affiliates (other than such Company) in favor of such Company or by such Company in favor of Seller Parent or its Affiliates (other than such Company).

4.13 Financial Statements. Seller has made available to Buyer true and complete copies of the unaudited balance sheet of each Company on a consolidated basis as of the dates described in Schedule 4.13 (collectively, the “Financial Statements”). The Financial Statements were prepared in accordance with GAAP and fairly present in all material respects, the financial condition of the entities covered thereby as of the respective dates thereof and for the respective periods covered thereby; provided, that the Financial Statements are subject to normal year-end adjustments and lack footnotes and other presentation items, none of which are material to any Company.

4.14 No Undisclosed Liabilities. No Company has any unpaid or unsatisfied Liability or obligation of any nature, other than (i) Liabilities set forth on Schedule 4.14, (ii) Liabilities disclosed in the Financial Statements, (iii) Liabilities incurred pursuant to the express terms of any Contract disclosed on Schedule 4.09(a) (other than Liabilities that result from, arise out of or were caused by any breach of contract or otherwise not intended by such Contract), and (iv) to the Knowledge of Seller, Liabilities that would not, individually or in the aggregate, be material to any Company.

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4.15 Company Property.

(a) Each Company owns, leases or otherwise has the right to access or possess the real property identified in Schedule 4.15(a) (the “Real Property”), in each case, free and clear of all Liens (except for Permitted Liens). The Real Property is all the real property used or held for use by each Company in connection with the Project.

(b) Each Company has (i) legal, valid and marketable fee simple title to each parcel of Real Property owned in fee, if any, (ii) valid and subsisting leasehold interests in each parcel of leased Real Property, if any, and (iii) valid recorded easements in each parcel of Real Property for which an easement has been granted, if any. No Company has granted any Person any lease, license, sublease, easement, concession or other agreement (written or oral) the right to possess occupy the Real Property or any portion thereof or otherwise granted any Person any material rights or Liens (other than Permitted Liens) with respect to the Real Property.

(c) To the Knowledge of Seller, there are no unrecorded rights of third parties with respect to the Real Property that are not noted on the 2006 ALTA extended owner’s policy of title insurance made available to Buyer prior to the date hereof (collectively, the “Title Policy”).

(d) To the Knowledge of Seller, none of Seller or its Affiliates expect the Permitted Liens to materially interfere with the construction, ownership or operation of the Project as had been contemplated by Seller Parties immediately prior to the commencement of the Sellers’ Chapter 11 Cases to be constructed, owned and operated.

(e) No Company has entered into or made any outstanding options, rights of first and last negotiation, rights of first offer or rights of first refusal to purchase the Real Property or any portion thereof or interests therein and, to the Knowledge of Seller, no other party has granted any such rights.

(f) Each Company has good, legal and valid title in and the exclusive right to use pursuant to a valid and enforceable lease, license or similar contractual arrangement, all machinery, equipment and other tangible and intangible personal property or other assets used or held for use in connection with the Project or the business of such Company and are material to such use (the “Personal Property”), free and clear of all Liens (other than Permitted Liens).

(g) No condemnation proceeding or moratorium is pending or, to the Knowledge of Seller, threatened against the Real Property or the Personal Property.

4.16 Employee Matters.

(a) No Company has or had, since the Applicable Date, any employees.

(b) There is no labor strike, slowdown or work stoppage pending or, to the Knowledge of Seller, threatened against any Company or with respect to the Project that would adversely affect any Company or the Project in any material respect.

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4.17 Equity Commitments. Except as set forth in Schedule 4.17 or the Credit Support Instruments (as defined in the IVS3/IVS4/Sun Lake Solar PSA), no Seller Party, nor any of their Affiliates nor any Company (i) has any obligation to contribute additional capital on or after the Closing to any Person or otherwise with respect to the Project or (ii) is required to currently or in the future guarantee or otherwise provide credit support for any obligation, Indebtedness or other Liability (performance or otherwise) with respect to the Project or, in the case of any Company, otherwise.

4.18 Intentionally Omitted.

4.19 Lease Payments. As of the date hereof, all payments required to be made under any leases relating to the Project are current and have been paid in full by Seller and its Affiliates.

4.20 Tax Matters. Since the Applicable Date and, to Seller’s Knowledge, prior to the Applicable Date, all material Tax Returns required to be filed by, or with respect to, each Company have been timely filed (taking into account all properly granted extensions) and each such Tax Return is complete and accurate in all material respects. Since the Applicable Date and, to Seller’s Knowledge, prior to the Applicable Date, all material Taxes payable by or due from or with respect to each Company, or required to be withheld by any Company, have been fully paid or withheld. At all times since the Applicable Date and, to Seller’s Knowledge, at all times since formation, each Company has been either a disregarded entity or a partnership for U.S. federal income tax purposes pursuant to Treasury Regulation Section 301.7701-3(b)(1) and has not since the Applicable Date and, to Seller’s Knowledge, never filed an election to be treated as, or otherwise been classified as, an association taxable as a corporation for U.S. federal income tax purposes. Since the Applicable Date and, to Seller’s Knowledge, prior to the Applicable Date, except as set forth in Schedule 4.20: (a) no Liens for Taxes have been imposed upon the assets of any Company other than statutory liens for current Taxes of the applicable Company not yet due and payable; (b) no outstanding agreements, consents, or waivers extending the statutory period of limitations applicable to any Tax Return or Taxes of any Company have been entered into; (c) no written claim has been made by any Governmental Authority with respect to any Company in a jurisdiction where such Company does not file a Tax Return that it (or its income or activities) is or may be subject to taxation in that jurisdiction; (d) no Company has been a party to any Tax indemnity, Tax allocation or Tax sharing agreement other than any such agreement entered into in the ordinary course of business the primary purpose of which is unrelated to Taxes; (e) there has been no audit, examination or other administrative or judicial proceeding for Taxes that is ongoing, currently pending or for which Seller or any of its Affiliates (including any Company) has received written notice is scheduled to commence against, or with respect to, any Company; (f) there has been no outstanding or proposed written claim, deficiency or assessment for Taxes pending against any Company; and (g) no Company has incurred any Liability for the Taxes of any other Person as a transferee or successor or by operation of Law (including Treasury Regulations Section 1.1502-6 and any similar state or local Tax Law). No power of attorney is currently in effect with respect to any Tax matter relating to any Company or the Project. Since the Applicable Date and, to Seller’s Knowledge, prior to the Applicable Date, no Tax ruling has been requested of any Governmental Authority with respect to any Tax matter relating to any Company or the Project. Neither any Company nor the Project currently benefits from any Tax incentive, holiday or abatement

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arrangement with any Governmental Authority. Since the Applicable Date and, to Seller’s Knowledge, prior to the Applicable Date, no federal, state or local Tax credits (including any federal investment Tax credits for “qualified progress expenditures”) have been claimed by any Company or Seller or any of their Affiliates, with respect to the Project. Since the Applicable Date and, to Seller’s Knowledge, prior to the Applicable Date, no governmental grants or other subsidies have been applied for or received in connection with, or with respect to, the Project.

4.21 Compliance with Separateness Provisions. Each Company conducts business only in its own name, does not engage in any business or have any assets unrelated to the Project, has its own separate books, records, and accounts (with no commingling of assets), holds itself out as being a Person separate and apart from any other Person (collectively, the “Separateness Provisions”), and, except as would not have, individually or in the aggregate, a Material Adverse Effect, observes limited liability company formalities independent of any other Person.

4.22 Brokers. Seller does not have any Liability to pay fees or commissions to any broker, finder or agent with respect to the Transactions for which Buyer would be responsible.

4.23 Regulatory Matters. No Company is (i) an “electric utility company” or a “public-utility company” within the meaning of the Public Utility Holding Company Act of 2005, and all rules and regulations adopted thereunder, (ii) a “public utility” within the meaning of and subject to regulation under the Federal Power Act of 1935, as amended, and all rules and regulations adopted by the Federal Energy Regulatory Commission and its successors thereunder, or (iii) subject to regulation as a “public utility” under California Applicable Law.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer hereby represents and warrants to Seller and Seller Parent as of the date hereof and as of the Closing Date as follows:

5.01 Organization. Buyer is duly formed, validly existing and in good standing under the Applicable Laws of its jurisdiction of organization, and has all requisite power and authority to conduct its business as it is now being conducted and to own, lease and operate its properties.

5.02 Authority; Enforceability. Buyer has all requisite power and authority to execute and deliver this Agreement and the Ancillary Agreements to which it is, or will be, a party, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery by Buyer of this Agreement and the Ancillary Agreements to which it is, or will be, a party, and the performance by Buyer of its respective obligations hereunder and thereunder, have, or shall have prior to execution, been duly and validly authorized by all necessary action. This Agreement and each Ancillary Agreement to which Buyer is, or will be, a party has, or when executed shall have, been duly and validly executed and delivered by Buyer and constitutes, or will constitute when executed, the legal, valid and binding obligation of such Person enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, arrangement, moratorium or

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other similar Applicable Laws relating to or affecting the rights of creditors generally, or by general equitable principles.

5.03 No Conflicts; Consents and Approvals. The execution and delivery by Buyer of this Agreement and, when executed, the Ancillary Agreements to which it is a party, do not, and the performance by it of its obligations under this Agreement and, when executed, the Ancillary Agreements to which it is a party, will not:

(a) conflict with or result in a violation or breach of any of the terms, conditions or provisions of the Organizational Documents of Buyer;

(b) be in violation of or result in a breach of or default (or give rise to any right of termination, cancellation or acceleration) under (with or without the giving of notice, the lapse of time, or both) any Contract to which Buyer is a party, except for any such violations or defaults (or rights of termination, cancellation or acceleration) which would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on Buyer’s ability to perform its obligations hereunder; or

(c) assuming authorization by the Bankruptcy Court through the Sale Approval Order and Sale Procedures Order (if applicable) and that the Specified Approval has been obtained, (i) conflict with, violate or breach any term or provision of any Applicable Law applicable to Buyer, except as would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on Buyer’s ability to perform its obligations hereunder or (ii) require any consent or approval of any Governmental Authority, or notice to, or declaration, filing or registration with, any Governmental Authority, under any Applicable Law, other than such consents, approvals, notices, declarations, filings or registrations which, if not made or obtained, would not, individually or in the aggregate, reasonably be expected to result in a material adverse effect on Buyer’s ability to perform its obligations hereunder.

5.04 Legal Proceedings. There are (x) no Actions pending or, to the knowledge of Buyer, threatened in writing against Buyer, nor (y) are there any outstanding Orders that affect or bind Buyer or any of its properties, which, in each case of (x) or (y), in any manner seeks to restrain, enjoin, prohibit, make illegal or materially delay the Transactions or the performance by Buyer of its obligations under this Agreement or, when executed, the Ancillary Agreements to which Buyer is a party.

5.05 Investment Representations. Buyer is an investor experienced (or owned or managed by Persons experienced) in evaluating investments and, in particular (either on its own or with advisors), power generation facilities and has the knowledge, experience and resources to enable it to evaluate and to bear the risks of the investment represented by the Equity Interests.

5.06 Brokers. Buyer has no Liability to pay fees or commissions to any broker, finder or agent with respect to the Transactions (other than fees and commissions that will be paid directly by Buyer or its Affiliates).

5.07 Financing. On the Closing Date, assuming the funding of the Debt Financing contemplated by the Debt Commitment Letter, Buyer will have sufficient cash, available lines of credit or other sources of immediately available funds to consummate the Transaction. Buyer

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has, prior to the date of this Agreement, delivered to Seller a true and complete copy of the Debt Commitment Letter, and the Debt Commitment Letter is in full force and effect in accordance with its terms as of such date, constitutes the legal, valid and binding obligations of Buyer and, to Buyer’s knowledge, the other parties thereto (in each case, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally and to general principles of equity). As of the date hereof, the Debt Commitment Letter (together with any ancillary documents referenced therein and the fee letter related thereto) constitutes all of the agreements entered into between each of the Debt Financing Parties and/or their respective Affiliates and Buyer and/or its Affiliates with respect to the financing arrangements contemplated thereby, and there are, and there are contemplated to be, no side letters or other agreements to which Buyer or any of its Affiliates is or is to be a party related to the Debt Financing which expand or would expand the conditions precedent to the Debt Financing. The Debt Commitment Letter is not subject to any contingency or condition of any kind whatsoever related to the funding of the full amount of the financing contemplated by the Debt Commitment Letter other than as set forth in the executed copy thereof delivered to Seller prior to the date hereof. As of the date hereof, the Debt Commitment Letter has not been modified, amended, waived or supplemented in any respect, and (other than amendments, modifications, waivers or supplements to add lead arrangers, bookrunners, syndication agents or similar parties) and no such amendment, modification, waiver or supplement is contemplated. As of the date hereof, the commitment contained in the Debt Commitment Letter have not been withdrawn or rescinded. As of the date hereof, none of Buyer or any of its Affiliates is in breach of any of the Debt Commitment Letter, nor does Buyer or any of its Affiliates have knowledge of any breach of the Debt Commitment Letter by any of the other parties thereto.

5.08 No Other Representations. Buyer is an informed and sophisticated purchaser, and has engaged expert advisors, experienced in the evaluation and purchase of companies such as the Companies as contemplated hereunder. Buyer acknowledges that neither Seller Parent nor Seller makes any representation or warranty with respect to (a) any projections, estimates or budgets delivered to or made available to Buyer of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of the Companies or the future business and operations of the Companies or (b) any other information or documents made available to Buyer or its counsel, accountants or advisors with respect to the Companies or their respective businesses or operations, except as expressly set forth in ARTICLE III and ARTICLE IV, provided, that nothing in this Section 5.08 shall be interpreted as limiting the obligation of Seller or Seller Parent to perform any covenant set forth in this Agreement, or limiting the ability of Buyer to pursue a claim for fraud.

ARTICLE VI

COVENANTS OF THE PARTIES

6.01 Access by Buyer.

(a) From and after the date hereof until the Closing Date or earlier termination of this Agreement (the “Interim Period”), Seller will (i) provide Buyer and its Representatives with reasonable access, upon reasonable prior notice and during normal business hours, to the offices, properties and the books and records relating to the Companies, but only to the extent

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(b) Prior to Closing, Buyer will hold, and will use its commercially reasonable efforts to cause its Affiliates and Representatives to hold, in strict confidence from any other Person all Confidential Information relating to the Companies obtained pursuant to Section 6.01(a) or Section 6.06, provided that nothing in this sentence shall limit the disclosure by Buyer or its Affiliates or Representatives of any information (a) to the extent required by Applicable Law or judicial, regulatory, administrative or other legal process, order or decree (provided that if permitted by Applicable Law or such process, order or decree, Buyer agrees to give the Seller Parties prior notice of such disclosure and reasonably cooperate, at the Seller Parties’ sole cost and expense, with any efforts by the Seller Parties or their Affiliates to seek confidential treatment of any such information required by Law to be disclosed), (b) in connection with any litigation among the Parties or their Affiliates, (c) in an Action brought by a Party in pursuit of its rights or in the exercise of its remedies under this Agreement, (d) after Closing or to the extent that such documents or information can be shown to have come within the public domain through no action or omission of the disclosing Party or its Affiliates in violation hereof, (e) to its Affiliates (but the Party shall be liable for any breach by its Affiliates), (f) to its actual or prospective investors, advisors, lenders, underwriters, legal representatives, counterparties or other third parties who Buyer reasonably determines have a reason to know and (g) to investors, purchasers or other assignees of any Company.

6.02 Interim Period Operations. Except as (i) expressly required by this Agreement, or (ii) required by Applicable Law (including the Bankruptcy Code) or by a Governmental Authority or pursuant to any Company Contract or any order of the Bankruptcy Court, during the Interim Period, Seller Parent and Seller shall, and they shall cause each Company to, operate only in the ordinary course of business consistent with prudent industry practice. Without limiting the generality of the foregoing, during the Interim Period, except as (i) set forth in Schedule 6.02, (ii) expressly required by this Agreement, or (iii) required by Applicable Law (including the Bankruptcy Code) or by a Governmental Authority or pursuant to any Company Contract or any order of the Bankruptcy Court, Seller Parent and Seller shall not permit any Company to take any of the following actions without Buyer’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned):

(a) dispose of any properties (including disposition or issuance of any equity interest) or assign or waive any material rights, or incur any Liens or permit any Liens to be

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imposed on any property, other than (i) Permitted Liens, (ii) Liens pursuant to express provisions of existing terms of existing Contracts that are included in Schedule 4.09 (other than any Liens arising from any breach of any such Contract) or (iii) dispositions in the ordinary course of business that are not material in any respect;

(b) enter into or amend in any material respect any Contract with any Affiliate or terminate any such Contract, in each case which will not be terminated pursuant to Section 6.10;

(c) other than lease payments prior to the termination of any grace or cure period (the obligations in respect of which are separately addressed in clause (e) of this Section 6.02), fail to satisfy when due or otherwise default on (i) any material payment obligation under any Company Contract related to the development, siting, construction, operation or maintenance of the Project or (ii) any payment obligation under any Contract if such default has or could reasonably be expected to have an adverse effect on any Company, the Project, or any Company’s or Buyer’s ability to obtain bank or tax equity financing for the Project, in each case, in any material respect;

(d) other than in respect of Liabilities incurred to satisfy in full, and obtain full release of the Companies from any Liabilities in connection with the Equinix PPA (but only to the extent included in Estimated Company Liabilities), take any action that could be reasonably expected to cause or result in the incurrence of any Liability at any Company (including guarantees of third parties or affiliate debt) in an amount greater than or equal to $25,000 individually or $100,000 in the aggregate;

(e) fail to make any lease payments by the termination of any grace or cure period under any lease agreement relating to the Project;

(f) enter into any Contract that would be a Company Contract if in existence on the date hereof or materially amend, materially modify or terminate (partially or completely) any Company Contract, in each case other than (A) in the ordinary course of business consistent with prudent industry practice and not adverse to any Company or Buyer or their Affiliates, (B) renewals or extensions of Company Contracts in accordance with the terms thereof, or (C) amendments that are not adverse or otherwise material to any Company, and provided further that such new Contract or amendment, modification or termination would not reasonably be expected to impede the financing of the Project;

(g) change the U.S. federal income tax classification of any Company or take or fail to take any action with respect to any Tax matters outside the ordinary course of business or inconsistent with past practice;

(h) fail to comply in any material respect with any Applicable Law, including zoning and permits; or

(i) take any action that could be reasonably expected to cause or result in the failure of any Company to be in compliance with all applicable requirements in order to claim credits under Section 45 or Section 48 of the Code, as applicable, with respect to the activities conducted by such Company or any other Company with respect to such Company or to result in

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6.03 Good Faith Efforts; Regulatory and Other Approvals. During the Interim Period:

(a) Seller and Buyer will, in order to consummate the Transactions, (i) take all steps necessary, and proceed diligently and in good faith and use their respective reasonable best efforts, as promptly as practicable to obtain the Specified Approval and to make all required filings required to be made by it with, and to give all required notices to, all applicable Governmental Authorities, and (ii) provide such other information and communications to such Governmental Authorities or other Persons as such Governmental Authorities or other Persons may reasonably request in connection therewith.

(b) The Parties will provide prompt notification to each other when any such approval referred to in Section 6.03(a) is obtained, taken, made, given or denied, as applicable, and will advise each other of any material communications with any Governmental Authority or other Person regarding any of the Transactions.

(c) In furtherance of the foregoing covenants:

(i) Each of Seller and Buyer shall prepare, as soon as is practical following the execution of this Agreement, all necessary filings in connection with the Transactions that may be required to be filed by such Party under any Applicable Laws. Seller and Buyer shall consult with each other regarding such filings and shall consider and incorporate in such filings all reasonable comments, if any, submitted by the other Party with respect thereto. Seller and Buyer shall request expedited treatment, where permitted, of any such filings, shall promptly furnish each other with copies of any notices, correspondence or other written communication from the relevant Governmental Authority, shall promptly make any appropriate or necessary subsequent or supplemental filings and shall cooperate in the preparation of such filings as is reasonably necessary and appropriate. Each of Seller and Buyer shall have the right to review in advance all information related to such Party and the Transactions with respect to any filing made by the other Party in connection with the Transactions.

(ii) Buyer acknowledges that for purposes of this Section 6.03 only, for purposes of using their “reasonable best efforts,” Buyer shall, and shall cause its directors, officers, Affiliates, employees, agents, attorneys, accountants and representatives to, (A) consult and fully cooperate with and provide reasonable assistance to Seller in obtaining all necessary consents or other permission or action by, and giving all necessary notices to and making all necessary filings with and applications and submissions to, any Governmental Authority, (B) defend against all Actions challenging this Agreement or the consummation of the Transactions and (C) take all actions necessary to contest and resist any Action, including any legislative, administrative or judicial Action, and to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary in this Agreement, Buyer shall be under no obligation to make

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proposals, execute or carry out agreements, enter into consent decrees or submit to orders providing for or that would result in (A) a material adverse effect on the assets, liabilities, business, results of operations or condition (financial or otherwise) of the Companies, taken as a whole, (B) the imposition of any limitation or regulation on the ability of Buyer or any of its Affiliates to freely conduct their business or own such assets, including the consummation of other acquisitions or investments or (C) the holding separate of the Equity Interests or any limitation or regulation on the ability of Buyer or any of its Affiliates to exercise full rights of ownership of the Equity Interests.

(d) Seller shall use, and shall cause each Company to use, its commercially reasonable efforts (i) to obtain entry of the Private Sale Approval Order on or before Trigger Date and (ii) following an Auction Event, to obtain entry of the Sale Procedures Order and the Auction Sale Approval Order, in each case in accordance with the terms of this Agreement.

6.04 Further Assurances. During the Interim Period, subject to the terms and conditions hereof, the Parties shall act in good faith to (a) determine whether any action by or in respect of any third party is necessary to consummate the Transactions and (b) take such actions in a timely manner. The Parties shall act in good faith and execute and deliver or cause to be executed and delivered all other documents and consider in good faith such other actions in each case as shall be reasonably requested by another Party to facilitate the Transactions, all in accordance with the terms and provisions of this Agreement. In furtherance and not in limitation of the foregoing, Seller Parties shall, at the request of Buyer, use commercially reasonable efforts to (i) cooperate with Buyer’s efforts to acquire after the Closing, or cause the Companies to acquire after the Closing, an interest in the real property set forth on Schedule 4.15(h) and (ii) cause TERP and IVS1 to take all actions that are reasonably necessary: (x) to permit IVS2 to join, and to use the facilities and property rights governed by, the CSolar CTA, including by consenting to IVS’ assignment to IVS2 of a portion of the IVS Undivided Interest under the CSolar CTA, and by providing any confirmations to IVS and IVS2 that are reasonably necessary in connection therewith; (y) to amend the LGIA to extend the Commercial Operation Date Interconnection Milestone for IVS2 thereunder to align with the “Commercial Operation Deadline” under the IVS2 PPA; and (z) to join IVS2 to the Centinela CTA.

6.05 Post-Closing Cooperation.

(a) Upon the terms and subject to the conditions of this Agreement, at any time or from time to time after the Closing, each of the Parties shall use commercially reasonable efforts to execute and deliver such other documents and instruments, provide such materials and information and take such other actions as may reasonably be necessary, proper or advisable, to the extent permitted by applicable Law and reasonably believed in good faith to be necessary to fulfill its obligations under this Agreement. After the Closing, the Parties shall act in good faith to determine whether any action by or in respect of any third party is necessary to consummate the Transactions, including the Seller Initiated Actions (as defined in the Seller Action Letter). The Parties shall consider in good faith such other commercially reasonable actions (including with respect to obtaining consent of third parties or executing and delivering additional documents as reasonably requested by Buyer) in each case as shall be reasonably requested by another Party (at the requesting Party’s expense) to facilitate the Transactions, all in accordance with the terms and provisions of this Agreement.

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(b) In furtherance and not in limitation of the foregoing, from and after the Closing, and notwithstanding the termination of the Seller Action Letter in accordance with its terms, Seller Parties shall, and shall cause their Affiliates, as applicable, to (x) to the extent reasonable expenses in connection therewith have been previously approved by Buyer as contemplated by the proviso in the last sentence of this Section 6.05(b), to cooperate reasonably with Buyer in accomplishing the items set forth in clauses (i) through (v) of the second paragraph of the Seller Action Letter related to the Seller Initiated Actions (as defined in the Seller Action Letter) not completed prior to the Closing and (y) at the request of Buyer, use commercially reasonable efforts to (i) cooperate with Buyer and the Companies’ efforts to acquire an interest in the real property set forth on Schedule 4.15(h) and (ii) cause TERP and IVS1 to take all actions that are reasonably necessary: (x) to permit IVS2 to join, and to use the facilities and property rights governed by, the CSolar CTA, including by consenting to IVS’ assignment to IVS2 of a portion of the IVS Undivided Interest under the CSolar CTA, and by providing any confirmations to IVS and IVS2 that are reasonably necessary in connection therewith; (y) to amend the LGIA to extend the Commercial Operation Date Interconnection Milestone for IVS2 thereunder to align with the “Commercial Operation Deadline” under the IVS2 PPA; and (z) to join IVS2 to the Centinela CTA. Buyer shall reimburse to Seller Parties all of their reasonable and documented expenses (including reasonable attorneys’ fees) incurred for performing Seller Parties’ obligations set forth in the prior sentence following the Closing Date, within twenty (20) Business Days of receipt of a reasonably documented invoice from Seller Parties regarding the same, provided such expenses have previously been approved by Buyer.

(c) Notwithstanding anything to the contrary contained in this Section 6.05, if the Parties are in an adversarial relationship in any Action, the furnishing of information, documents or records in accordance with any provision of this Section 6.05 shall be subject to applicable rules relating to discovery.

6.06 Information Rights. During the Interim Period, Seller shall provide Buyer with any monthly financial statements, operating reports and management reports (to the extent that such reports are not prohibited by the antitrust laws) for the Companies that are prepared by the Companies in the ordinary course of business and, for the avoidance of doubt, excluding any publicly available financial statements or reports that are prepared in connection with the Sellers’ Chapter 11 Cases and posted to the docket therefor.

6.07 Notification. Seller shall give reasonably prompt notice to Buyer, of (a) any Knowledge of, or notice or other communication from, any Person alleging that the consent of such Person which is or may be required in connection with the Transactions is not reasonably likely to be obtained prior to the Closing, (b) any written objection or proceeding that challenges the Transactions or the entry of the Sale Approval Order by the Bankruptcy Court, or (c) material notice received by Seller or any Company with respect to any Company Contract (and provide a copy to Buyer of such notice). To the extent permitted by Applicable Law, Seller shall give prompt notice to Buyer of (w) any written notice of any alleged violation of Law applicable to any Company and (x) the commencement of any investigation, inquiry or review by any Governmental Authority with respect to any Company or that any such investigation, inquiry or review, to the Knowledge of Seller, is contemplated. Prior to the Closing, each Party shall promptly disclose in writing to the other Party in reasonable detail (i) any breach of, or inaccuracy in, any of the representations or warranties of such disclosing Party contained herein,

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(ii) with respect to the Seller Parties only, the discovery, occurrence or non-occurrence of any change, effect, event, occurrence, state of facts or development that has had or is reasonably likely to have a Material Adverse Effect, (iii) any failure of such disclosing Party to comply with or satisfy any covenant or agreement hereunder or any event or condition that would otherwise result in the nonfulfillment of any of the conditions to such other Party’s obligations hereunder, and (iv) any Action pending or threatened in writing against (x) with respect to the Seller Parties only, any Company or (y) any Seller Party or Buyer, as applicable, in each case relating to this Agreement or the Transactions; provided, however, that no such disclosure, or other investigation or knowledge of Buyer or the Seller Parties, as applicable, or any of their respective Affiliates, representatives or designees, shall affect or be deemed to modify any representations or warranties of the other Party (or any rights, liabilities or obligations of any Party with respect thereto), as applicable, set forth in this Agreement or the conditions to the obligations of Buyer or Seller Party, as applicable, to consummate the Transactions or the remedies available to any party hereunder.

6.08 Resignations. Prior to the Closing, each Company shall deliver to Buyer the resignations of all directors, officers and managers of such Company.

6.09 CAISO Request. As soon as reasonably practicable after the date hereof, and in any case, no later than July 21, 2016, Seller will submit, and/or will cause its Affiliates that are parties to the LGIA to submit, to the California Independent System Operator Corporation (“CAISO”) a request in writing to amend the LGIA to extend the In-Service Date in the LGIA (as defined in the LGIA). Such written request will include all necessary supporting documentation to satisfy the commercial viability criteria for retention of deliverability beyond ten years in queue as specified in the applicable Standard Large Generator Interconnection Procedures under the CASIO Fifth Replacement FERC Electric Tariff. Seller shall provide Buyer with a reasonable opportunity to review and comment on such written request, including all necessary supporting documentation, prior to submission to the CAISO, and will consider any Buyer comments in good faith.

6.10 Termination of Affiliate Contracts. On five (5) Business Days’ prior written notice from Buyer or its designees, Seller Parent shall cause to be terminated on or prior to the Closing any Contract to which it or its Affiliates (other than the Companies), on the one hand, and any of the Companies, on the other hand, are parties including those set forth on Schedule 6.10(a), which termination shall be without any penalty, termination fee or similar payment payable by any Company as a result of such termination (notwithstanding anything to the contrary in the applicable Contract), and for the avoidance of doubt, Seller Parent shall be under no obligation to terminate, or cause to be terminated, any such Contract set forth on Schedule 6.10(b).

6.11 Employees. Notwithstanding anything to the contrary in the 2014 Non- Solicitation Agreement, in any agreement with any of their existing or former employees or otherwise, Seller Parties, on behalf of themselves and their respective Affiliates, agree that any Buyer or their respective Affiliates are expressly permitted to solicit and/or hire any person (i) who is not an employee of any Seller Party or its Affiliates as of the date hereof and who, immediately prior to cessation of such employment with such Seller Party or Affiliate, held a position equal to, or more junior than, “Director”, (ii) listed on Schedule 6.11; or (iii) whose

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employment with any Seller Parties or their Affiliates has been terminated involuntarily. Seller Parties, on behalf of themselves and their respective Affiliates, agree not to assert any claim against any applicable former employee or either Buyer (or any of their Affiliates) in connection with any such solicitation or hiring. Notwithstanding the foregoing, none of the Seller Parties shall have any obligation to cause TERP to release any individual from any existing non-solicit or non-competition restrictions.

6.12 Exclusivity. Unless and until an Auction Event, none of Seller Parent, Seller, or any Company or any of their respective officers, directors, employees, stockholders, representatives, agents, investment bankers and Affiliates shall, directly or indirectly, discuss, pursue, solicit, initiate, participate in, facilitate, encourage or otherwise enter into any discussions, negotiations, agreements or other arrangements regarding or which could lead to, an Alternative Transaction or provide any information to any Person other than Buyer and its Affiliates, representatives, agents and lenders other than information which is traditionally provided in the regular course of any Company’s business operations to third parties where any Company and its officers, directors and Affiliates have no reason to believe that such information may be utilized to evaluate any Alternative Transaction. Each Company, Seller Parent, Seller, any of their Affiliates and any of their respective officers, directors, employees, representatives, agents or investment bankers shall immediately after execution of this Agreement cease and cause to be terminated any and all contacts, discussions and negotiations with any Person other than Buyer and its Affiliates and representatives regarding the foregoing.

6.13 Credit Support.

(a) Each of Seller and Buyer shall use commercially reasonable efforts to enter into definitive documentation with the DIP Administrative Agent and the LC Issuers, for and on behalf of themselves and the LC Lenders, in form and substance reasonably satisfactory to Buyer, Seller and the DIP Administrative Agent, to (i) provide that the letters of credit (excluding, for the avoidance of doubt, the Surety Bond) set forth on Schedule 1.01(b) (collectively, the “Project LCs”) shall be amended and/or returned and reissued such that after giving effect to such amendment and/or reissuance each such Project LC shall have an expiry date 180 days after the Closing Date (the “LC Longstop Date”), and (ii)(A) require each Company to cause the applicable Project LCs to be cancelled and returned to the applicable LC Issuer in accordance with arrangements reasonably acceptable to such LC Issuer and the applicable Company (which arrangements shall also be reasonably acceptable to Seller) no later than the LC Longstop Date, (B) provide for the repayment by the Buyer and the Companies to the applicable LC Issuer of any amounts drawn on such Project LCs (or, to the extent Seller Parent or any of its Affiliates has repaid such drawn amounts, to pay the corresponding amount to Seller pursuant to Section 6.13(c)) no later than the LC Longstop Date and (C) incorporate the Project LC/Surety Bond Obligations applicable to the Project LCs as obligations of the Buyer and the Companies owing to the LC Lenders (collectively, all such definitive documentation providing as set forth Section 6.13(a)(i) and (ii), the “LC Return Documents”); provided that if any Project LC is (x) drawn in part or in full after the Closing Date, regardless of whether any such drawn amounts are repaid by or on behalf of any Company or any other Person or (y) not cancelled and returned undrawn to the applicable LC Issuer by the LC Longstop Date as provided in the preceding clause (ii)(A), Buyer will pay on the LC Longstop Date a fee of $2,500,000 in the aggregate (the “LC Fee”) to the DIP Administrative Agent for ratable

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distribution to the LC Lenders based on the value of their respective participation in the Project LCs. In the event the LC Fee is payable pursuant to this Section 6.13(a), the LC Fee shall be in addition to any amounts required to be repaid by Sellers (and their Affiliates), the Companies or any other Person in connection with a drawing under a Project LC (including pursuant to the DIP Facility) and any other amounts required to be paid by or on behalf of Buyer and the Companies pursuant to this Agreement and/or in connection with the transactions contemplated by this Section 6.13. For the avoidance of doubt, amounts paid in respect of Project LC/Surety Bond Obligations pursuant to the LC Return Documents (other than the LC Fee) shall offset (and not be in addition to) any amount payable in respect of the same under the DIP Facility, and vice versa.

(b) Effective as of the Closing, Buyer shall cause its Affiliates to, grant security interests, and create Liens for the benefit of the LC Lenders securing the obligations in respect of the Project LCs on a pari passu basis (but subject to certain exceptions on terms to be mutually agreed between the DIP Administrative Agent and the Senior Lenders (as defined below), or their representatives, with respect to assets that will secure the obligations owing to the Senior Lenders on a senior basis, to be limited to (x) the interest reserve account and (y) interest rate hedging agreements (in each case, subject to certain caps to be mutually agreed between the DIP Administrative Agent and the Senior Lenders)) and in respect of the same Project collateral as that provided to any financial institutions providing senior, secured loans or other accommodations to Buyer, its Affiliate(s) and/or the Companies in connection with the acquisition of the Project (the “Senior Lenders”). The security documents evidencing such Liens for the benefit of the LC Lenders shall be in form and substance reasonably satisfactory to Buyer, Seller and the DIP Administrative Agent (collectively, all such documents, the “LC Security Documents”).

(c) Each of Seller and Buyer shall use commercially reasonable efforts to cause the LC Lenders and each Senior Lender (or, if applicable, the administrative and collateral agents or similar representatives of the LC Lenders and the Senior Lenders, respectively) to enter into an intercreditor agreement relating to Liens described in Section 6.13(b) (the “LC Intercreditor Agreement”) to enter into the same), on customary terms and in form and substance reasonably satisfactory to the LC Lenders, the Senior Lenders, Seller and Buyer, it being agreed that such Liens granted or created for the benefit of the LC Lenders as described in Section 6.13(b) shall be pari passu to such Liens granted or created for the benefit of the Senior Lenders; provided that the LC Intercreditor Agreement may contain reasonable limitations to be agreed on the amount of obligations owed to each of the Senior Lenders and the LC Lenders, respectively, permitted to be secured on a pari passu basis with the Liens granted for the benefit of the LC Lenders and the Senior Lenders, respectively; provided however that after giving effect to any such limitation, such amount secured on a pari passu basis shall be no less than the sum, without duplication, of (a) the stated face amount of the Project LCs, plus (b) all interest and fees payable under in respect of the Project LCs and all reimbursement obligations in respect of any drawn amounts thereunder, in each case under the LC Return Documents, plus (c) all expense reimbursement and indemnity obligations payable under the under the LC Return Documents in respect of the Project LCs, plus (d) all amounts (including the LC Fee) payable to or for the benefit of the LC Lenders under this Agreement, including under this Section 6.13.

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(d) It is agreed and acknowledged by Buyer and Seller that the LC Lenders will continue to be secured in the collateral under the DIP Facility, and to enjoy certain rights and benefits under the DIP Facility; provided, however, that, for the avoidance of doubt and without derogation of the obligations of the Buyer, its Affiliates and the Companies pursuant to the LC Return Documents and the LC Security Documents, in no event shall (i) the Buyer, its Affiliates or the Companies be liable for any increased costs, expenses, fees or other amounts payable under the DIP Facility resulting from any act or omission by Seller, any Affiliate thereof or any other Person (other than the Buyer, the Companies, and/or any Affiliate of any thereof) in connection with the DIP Facility (as between Buyer and Seller, any such increased costs, expenses, fees or other amounts to be solely for the account of Seller and its Affiliates) or (ii) the availability or validity of the Project LCs (after amendment and reissuance thereof in accordance with Section 6.13(a)) be in any way reduced or limited in connection with any act or omission by Seller, any Affiliate thereof or any other Person (other than the Buyer, the Companies, and/or any Affiliate of any thereof) in connection with the DIP Facility.

(e) Within one hundred twenty (120) days after the Closing Date, Buyer shall cause Westchester Fire Insurance Company (the “Surety”) to terminate the Agreement of Indemnity, dated November 17, 2014, by and between Seller Parent and the Surety, as amended (the “Agreement of Indemnity”), in respect of the Surety Bond, and release Seller Parent and its Affiliates from all liabilities and obligations thereunder in respect of the Surety Bond.

(f) Project LC/Surety Bond Obligations Indemnity.

(i) Notwithstanding anything to the contrary contained in this Agreement, following Closing, Buyer and the Companies, jointly and severally, shall indemnify, defend and hold harmless the Seller Group from, against and in respect of any and all Project LC/Surety Bond Obligations paid by the Seller Group.

(ii) If any member of the Seller Group receives a demand for payment in respect of any Project LC/Surety Bond Obligations, the Seller Parties shall use commercially reasonable efforts to promptly notify Buyer of such demand, it being agreed, however, that any failure to provide such prior notice shall not diminish the Seller Group’s rights to indemnification hereunder. Without limiting the foregoing, Buyer and the Companies shall be jointly and severally obligated to directly pay any Project LC/Surety Bond Obligations promptly, and in no event later than five (5) Business Days after any Seller Party’s written demand therefor (or, if any member of the Seller Group elects to pays such Project LC/Surety Bond Obligations, to reimburse Seller in the full amount thereof). The obligation of Buyer and the Companies to the Seller Group to pay, or reimburse the Seller Group in respect of, any Project LC/Surety Bond Obligations in accordance with the terms of this Section 6.13(e) shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following circumstances:

(1) any lack of validity or enforceability of such Project LC/Surety Bond Obligations, this Agreement, any of the other agreements referred to in this Section 6.13 or any other agreement or instrument relating to any of the foregoing;

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(2) the existence of any claim, counterclaim, setoff, defense or other right that any Company or any member of the Buyer Group may have at any time against the Seller Group or any beneficiary or any transferee of such Project LC/Surety Bond Obligations (or any Person for whom any such beneficiary or any such transferee may be acting) or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by any Project LC, the Surety Bond or any agreement or instrument relating to any of the foregoing, or any unrelated transaction;

(3) any draft, demand, certificate or other document presented under or in connection with any Project LC or the Surety Bond proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a demand under any Project LC or the Surety Bond;

(4) any payment or distribution against a demand that does not strictly comply with the terms of the applicable Project LC or Surety Bond; or any payment or distribution on account of Project LC/Surety Bond Obligations to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Project LC or Surety Bond or related obligations;

(5) any other circumstance whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available in respect of, or a discharge of, any Project LC/Surety Bond Obligations.

(iii) Notwithstanding anything herein to the contrary, the rights of indemnification of the Seller Group pursuant to this Section 6.13(c) (x) may be assigned to any successor to any Seller Party (whether by operation of law, merger, consolidation or otherwise) or any acquirer of all or substantially all of the assets of the Seller Parent, in each case, to the extent such successor is continuing to maintain the Project LCs as contemplated by (and to otherwise comply with) Section 6.13 (to the extent not previously drawn) and (y) shall not be subject to the Deductible, Cap, sole remedy/recourse, escrow or temporal limitations relating to indemnification matters set forth in Article XI or any other limitation.

(iv) If Buyer or the Companies or any of their successors or assigns shall (A) consolidate with or merge into any other Person and shall not be the continuing or surviving company or entity of such consolidation or merger, or (B) transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of Buyer or the Companies, as the case may be, shall assume all of the obligations of Buyer and the Companies set forth in this Section 6.13.

6.14 Sun Lake Solar/NTR Obligations. At or prior to Closing, Seller shall cause Sun Lake Solar and IVS to execute, and shall use commercially reasonable efforts to cause NTR to

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execute an agreement regarding the subject matter of the NTR Letter Agreement, as updated in the form agreed upon by the Parties on June 30, 2016 (“Updated NTR Letter Agreement”).

6.15 Financing Cooperation Covenant.

(a) Buyer shall use its commercially reasonable efforts to arrange the Debt Financing as promptly as practicable following the date of this Agreement and to consummate the Debt Financing on the Closing Date. Such actions shall include the following: (i) maintaining in effect the Debt Commitment Letter, provided that Buyer may amend or replace (including with an alternative debt or equity financing arrangement) the Debt Commitment Letter, so long as such replacement or amendment would not adversely impact or delay in an material respect the ability of Buyer to consummate the Transactions or the Debt Financing; (ii) satisfying, or securing a waiver of, each of the conditions precedent in the Debt Commitment Letter on a timely basis; and (iii) negotiating, executing and delivering definitive Debt Financing Agreements that reflect the terms contained in the Debt Commitment Letter or such other terms acceptable to Buyer and its financing sources. If all conditions under the Debt Commitment Letter have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing (but subject to the fulfillment at the Closing or waiver of such condition)) and all conditions to Closing contained in Section 7.01 have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing (but subject to the fulfillment at the Closing or waiver of such condition)), Buyer shall use its commercially reasonable efforts to cause the Debt Financing Parties to fund the Debt Commitment Letter, in accordance with such Debt Commitment Letter, on the Closing Date the Debt Financing required to consummate the Transactions.

(b) Prior to the Closing, at Buyer’s sole expense, Seller Parties shall use commercially reasonable efforts to provide such assistance (and to cause their respective Subsidiaries (including each Company) and their respective personnel, advisors and representatives to provide such assistance to the extent reasonably available to provide any such assistance in light of their ordinary course responsibilities to the Seller Parties and their Affiliates) with the debt or other financing for the Transactions and the Project as is reasonably requested by Buyer; provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of the Companies. Such assistance shall include using commercially reasonable efforts to do the following: (i) take such actions as are reasonably requested by Buyer or its financing sources to facilitate the satisfaction on a timely basis of all conditions precedent to obtaining financing for the Transactions and the Project, to the extent satisfaction thereof is within the control of the Seller Parties and their respective Subsidiaries; (ii) take all actions as may be required or reasonably requested by Buyer or its financing sources in connection with the repayment of the existing debt at any Company; and (iii) cause the independent auditors of the Project or Companies to cooperate with any such financing. Prior to the Closing, the Seller Parties and Companies will provide or cause to be provided to Buyer and its financing sources such customary financial information that is reasonably available to the Seller Parties and Companies as may be necessary so that such financial information with respect to the Companies fairly presents in all material respects the financial condition of the Companies and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which such statements are made, not misleading in any material respect. Notwithstanding anything to the

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contrary herein, (1) neither the Seller Parties nor any of their Subsidiaries shall be required to pay any fees or incur any other liability in connection with such financing at any time, other than (x) reasonable out of pocket expenses reimbursed by Buyer hereunder or (y) with respect to the Companies, to the extent incurred at or after the occurrence of the Closing, (2) the Seller Parties and Companies shall not be required to deliver or cause the delivery of any legal opinions or accountants’ cold comfort letters or reliance letters or any certificate as to solvency or any other certificate necessary for such financing, (3) neither Seller Parties nor Companies shall be required to enter into, or take any action under, any certificate, agreement, arrangement, document or instrument relating to the financing that is not contingent upon the Closing or that would be effective prior to the Closing (and the execution by the Companies of any documents in connection with such financing will be subject to the consummation of the Transactions at the Closing and such documents will not take effect prior thereto), and (4) no Representative of any of Seller Parties or Companies shall be required to take any action that could reasonably be expected to result in or cause any liability (personal or otherwise) on the part of any such Representative unless Buyer agrees to pay or discharge such liability.

(c) Buyer will, and will cause its Affiliates to, promptly upon request by any of the Seller Parties, reimburse the Seller Parties for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by any of the Seller Parties, Companies or their Affiliates in connection with the cooperation of the Seller Parties and their Subsidiaries contemplated by this Section 6.15. Buyer acknowledges and agrees that no Person in the Seller Group shall have any responsibility for, or incur any liability to any Person under or in connection with, the arrangement of any financing that Buyer may obtain or seek to obtain in connection with the Transactions and the Project, and that Buyer shall indemnify and hold harmless the Seller Group from and against any and all losses suffered or incurred by them in connection with the arrangement of any such financing and any information utilized in connection therewith.

6.16 Insurance. Seller Parties shall maintain (or shall cause to be maintained) the insurance policies covering the Project in full force and effect, and shall not amend, modify, terminate or otherwise change any such policies without the prior written consent of Buyer (such consent not to be unreasonably withheld, conditioned or delayed).

6.17 [Intentionally Omitted].

6.18 [Intentionally Omitted].

6.19 Lien, Litigation and Title Search. Prior to Closing, Seller Parties shall reasonably cooperate with Buyer’s efforts to obtain lien, litigation and title searches with respect to each Company, provided that Seller Parties shall reimburse Buyer at Closing for 50% of its reasonable and document out-of-pocket costs and expenses related to such searches.

6.20 [Intentionally Omitted].

6.21 Waiver. Conditioned upon and effective solely from and after Closing, Buyer, on behalf of itself and its successors and assigns, and its present and former members, managers, shareholders, affiliates, subsidiaries, predecessors, directors, officers, employees, agents, legal

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representatives, and other representatives (Buyer and all such other Persons being referred to in this Section 6.21 collectively as the “Waiving Parties”), hereby absolutely, unconditionally, and irrevocably waive any and all demands, actions, causes of action, suits, damages, and any and all other claims, counterclaims, defenses, rights of set off, and liabilities whatsoever of every kind and nature, at law or in equity, which any Waiving Party now owns, holds, has, or claims to have, in each case, to seek secured status or priority unsecured status (including under any theories of constructive trust or otherwise) under the Bankruptcy Code of a Claim solely with respect to the specific cash Purchase Price received hereunder or the IVS3/IVS4/Sun Lake PSA by the Seller (as adjusted, if at all, in accordance with Sections 2.05 and 2.06) (each, a “Claim”) (excluding, for the avoidance of doubt, any timely claim against the Escrow Amount or pursuant to the proviso in Section 2.06(b)), with respect to which it is acknowledged and agreed by the Parties that Buyer shall have a first claim to such proceeds to the extent set forth in this Agreement. The Waiving Parties understand, acknowledge, and agree that, from and after Closing, the waiver set forth above may be pleaded as a full and complete defense to any such Claim and may be used as a basis for an injunction against any action, suit, or other proceeding which may be instituted, prosecuted, or attempted in breach of the provisions of such waiver (but only to the extent of the waiver set forth above). The Waiving Parties agree that, from and after Closing, no fact, event, circumstance, evidence, or transaction which could now be asserted or which may hereafter be discovered will affect in any manner the final, absolute, and unconditional nature of the waiver set forth above. Notwithstanding the foregoing, nothing herein shall prevent or bar the Waiving Parties from filing a proof of claim asserting, and receiving any recovery to which they are legally entitled in respect of, any allowed general unsecured claims the Buyer or its Affiliates may have against the Seller Parties in the Sellers’ Chapter 11 Cases (in each case, regardless of the legal priority to which such claim would otherwise be entitled but for the foregoing waiver), provided, however, that the Seller Parties and their Affiliates reserve any and all rights to object or otherwise respond to any such filed proof of claim. For the avoidance of doubt, all of each Waiving Party’s rights with respect to its other claims against the Seller Parties or any of its present or former members, managers, shareholders, Affiliates, subsidiaries, predecessors, directors, officers, employees, agents, legal representatives, or other representatives shall be fully preserved, and each Waiving Party shall have the right to assert all other claims against and receive any distribution to which it is entitled under law from Seller or such other Person with respect to all such other claims.

6.22 Buyer’s Acknowledgment Regarding “AS IS” Sale. Buyer agrees, warrants, and represents that except as set forth in this Agreement (and without limiting the representations and warranties of the Seller Parties set forth in ARTICLE III and ARTICLE IV): (a) Buyer is acquiring the Equity Interests on an “AS IS” and “WITH ALL FAULTS” basis based solely on Buyer’s own investigation of the Companies and the representations and warranties of the Seller Parties set forth in ARTICLE III and ARTICLE IV and (b) none of the Seller Parties or any broker or other Representative of the Seller Parties has made any warranties, representations or guarantees, express, implied or statutory, written or oral, in respect of the Equity Interests, the financial performance of the Companies or the business or assets of the Companies other than the representations and warranties of the Seller Parties set forth in ARTICLE III and ARTICLE IV. Each Party acknowledges that the consideration for the Equity Interests and other terms specified in this Agreement have been agreed upon by the Parties after good-faith arms-length negotiation in light of such agreement by Buyer to purchase the Equity Interests “AS IS” and “WITH ALL FAULTS”, subject to the representations and warranties of the Seller Parties set

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forth in ARTICLE III and ARTICLE IV, and the Seller Parties’ respective undertakings in this Agreement. Buyer agrees, warrants and represents that, except as set forth in this Agreement (including the representations and warranties of the Seller Parties set forth in ARTICLE III and ARTICLE IV), Buyer has relied, and shall rely, solely upon Buyer’s own investigation of all such matters, and that Buyer assumes all risks with respect thereto. EXCEPT AS SET FORTH IN THIS AGREEMENT (INCLUDING THE REPRESENTATIONS AND WARRANTIES OF THE SELLER PARTIES SET FORTH IN ARTICLE III AND ARTICLE IV), NO SELLER PARTY MAKES ANY EXPRESS WARRANTY, NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND NO IMPLIED OR STATUTORY WARRANTY WHATSOEVER WITH RESPECT TO ANY REAL OR PERSONAL PROPERTY OR ANY FIXTURES OR THE EQUITY INTERESTS.

ARTICLE VII

CONDITIONS TO OBLIGATIONS OF BUYER

7.01 Conditions to Obligations of Buyer. The obligations of Buyer to consummate the Closing are subject to the fulfillment, at or before such Closing, of each of the following conditions (all or any of which may be waived in whole or in part by Buyer in its sole and absolute discretion); provided, that Buyer may not rely on the failure of any such condition to be satisfied if such failure was caused by the breach by Buyer of any of its obligations set forth in this Agreement:

(a) Representations and Warranties. The representations and warranties of Seller Parent and Seller in (i) Sections 3.01, 3.02 and 3.04 and Sections 4.01, 4.02, 4.04, 4.05, 4.06, 4.11, 4.12, 4.17, 4.20, 4.21 and 4.22 respectively, shall be true and accurate in all respects to the extent qualified by “materiality” or “Material Adverse Effect” (including for the avoidance of doubt, Section 4.11) and otherwise shall be true and accurate in all material respects, in each case on and as of the Closing Date as though made on and as of such Closing Date, except for representations and warranties which are as of a specific date, in each case, which shall be true and accurate as of such date, and (ii) each of the other representations and warranties (without giving effect to any “materiality” or “Material Adverse Effect” qualifiers) of Seller Parties in ARTICLE III and ARTICLE IV shall be true and accurate in all respects on and as of the Closing Date as though made on and as of such Closing Date, except for representations and warranties which are as of a specific date, in each case, which shall be true and accurate as of such date, and except in the case of this clause (ii), for such failures to be true and accurate that do not have, individually or in the aggregate, a Material Adverse Effect.

(b) Performance. Seller Parent and Seller shall have performed and complied, in all material respects, with the agreements, covenants and obligations required by this Agreement to be so performed or complied with by them at or before the Closing.

(c) Officer’s Certificates.

(i) Seller Parent and Seller shall have delivered to Buyer at the Closing a certificate of an authorized officer of Seller Parent (with respect to the

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representations and warranties in ARTICLE III) and Seller (with respect to the representations and warranties in ARTICLE IV), each such certificate dated as of the Closing Date, as to the applicable matters set forth in Sections 7.01(a) and 7.01(b).

(ii) Seller shall have caused each Company to deliver a certificate, dated the Closing Date and executed by an authorized officer of such Company, certifying and attaching the following: (A) the Organizational Documents of such Company and (B) a good standing certificate of such Company issued by the secretary of state of the state of its formation.

(iii) Seller shall have delivered a certificate, dated the Closing Date and executed by an authorized officer of Seller, certifying and attaching the following: (A) the Organizational Documents of Seller, (B) one or more board or other resolutions or other authorizations of Seller authorizing the Transactions and the execution, delivery and performance of this Agreement, the Ancillary Agreements to which Seller is a party and any other instruments or agreements required thereunder to which Seller is a party and (C) a good standing certificate of Seller issued by the secretary of state of the state of its formation.

(d) Orders, Actions and Applicable Laws. There shall not be in effect on the Closing Date any Order or Applicable Law (x) restraining, enjoining or otherwise prohibiting or making illegal the consummation of the Closing or (y) restraining, enjoining or otherwise prohibiting or making illegal the continued development, construction and operation of the Project in the ordinary course of business consistent with past practice, excluding in the case of this clause (y), curable delays or omissions in obtaining Governmental Approvals incident to such activities, which Governmental Approvals are reasonably expected to be obtained in the ordinary course.

(e) Specified Approval. The consent of Southern California Edison Company in connection with the IVS2 PPA shall have been obtained (the “Specified Approval”).

(f) Ancillary Agreements. Seller and Seller Parent shall have delivered to Buyer the Ancillary Agreements to which Seller, Seller Parent or any of their Affiliates is a party, executed by Seller, Seller Parent or such Affiliate, as applicable, and such agreements shall be in full force and effect.

(g) IVS3/IVS4/Sun Lake PSA Closing. All of the “Equity Interests” (as defined in the IVS3/IVS4/Sun Lake PSA on the date hereof), shall have been transferred, free and clear of all Liens, to 93LF 8ME LLC or an Affiliate thereof.

(h) No Default. There shall be no material event of default or material breach that has not been cured within any applicable grace period or waived under any Company Contract that are Financing Agreements, power purchase agreements or interconnection agreements related to the Project.

(i) No Material Adverse Effect. Between the date hereof and the Closing Date, there shall not have occurred and be continuing, individually or in the aggregate, a Material Adverse Effect.

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(j) Private Sale Approval Order and Sale Procedures Order/Auction Sale Approval Order; Affidavits of Service.

(i) The Bankruptcy Court shall have entered (i) the Private Sale Approval Order in accordance with the terms hereof and such Order shall have become a Final Order prior to the Closing or (ii) if an Auction Event has occurred, the Sale Procedures Order and the Auction Sale Approval Order in accordance with the terms hereof and in either case such Orders shall have become Final Orders prior to the Closing; provided, however, in each case Buyer shall be entitled in its sole and absolute discretion to waive the requirement that such Order shall be a Final Order.

(ii) Seller Parties shall have delivered to Buyer copies of all affidavits of service of the Sale Motion, the Sale Procedures Order (if applicable) and notice of such motion and Order filed by or on behalf of Seller (which service shall comply with Section 12.01(c)).

(k) DIP Lender Consent under DIP Order. Buyer shall have received the consent of DIP Lenders (or subset thereof) to the Transactions required under the DIP Order, which, for the avoidance of doubt, may be provided verbally on the record at the Private Sale Hearing or Auction Sale Hearing, as applicable, if permitted under the DIP Order (which, if so provided, will have the same force and effect as written consent).

(l) NTR Agreement. Seller shall have delivered to Buyer the letter agreement contemplated by Section 6.14 duly executed by Sun Lake Solar, IVS and NTR.

(m) IVS Assignment. No condition or event has occurred after the date hereof, other than as a result of actions taken by Buyer, 8ME or any of their respective Affiliates, that would, on the written advice of outside counsel to Buyer, expressly prevent IVS from validly assigning portions of its Undivided Interest (as defined in the CSolar CTA) under the CSolar CTA to IVS2 and IVS3.

(n) Intentionally Omitted.

(o) Credit Support. To the extent (but only to the extent) that any LC Issuer will be required by Buyer to maintain any Project LC for the benefit of any Company or Buyer after Closing in accordance with Section 6.13(a), each of the agreements contemplated to be executed and delivered by Sections 6.13(a), 6.13(b) and 6.13(c), including the LC Return Documents, the LC Security Documents and the LC Intercreditor Agreement, shall have been executed and delivered by the parties thereto at or prior to the Closing.

ARTICLE VIII

CONDITIONS TO OBLIGATIONS OF SELLER

8.01 Conditions to Obligations of Seller. The obligations of Seller to consummate the Closing are subject to the fulfillment, at or before such Closing, of each of the following conditions (all or any of which may be waived in whole or in part by Seller in its sole and absolute discretion); provided, that Seller may not rely on the failure of any such condition to be

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satisfied if such failure was caused by the breach by Seller of any of its obligations set forth in this Agreement:

(a) Representations and Warranties. The representations and warranties (without giving effect to any “materiality” qualifiers contained therein) made by Buyer in ARTICLE V shall be true and accurate on and as of the Closing Date as though made on and as of such Closing Date, except for representations and warranties which are as of a specific date, in each case, which shall be true and accurate as of such date, with only such exceptions as would not in the aggregate have a material adverse effect on Buyer’s ability to consummate the Transactions.

(b) Performance. Buyer shall have performed and complied, in all material respects, with all agreements, covenants and obligations required by this Agreement to be so performed or complied with by them at or before the Closing.

(c) Officer’s Certificates. Buyer shall have delivered to Seller at the Closing a certificate of an authorized signatory of Buyer, dated as of the Closing Date, as to the matters set forth in Sections 8.01(a) and 8.01(b).

(d) Orders, Actions and Applicable Laws. There shall not be in effect on the Closing Date any final, non-appealable Order or Applicable Law prohibiting or making illegal the consummation of the Closing.

(e) Sale Approval Order. The Bankruptcy Court shall have entered (i) the Private Sale Approval Order or (ii) in the event of an Auction Event only, the Sale Procedures Order and the Auction Sale Approval Order.

(f) IVS3/IVS4/Sun Lake PSA Closing. Consummation of the transactions contemplated by the IVS3/IVS4/Sun Lake PSA shall have occurred.

(g) Credit Support. To the extent (but only to the extent) that any LC Issuer will be required by Buyer to maintain any Project LC for the benefit of any Company or Buyer after Closing in accordance with Section 6.13(a), each of the agreements contemplated to be executed and delivered by Sections 6.13(a), 6.13(b) and 6.13(c), including the LC Return Documents, the LC Security Documents and the LC Intercreditor Agreement, shall have been executed and delivered by the parties thereto at or prior to the Closing, in each case in form and substance reasonably satisfactory to the DIP Administrative Agent.

ARTICLE IX

TAX MATTERS

9.01 Transfer Taxes. All Transfer Taxes, if any, arising out of or in connection with the Transactions shall be borne fifty percent (50%) by Buyer and (50%) by Seller Parties. Buyer shall prepare and file all necessary documentation and Tax Returns with respect to such Taxes; provided, however, that Seller Parties shall cooperate with Buyer and take any action reasonably requested by Buyer which does not cause any Seller Party to incur any cost or inconvenience in order to minimize such Taxes.

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ARTICLE X

TERMINATION

10.01 Termination.

(a) This Agreement may be terminated, and the Transactions may be abandoned, at any time by written notice from any Party to the other Parties (except that no notice need be given if termination is pursuant to Section 10.01(a)(i) or (ii)):

(i) by mutual written consent of the Parties;

(ii) by any Party,

(1) if there shall be any Law or Order that makes consummation of the Transactions illegal or otherwise prohibited, or there shall be in effect an Order of the Bankruptcy Court or a Governmental Authority of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the Transactions; it being agreed that the Debtors shall promptly appeal any such adverse determination which is appealable (and pursue such appeal with reasonable diligence); or

(2) (i) in the event an Auction Event has occurred, if the Auction has concluded and Buyer was not the Prevailing Purchaser, or (ii) any of the Debtors, Seller Parties or Companies or their Subsidiaries enter into any definitive documentation for an Alternative Transaction or accept any bid in respect of an Alternative Transaction or consummate any Alternative Transaction, or (iii) the Bankruptcy Court enters an Order approving an Alternative Transaction;

(iii) by Buyer if there has been a breach by Seller or Seller Parent of any representation, warranty, covenant or agreement contained in this Agreement which (x) would result in a failure of a condition to Closing set forth in Sections 7.01(a) or 7.01(b) and (y) such breach is incapable of being cured or, if curable, is not cured by Seller or Seller Parent, as applicable, by the earlier of (i) within thirty (30) days after the giving of written notice of such breach or failure and (ii) the End Date; provided, that at the time of such termination, Buyer shall not be in material breach of their obligations under this Agreement;

(iv) by Seller, if there has been a breach by Buyer of any representation, warranty, covenant or agreement contained in this Agreement which (x) would result in a failure of a condition to Closing set forth in Sections 8.01(a) or 8.01(b) and (y) such breach is incapable of being cured or, if curable, is not cured by Buyer by the earlier of (i) within thirty (30) days after the giving of written notice of such breach or failure and (ii) the End Date; provided, that at the time of such termination, none of Seller or Seller Parent shall be in material breach of their obligations under this Agreement;

(v) by Buyer, if any Seller Chapter 11 Case is dismissed or converted to a case under Chapter 7 of the Bankruptcy Code;

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(vi) by any Party if the Closing has not occurred on or before one hundred and twenty (120) days after the Filing Date (as defined below) (the “End Date”);

(vii) by Buyer, if

(1) the Sale Motion shall not have been filed with the Bankruptcy Court on or prior to July 5, 2016 (the date the Sale Motion is filed, the “Filing Date”);

(2) in the event an Auction Event has not occurred, (i) the Private Sale Approval Order shall not have been entered by the Bankruptcy Court on or before the Trigger Date, or (ii) at any time after entry of the Private Sale Approval Order, such Private Sale Approval Order is reversed, stayed, vacated or otherwise modified;

(3) in the event an Auction Event has occurred, (i) the Sale Procedures Order shall not have been entered by the Bankruptcy Court on or before the Trigger Date, (ii) the Auction, if required pursuant to the Bidding Procedures and the Sale Procedures Order, has not been held on or before August 9, 2016, (iii) the Auction Sale Approval Order shall not have been entered by the Bankruptcy Court on or before August 11, 2016, (iv) at any time after entry of the Sale Procedures Order, such Sale Procedures Order (including the provisions therein relating to the Bid Protections) is reversed, stayed, vacated or otherwise modified by the Bankruptcy Court, or (v) at any time after entry of the Auction Sale Approval Order, such Auction Sale Approval Order is reversed, stayed, vacated or otherwise modified; provided, however, the deadlines for entry of the Sale Procedures Order and the Auction Sale Approval Order set forth in this paragraph shall be automatically extended by up to a maximum of five (5) Business Days in the aggregate for both such deadlines solely to the extent the Bankruptcy Court does not have availability to conduct the Private Sale Hearing or Auction Sale Hearing, as applicable, prior to such deadlines; or

(viii) by Buyer, on or after 5 p.m. Eastern time on August 21, 2016, if Closing shall not have occurred, provided that such termination right shall be exercised within three (3) Business Days after August 21, 2016;

(ix) by Buyer, if a trustee or examiner with expanded powers to operate or manage the financial affairs, the business or the reorganization of Seller is appointed in any Seller Chapter 11 Case, in each case without the consent of Buyer;

(x) by Buyer, if a Termination Date (as defined in the DIP Order as in effect immediately upon its entry by the Bankruptcy Court) has occurred;

(xi) by any Party if the IVS3/IVS4/Sun Lake PSA is terminated; or

(xii) by Seller if (i) all of the conditions set forth in Article VII have been and remain satisfied, or waived by Buyer (other than those that by their nature are intended to be satisfied at the Closing, but subject to the satisfaction or waiver thereof), (ii) the Seller Parties have irrevocably confirmed in writing that (A) all of the conditions

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set forth in Article VIII have been and remain satisfied, or waived by the Seller Parties (other than those that by their nature are intended to be satisfied at the Closing, but subject to the satisfaction or waiver thereof) and (B) the Seller Parties are prepared and able to consummate the Transactions, and (iii) Buyer fails to consummate the Transactions within two (2) Business Days following the receipt of Seller’s written confirmation of the foregoing clause (ii).

10.02 Effect of Termination. In the event that this Agreement is validly terminated pursuant to a right of termination as provided herein, then each of the Parties shall be relieved of its duties and obligations arising under this Agreement effective as of the date of such termination and such termination shall be without Liability to Buyer or Seller; provided, however, that (a) Sections 6.15(c), 10.01, 10.02, 10.03, 10.04 and ARTICLE XIV and the Sale Procedures Order (if entered by the Bankruptcy Court) shall survive any such termination and shall be enforceable hereunder and (b) the Seller Parties shall remain liable to Buyer for payment of the Breakup Fee and Expense Reimbursement as provided herein and in the Sale Procedures Order (if applicable). In no event shall any termination of this Agreement relieve any Party hereto of any Liability for any Willful Breach of this Agreement by such Party prior to such termination.

10.03 Breakup Fee and Expense Reimbursement.

(a) Subject to entry of the Sale Procedures Order or other Order of the Bankruptcy Court authorizing such payment, if (i) this Agreement is terminated pursuant to any of Sections 10.01(a)(ii)(2) or 10.01(a)(iii), and (ii) the Seller Parties or their Affiliates consummate an Alternative Transaction prior to, on or within, in each case, six (6) months following such termination, the Seller Parties shall, without the requirement of any notice or demand from Buyer or any application to or order of the Bankruptcy Court, pay, or cause to be paid, to the Buyer the Breakup Fee and Expense Reimbursement in cash directly at, and out of the proceeds paid upon, consummation of an Alternative Transaction, and such cash payment shall be made free and clear of all Liens and Liabilities.

(b) Except as otherwise provided in this Agreement, and whether or not the Transactions are consummated, the Seller Parties and Buyer shall, subject to this Section 10.03 and this ARTICLE X, bear their own expenses incurred or to be incurred in connection with the negotiation and execution of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the consummation of the Transactions.

(c) The Breakup Fee and the Expense Reimbursement shall be made by wire transfer of immediately available funds to an account or accounts designated by the Buyer to the Seller Parties in writing.

(d) Pursuant to the Sale Procedures Order, the Bankruptcy Court shall find and determine that the claim of the Buyer in respect of the Breakup Fee and the Expense Reimbursement shall be paid to the Buyer prior to any other payments being made out of the proceeds of any Alternative Transaction, and shall be paid to the Buyer free and clear of all prepetition and postpetition Liens and Liabilities, including, without limitation, all prepetition and postpetition Liens and Liabilities of the Prepetition Secured Parties and the DIP Secured

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Parties (as each such term is defined in the DIP Order) under, or otherwise described in, the DIP Order, in each case notwithstanding any provision to the contrary in the DIP Order or any other order of the Bankruptcy Court.

(e) Each of the Seller Parties acknowledges and agrees that (A) the payment of the Breakup Fee and the Expense Reimbursement are an integral part of the Transactions, (B) in the absence of Seller Parties’ obligations to make these payments, Buyer would not have entered into this Agreement, and (C) time is of the essence with respect to the payment of the Breakup Fee and the Expense Reimbursement.

(f) The Parties further acknowledge that the damages resulting from termination of this Agreement under circumstances where Buyer is entitled to the Breakup Fee and the Expense Reimbursement are uncertain and incapable of accurate calculation and that payment of the Breakup Fee and the Expense Reimbursement to Buyer is not a penalty but rather shall constitute liquidated damages in a reasonable amount that will compensate Buyer in the circumstances where Buyer is entitled to the Breakup Fee and the Expense Reimbursement for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in connection with evaluating, diligencing, negotiating, documenting, and performing the Transactions and corresponding transactions contemplated by any predecessor agreements among the Parties or their respective Affiliates in respect of the direct or indirect acquisition of any of the Company Group Entities (including the Transactions) and in reliance on this Agreement and on the expectation of the consummation of the Transactions, and that, without these agreements, Buyer would not enter into this Agreement.

(g) Notwithstanding anything to the contrary in this Agreement, in the event that this Agreement is terminated and Buyer is entitled to receive the Breakup Fee and the Expense Reimbursement, Buyer’s right to receive the Breakup Fee and the Expense Reimbursement shall be the sole and exclusive remedy of Buyer and any Person claiming by, through or for the benefit of Buyer against the Seller Group for any loss (whether in law or equity and whether based on contract, tort or otherwise) suffered as a result of any breach of any representation, warranty, covenant or agreement, the failure of the Transactions to be consummated, based upon, arising out of or relating to this Agreement (including any breach or alleged breach hereof), the negotiation, execution or performance of the Transactions or in respect of any oral or written representations made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise.

(h) Without limiting Section 10.03(a), upon payment of the Breakup Fee and the Expense Reimbursement, neither Buyer nor any member of the Buyer Group shall have any rights or claims against Seller Parties (or any other member of the Seller Group) under this Agreement, whether at law or equity, in Contract in tort, based on fraud or otherwise, and Seller Parties shall not (and no member of the Seller Group shall) have any further liability relating to or arising out of this Agreement or the Transactions, and Buyer agrees to cause any such action or proceeding pending in connection with this Agreement or any of the Transactions by any member of the Buyer Group against the Seller Parties or any member of the Seller Group to be dismissed with prejudice promptly, and in any event within five Business Days thereafter. Nothing in this Section 10.03 shall in any way expand or be deemed or construed to expand the circumstances in which Seller Parties or any other member of the Seller Group may be liable

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(i) Without limiting Section 10.03(a), notwithstanding any other provision of this Agreement, Buyer agrees that, in the event that this Agreement is terminated, the maximum aggregate monetary liability of the Seller Parties, and any other member of the Seller Group to Buyer or any Person claiming by, through or for the benefit of Buyer or any other member of the Buyer Group for any loss (whether in law or equity and whether based on contract, tort or otherwise) suffered as a result of any breach of any representation, warranty, covenant or agreement, the failure of the Transactions, based upon, arising out of or relating to this Agreement (including any breach or alleged breach hereof or thereof), the negotiation, execution or performance hereof or the Transactions or in respect of any other document or theory of law or equity or in respect of any oral or written representations made or alleged to be made in connection herewith, whether at law or equity, in contract, in tort, based on fraud or otherwise shall be limited to an amount equal to the Breakup Fee and the Expense Reimbursement and in no event shall Buyer seek to recover, and Buyer shall cause each member of the Buyer Group not to seek to recover, any money damages in excess of an amount equal to the Breakup Fee and the Expense Reimbursement.

10.04 Reverse Termination Fee.

(a) In the event that this Agreement is terminated by Seller pursuant to Section 10.01(a)(iv) or Section 10.01(a)(xii), then Buyer shall promptly, but in no event later than five (5) Business Days after the date of such termination, pay or cause to be paid to Seller or its designees (an amount equal to $6,400,000) (the “Reverse Termination Fee”) by wire transfer of same day funds (it being understood that in no event shall the Reverse Termination Fee be paid or payable on more than one occasion).

(i) Notwithstanding anything to the contrary, in the event that this Agreement is terminated and Seller is entitled pursuant to this Section 10.04(a) to (or Buyer or Buyer Guarantor otherwise pays or causes to be paid) the Reverse Termination Fee, Seller’s receipt of the Reverse Termination Fee shall be the sole and exclusive remedy of Seller or any other member of the Seller Group, except for Seller’s right solely against Buyer in respect of Buyer’s express reimbursement obligations in Section 6.15(c), against (i) Buyer, (ii) the former, current and future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees of any Person named in clause (i) any future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders, assignees of any of the foregoing (the Persons described in clauses (i) and (ii), collectively, the “Buyer Group”) or (iii) any lender or prospective lender, lead arranger, arranger, agent or representative of or to Buyer or any other member of the Buyer Group, including, each party to the Debt Commitment Letter, and their respective Affiliates, and their respective officers, directors, employees, agents, successors and assigns (the Persons described this clause (iii), the “Lender Group”) for any Loss

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suffered as a result of any breach of any representation, warranty, covenant or agreement or the failure of the Transactions to be consummated.

(ii) Without limiting Section 10.04(a), upon payment of the Reverse Termination Fee, except in for Buyer’s express reimbursement obligations in Section 6.15(c), none of Seller Parties or any member of the Seller Group shall have any rights or claims against Buyer (or any other member of the Buyer Group or any member of the Lender Group) under this Agreement, the Debt Commitment Letter, or otherwise, whether at law or equity, in Contract in tort, based on fraud or otherwise, and Buyer shall not (and no member of the Buyer Group or Lender Group shall) have any further liability relating to or arising out of this Agreement or the Transactions (including any related debt or equity financing), and the Seller Parties agree to cause any such action or proceeding pending in connection with this Agreement or any of the Transactions by any member of the Seller Group against Buyer or any member of the Buyer Group or Lender Group to be dismissed with prejudice promptly, and in any event within five Business Days thereafter. Nothing in this Section 10.04 shall in any way expand or be deemed or construed to expand the circumstances in which Buyer or any other member of the Buyer Group or Lender Group may be liable under or relating to this Agreement or any of the Transactions (including the Debt Financing) or any rights of any member of the Seller Group.

(c) It is acknowledged and agreed that while the Seller Parties may simultaneously seek specific performance as and only to the extent expressly permitted by Section 14.12 and, alternatively, payment of the Reverse Termination Fee (subject to the waiver and dismissal with prejudice of any Claim for specific performance), in no event shall any Seller Parties (or, for the avoidance of doubt, any other members of the Seller Group) be permitted or entitled to receive both a grant of specific performance to require the consummation of the Transactions and payment of the Reverse Termination Fee (it being understood and agreed for the avoidance of doubt that the Reverse Termination Fee shall only be payable in the event of an actual and valid termination of this Agreement pursuant to Sections 10.01(a)(iv) or (xii) and such specific performance shall only be available prior to a valid termination of this Agreement).

(d) Without limiting Section 10.04(a) and notwithstanding any other provision of this Agreement, the Seller Parties agree that, in the event that this Agreement is terminated, except for Buyer’s express reimbursement obligations in Section 6.15(c), the maximum aggregate monetary liability of Buyer, any other member(s) of the Buyer Group and any member(s) of the Lender Group (in the aggregate) to the Seller Parties or any Person claiming by, through or for the benefit of the Seller Parties or any other member of the Seller Group for any loss (whether in law or equity and whether based on contract, tort or otherwise) suffered as a result of any breach of any representation, warranty, covenant or agreement, the failure of the Transactions, based upon, arising out of or relating to this Agreement (including any breach or alleged breach hereof or thereof), the negotiation, execution or performance hereof or the Transactions or in respect of any other document or theory of law or equity or in respect of any oral or written representations made or alleged to be made in connection herewith, whether at law or equity, in contract, in tort, based on fraud or otherwise shall be limited to an amount equal to the Reverse Termination Fee and in no event shall Seller Parties seek to recover, and they

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(e) Each of the Parties acknowledges and agrees that (i) the payment of the agreements contained in this Section 10.04 are an integral part of the Transactions, (ii) in the absence of Buyer’s obligations to make these payments, the Parties would not have entered into this Agreement, and (iii) time is of the essence with respect to the payment of the Reverse Termination Fee.

(f) The Parties further acknowledge that the damages resulting from termination of this Agreement under circumstances where Seller is entitled to the Reverse Termination Fee are uncertain and incapable of accurate calculation and that payment of the Reverse Termination Fee to Seller is not a penalty but rather shall constitute liquidated damages in a reasonable amount that will compensate Seller in the circumstances where Seller is entitled to the Reverse Termination Fee for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in connection with evaluating, diligencing, negotiating, documenting, and performing the Transactions and in reliance on this Agreement and on the expectation of the consummation of the Transactions, and that, without these agreements, Seller would not enter into this Agreement.

ARTICLE XI

SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION

11.01 Survival.

(a) The representations and warranties of any Seller Party contained in ARTICLE III or ARTICLE IV of this Agreement or in any certificate with respect thereto delivered pursuant to this Agreement and the representations and warranties of Buyer contained in or ARTICLE V shall survive the Closing for twelve (12) months following such Closing (the “Survival Period Termination Date”).

(b) If a Party delivers an indemnification notice to the other Party before the expiration of a representation or warranty, then the right to assert a claim for indemnification with respect to the applicable representation or warranty shall survive until the resolution of the matter covered by such notice. No claim for indemnification may be made after the expiration of the Survival Period Termination Date.

11.02 Indemnification.

(a) Subject to the limitations set forth in this ARTICLE XI, subsequent to the Closing Date, Seller Parent shall, jointly and severally with Seller indemnify, hold harmless and defend Buyer and its Affiliates (including after Closing each Company) against any liability, loss, cost, expense or reasonable attorneys’ fees (collectively, “Losses” and individually, a “Loss”) that any of the foregoing suffers as a result of (i) any breach or inaccuracy of the representations and warranties (each such breach a “Warranty Breach”) of Seller set forth in ARTICLE IV or (ii) any breach of any covenant or agreement of any Seller Party contained in this Agreement or in any certificate delivered pursuant to this Agreement, (iii) any Seller

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Indemnified Taxes, (iv) the Equinix PPA and (v) other than Company Liabilities to the extent reducing the Purchase Price, any obligations or other Liabilities of any Company to any Person, in each case, to the extent based upon or arising out of any actions, inactions, events, facts or circumstances existing prior to Closing, whether known, unknown, absolute, accrued, contingent, fixed, determined, determinable, indeterminate or otherwise, and whether due or to become due, and whether for payment, indemnification, reimbursement, performance or otherwise (in each case, whether or not required under GAAP to be reflected or disclosed on a balance sheet or the notes thereto).

(b) Subject to the limitations set forth in this ARTICLE XI, subsequent to the Closing Date, Buyer shall indemnify, hold harmless and defend Seller and its Affiliates against any Loss that any of the foregoing suffers as a result of (i) any breach or inaccuracy of the representations and warranties by Buyer set forth in ARTICLE V, (ii) any breach of any covenant or agreement of Buyer contained in this Agreement or in any certificate delivered pursuant to this Agreement and (iii) any Buyer Indemnified Taxes.

(c) Except as otherwise required by Law, the Parties shall treat for all Tax purposes any indemnification payment made hereunder first as a reimbursement of the item giving rise to such indemnification payment, and any excess as an adjustment to the Purchase Price.

11.03 Third Party Claims. The obligations and liabilities of an Indemnifying Party with respect to Losses resulting from the assertion of liability by third parties (each such obligation and liability, a “Third Party Claim”) shall be subject to the following terms and conditions:

(a) The Indemnified Party shall promptly give written notice to the Indemnifying Party of any Third Party Claim that might give rise to any Loss by the Indemnified Party, stating the nature and basis of such Third Party Claim, and the amount thereof to the extent known; provided, however, that no delay on the part of the Indemnified Party in so notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder except to the extent the Indemnifying Party is materially prejudiced thereby. Such notice shall be accompanied by copies of all relevant material documentation with respect to such Third Party Claim, including any summons, complaint or other pleading that may have been served, any written demand or any other material document or instrument.

(b) From and after receipt of notice of a Third Party Claim pursuant to Section 11.03(a), the Indemnifying Party shall have the right to assume and conduct, at its own expense, the defense against the Third Party Claim in its own name or in the name of the Indemnified Party with counsel reasonably acceptable to the Indemnified Party if the Indemnifying Party has, based on the facts and circumstances available at the time, unconditionally acknowledged in writing its obligation to indemnify the Indemnified Party in respect of such Third Party Claim in accordance with and subject to the terms of this Agreement and without prejudice to the amount of any Loss. Any Indemnified Party shall have the right to employ separate counsel in any such Third Party Claim or to participate in the defense thereof, but the fees and expenses of such counsel shall not be included as part of any Loss incurred by the Indemnified Party and shall not be payable by the Indemnifying Party; provided, however, that if the representation of any such Indemnified Party by the same counsel as the Indemnifying

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Party would be inappropriate under applicable standards of professional conduct, the Indemnified Party shall be entitled to appoint one separate counsel for such claims and defenses, at the reasonable cost and expense of the Indemnifying Party. The party or parties conducting the defense of any Third Party Claim shall keep the other parties apprised of all significant developments with respect thereto and shall not enter into any settlement, compromise or consent to judgment with respect to such Third Party Claim without the prior consent of the other parties thereto, such consent not to be unreasonably withheld; provided, however, that the Indemnifying Party shall be entitled to settle, compromise or consent to a judgment without the consent of the Indemnified Party with respect to a Third Party Claim that only imposes monetary obligations that are paid by the Indemnifying Party and contains an unconditional and irrevocable release of the Indemnified Party and all its Affiliates and their respective employees, directors, officers, managers and other related Persons from all liability thereunder. The Indemnified Party shall make available all information and assistance for the defense of the Third Party Claim as the Indemnifying Party may reasonably request and shall cooperate reasonably with the Indemnifying Party in such defense.

(c) Notwithstanding the foregoing, if Buyer determines in good faith that an adverse determination with respect to a Third Party Claim would reasonably be expected to be materially detrimental to the future business prospects or operations of the Companies, taken as a whole, Buyer may, by notice to the Indemnifying Party, assume the exclusive right to defend, compromise or settle such Third Party Claim; provided, that the Indemnifying Party will not be bound by any compromise or settlement effected without its consent not to be unreasonably withheld, conditioned or delayed.

11.04 Limitations on Indemnification.

(a) As to any claim for Warranty Breach (other than with respect to a claim for a breach or inaccuracy of a Fundamental Representation), the Indemnified Party shall not be entitled to indemnification (i) with respect to any Loss or a series of related Losses for less than $25,000 and (ii) until all Losses (including any de minimis Loss excluded pursuant to the foregoing clause (i)) to such Indemnified Party exceed, in the aggregate, an amount equal to $100,000 (the “Deductible”) and then only to the extent of such excess. In no event shall the Seller Parties in the aggregate be responsible for Losses in excess of the Escrow Amount (the “Cap”) for claims in the aggregate for indemnification pursuant to Section 11.02(a).

(b) In no event shall Buyer be liable for any Losses as to any claim for indemnification based on an inaccuracy or breach of any representation and warranty (other than with respect to a claim for a breach or inaccuracy of a Fundamental Representation), (i) with respect to any Loss or a series of related Losses for less than $25,000, and (ii) until all Losses (including any de minimis Loss excluded pursuant to the foregoing clause (i)) to Seller and its Affiliates exceed, in the aggregate, an amount equal to the Deductible and then only to the extent of such excess. In no event shall Buyer be responsible for Losses in excess in the aggregate of the Cap for claims for indemnification pursuant to Section 11.02(b).

(c) Solely for the purposes of this ARTICLE XI, from and after Closing any reference to “material”, “materially” or “Material Adverse Effect” in any representation or warranty (other than those representations and warranties in Sections 4.11 and 4.13 and the first

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sentence of 4.09) shall be disregarded solely for purposes of determining the amount of Losses attributable to any Warranty Breach, and for purposes of determining whether there has actually been a Warranty Breach.

(d) Buyer, Seller and Seller Parent on behalf of each of their respective Indemnified Parties waives any right to recover, indirect, special, exemplary or punitive damages, unless such indirect, special, exemplary, punitive or other kind of special damages are awarded to a Person in an indemnifiable Third Party Claim.

(e) Each Person entitled to indemnification hereunder shall use commercially reasonable efforts to mitigate all Losses upon becoming aware of any event or circumstance that could reasonably be expected to give rise to any Losses that are indemnifiable under this ARTICLE XI. If such Indemnified Party mitigates its Losses after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of that loss, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the extent of the value of the benefit to the Indemnified Party of that mitigation (less the Indemnified Party’s reasonable costs of mitigation) within two Business Days after the benefit is received, but such payment shall not exceed the indemnity payment paid by the Indemnifying Party.

(f) Any indemnifiable claim with respect to any breach by a Party of a representation and warranty shall be net of any insurance proceeds actually received by the Indemnified Party or amounts actually recovered from any other Person alleged to be responsible therefor (net of Taxes, any costs of collection, increased premium or other out-of-pocket costs related to the insurance claim or third party recovery in respect of Losses). If the Indemnified Party receives any amounts under applicable insurance policies, or from any other Person alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party, 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 Taxes, costs of collection, increased premium or other out-of-pocket costs related to the insurance claim or third party recovery in respect of Losses).

(g) For the avoidance of doubt, no knowledge of Buyer or any of its Affiliates, representatives or designees shall limit, affect or be deemed to modify the remedies available to Buyer or any of its Affiliates under this ARTICLE XI.

11.05 Manner of Payment; Escrow.

(a) Any indemnification of Seller or its Affiliates pursuant to this ARTICLE XI shall be effected by wire transfer of immediately available funds from Buyer or on its behalf to an account designated in writing by Seller or an Affiliate of Seller within five (5) days after the final determination thereof. Any indemnification of Buyer or its Affiliates pursuant to this ARTICLE XI shall be effected by wire transfer of immediately available funds from the Escrow Account to an account or accounts designated in writing by the applicable Indemnified Party within five (5) days after the final determination thereof. The available funds in the Escrow

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Account shall be Buyer and its Affiliates’ sole and exclusive source of recovery for claims for indemnification pursuant to Section 11.02(a).

(b) Any funds remaining in the Escrow Account as of the Survival Period Termination Date (minus the aggregate amount claimed by Buyer or its Affiliates pursuant to claims made against such funds prior to the Survival Period Termination Date in accordance with this ARTICLE XI and the Escrow Agreement, not fully resolved prior to such date and continued to be contested in good faith by Buyer or such Affiliate of Buyer) shall be released to Seller Parent. At any time following the Survival Period Termination Date, to the extent the funds held in the Escrow Account exceed the aggregate amount claimed by Buyer and its Affiliates pursuant to claims made prior to the Survival Period Termination Date in accordance with this ARTICLE XI and the Escrow Agreement, not fully resolved prior to the time of determination and continued to be contested in good faith by Buyer or Affiliate of Buyer, the excess funds shall be promptly released to Seller Parent.

(c) Seller Parent and Buyer shall promptly (and in any event within two (2) Business Days of a valid request therefor) deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to make any distributions from the Escrow Account expressly provided for herein.

11.06 Remedies Exclusive. From and after Closing, the indemnification rights of the Parties under this ARTICLE XI are the exclusive remedies available to the Parties and any Indemnified Party with respect to any claims or disputes arising with respect to any and all claims arising out of, in connection with or relating to the subject matter of this Agreement.

ARTICLE XII

BANKRUPTCY COURT MATTERS

12.01 Sale Motion; Other Matters.

(a) Within three (3) Business Days of the execution of this Agreement, Seller Parties shall file with the Bankruptcy Court the Sale Motion seeking approval of (i) the Private Sale Approval Order and (ii) in the event of an Auction Event, the Sale Procedures Order and Auction Sale Approval Order.

(b) Subject to the occurrence of an Auction Event and the Bankruptcy Court’s entry of the Sale Procedures Order, the Seller shall conduct an Auction in accordance with, and otherwise comply with, the Bidding Procedures and the Sale Procedures Order to enable additional Qualified Bidders to bid for the Equity Interests, and pursuant to the Sale Procedures Order, the Seller Parties shall comply with the Bidding Procedures in all respects unless otherwise agreed in writing by the Buyer. The Seller Parties and the Buyer agree, and the Auction Sale Approval Order, to the extent applicable, shall reflect the fact that, the provisions of this Agreement: (i) are reasonable, (ii) were a material inducement to the Buyer to enter into this Agreement and (iii) are designed to achieve the highest or best offer for the Equity Interests.

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(c) The Seller Parties shall reasonably promptly serve true and correct copies of the Sale Motion and all related pleadings (i) in accordance with the Sale Procedures Order (if applicable), the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, the Local Rules for the United States Bankruptcy Court for the Southern District of New York and any applicable order of the Bankruptcy Court and (ii) to any Person requested by Buyer to the extent such Person has not been otherwise served.

12.02 Private Sale Approval Order. Prior to the occurrence of an Auction Event, the Private Sale Approval Order shall be entered by the Bankruptcy Court Without limiting the foregoing, the Private Sale Approval Order shall, among other things, (a) approve, pursuant to Sections 105 and 363 of the Bankruptcy Code, (i) the execution, delivery and performance by Seller of this Agreement, (ii) the sale of the Equity Interests to Buyer on the terms set forth herein and free and clear of all Liens as a private sale without any requirement for any further marketing of, or any auction process, and (iii) the performance by Seller of its obligations under this Agreement; (b) find that Buyer is a “good faith” buyer within the meaning of Section 363(m) of the Bankruptcy Code, not a successor to Seller and grant Buyer and its designees the protections of Section 363(m) of the Bankruptcy Code; and (c) find that (i) neither Seller nor Buyer has engaged in any collusion with any other Person or have taken any other action or inaction that would cause or permit the Transactions to be avoided or costs or damages to be imposed under Section 363(n) of the Bankruptcy Code or otherwise and (ii) the consideration provided by Buyer for the Equity Interests under this Agreement constitutes fair consideration and reasonably equivalent value for purposes of all laws of the United States, any state, territory, possession or the District of Columbia, and the Transactions may not be avoided under Section 363(n) of the Bankruptcy Code. Buyer agrees that it will reasonably promptly take such commercially reasonable efforts as are reasonably requested by Seller to assist in obtaining Bankruptcy Court entry of the Private Sale Approval Order, including furnishing affidavits or other documents or information for filing with the Bankruptcy Court for purposes, among others, of demonstrating that Buyer is a “good faith” purchaser under Section 363(m) of the Bankruptcy Code. In the event any Person seeks to stay or otherwise enjoin the consummation of the Transactions, the Debtors shall use commercially reasonable efforts to prevent any such stay or other injunction from taking effect.

12.02 Compliance With Bidding Procedures Order. From and after the occurrence of an Auction Event, Seller shall comply with the Bidding Procedures and the Sale Procedures Order, in each case both prior to and after the Bankruptcy Court approval or entry thereof, as applicable.

12.03 Auction Sale Approval Order. Solely in the event that an Auction Event occurs, the Auction Sale Approval Order shall be entered by the Bankruptcy Court. Without limiting the foregoing, the Auction Sale Approval Order shall, among other things, (a) approve, pursuant to Sections 105 and 363 of the Bankruptcy Code, (i) the execution, delivery and performance by Seller of this Agreement, (ii) the sale of the Equity Interests to the Buyer on the terms set forth herein and free and clear of all Liens, and (iii) the performance by Seller of its obligations under this Agreement; (b) find that the Buyer is a “good faith” buyer within the meaning of Section 363(m) of the Bankruptcy Code, not a successor to Seller and grant the Buyer and its designees the protections of Section 363(m) of the Bankruptcy Code; and (c) find that (i) neither Seller nor Buyer has engaged in any collusion with other Person or have taken any other action or inaction that would cause or permit the Transactions to be avoided or costs or damages to be imposed

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under Section 363(n) of the Bankruptcy Code or otherwise and (ii) the consideration provided by the Buyer for the Equity Interests under this Agreement constitutes fair consideration and reasonably equivalent value for purposes of all laws of the United States, any state, territory, possession or the District of Columbia, and the Transactions may not be avoided under Section 363(n) of the Bankruptcy Code. Buyer agrees that it will reasonably promptly take such commercially reasonable efforts as are reasonably requested by Seller to assist in obtaining Bankruptcy Court entry of the Auction Sale Approval Order, including furnishing affidavits or other documents or information for filing with the Bankruptcy Court for purposes, among others, of demonstrating that the Buyer is “good faith” purchasers under Section 363(m) of the Bankruptcy Code. In the event any Person seeks to stay or otherwise enjoin the consummation of the Transactions, the Debtors shall use commercially reasonable efforts to prevent any such stay or other injunction from taking effect.

ARTICLE XIII

INTENTIONALLY OMITTED

ARTICLE XIV

MISCELLANEOUS

14.01 Entire Agreement. This Agreement and the Ancillary Agreements supersede all prior discussions and agreements among the Parties with respect to the subject matter hereof and thereof, and contain the sole and entire agreement among the Parties with respect to the subject matter hereof and thereof.

14.02 Confidentiality. From and after the Closing, Seller will hold, and will use its reasonable best efforts to cause its Affiliates and Representatives to hold, in strict confidence from any other Person all information and documents relating to the Companies, provided that nothing in this sentence shall limit the disclosure by any Party of any information (a) to the extent required by Applicable Law or judicial process (provided that if permitted by Applicable Law, Seller agrees to give Buyer prior notice of such disclosure and reasonably cooperate, at Buyer’s sole cost and expense, with any efforts by Buyer or its Affiliates to seek confidential treatment of any such information required by Law to be disclosed), (b) in connection with any litigation among the Parties or their Affiliates, (c) in an Action brought by a Party in pursuit of its rights or in the exercise of its remedies under this Agreement, (d) to the extent that such documents or information can be shown to have come within the public domain through no action or omission of the disclosing Party or its Affiliates in violation hereof, (e) to its Affiliates (but the Party shall be liable for any breach by its Affiliates), (f) to its actual or prospective investors, advisors, lenders, underwriters, legal representatives or other third parties who have a reason to know and (g) to investors, purchasers or other assignees of any Company.

14.03 Announcements. No Party shall, directly or indirectly, issue any press release or other public statement relating to the terms of this Agreement or the Transactions or use the other Parties’ names or refer to the other Parties directly or indirectly in connection with its relationship with the other Parties in any media interview, advertisement, news release, press release or professional or trade publication, or in any print media, whether or not in response to

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an inquiry, without giving the other Party a reasonable opportunity to review and comment on any proposed press release or other public, unless such review and comment is prohibited by Applicable Law or the applicable requirements of a regulated securities exchange.

14.04 No Waiver. No failure on the part of any Party to exercise and no delay in exercising, and no course of dealing with respect to, any right, remedy, power or privilege under this Agreement shall operate as a waiver of such right, remedy, power or privilege, nor shall any single or partial exercise of any right, remedy, power or privilege under this Agreement preclude any other or further exercise of any such right, remedy, power or privilege or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided in this Agreement are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Applicable Law.

14.05 Amendments. Any provision of this Agreement may be amended, modified, supplemented or waived only by an instrument in writing duly executed by Seller and Buyer. Any such amendment, modification, supplement or waiver shall be for such period and subject to such conditions as shall be specified in the instrument effecting the same and shall be binding upon the Parties, and any such waiver shall be effective only in the specific instance and for the purposes for which given.

14.06 Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made as of the date delivered or sent if delivered personally or sent by facsimile or electronic transmission in PDF format, on the next Business Day if sent by prepaid overnight carrier (providing proof of delivery) or on the fifth (5th) Business Day following the date of mailing if delivered by registered or certified mail (postage prepaid, return receipt requested) to the Parties at the following addresses, facsimile numbers or email addresses (or at such other addresses, facsimile numbers or email addresses as shall be specified by the Parties by like notice):

if to Buyer:

c/o D. E. Shaw Renewable Investments, L.L.C. th 1166 Avenue of the Americas, 6 Floor New York, New York 10036 Attn: General Counsel Facsimile: (212) 478-0100

With a copy to (which shall not constitute notice):

Latham & Watkins LLP 555 Eleventh Street, NW Suite 1000 Washington, D.C. 20004-1304 Attn: John Sachs, Eli Hunt and Peter Knight Facsimile: (202) 637-2201 (John Sachs), (312) 993-9767 (Peter Knight), (212) 906-1354 (Eli Hunt)

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Email: [email protected], [email protected] and [email protected]

if to Seller Parent or Seller:

SunEdison Inc. 13736 Riverport Drive, Suite 180 Maryland Heights, Missouri 63043 Attn: General Counsel Facsimile: (866) 773-0791 Email: [email protected]

with a copy to (which shall not constitute notice):

Skadden, Arps, Slate, Meagher & Flom LLP 1440 New York Avenue, N.W. Washington, D.C. 20005 Attn: Shana Elberg and Richard Oliver Facsimile: (202) 393-5760 Email: [email protected] [email protected]

14.07 Captions. The captions and section headings appearing in this Agreement are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Agreement.

14.08 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction and, in lieu of such prohibited or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such prohibited or unenforceable provision as may be possible.

14.09 Assignment.

(a) Subject to Section 14.09(b), the rights and obligations of the Parties under this Agreement are not assignable without the prior written consent of the other Parties, which such Parties may withhold in their discretion.

(b) Buyer may assign all or any part of this Agreement (or Buyer’s rights or obligations hereunder) to one or more of (i) Buyer’s Affiliates, (ii) 8ME or any of its Affiliates or (iii) any Person in which Buyer or its Affiliates are members. Buyer may assign, without any Seller Parties’ consent, its rights and obligations hereunder to its financing sources as collateral security in connection with the financing related to the Transactions. No assignment permitted under this Section 14.09(b) shall enlarge, alter or change any obligation of another Party or relieve the assigning Party of any liability hereunder.

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14.10 Counterparts; Third Party Beneficiaries. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the Parties may execute this Agreement by signing any such counterpart. Except as set forth in Section 14.17, no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.

14.11 Disclosure. Seller has set forth information on the Disclosure Schedule in a section thereof that corresponds to the section of this Agreement to which it relates. Information disclosed in any Disclosure Schedule shall constitute a disclosure for purposes of all other Disclosure Schedules notwithstanding the lack of specific cross-reference thereto, but only to the extent the applicability of such disclosure to such other Disclosure Schedule is reasonably apparent on its face. The Parties acknowledge and agree that (a) the Disclosure Schedule may include certain items and information solely for informational purposes for the convenience of Buyer and (b) the disclosure by Seller of any matter in the Disclosure Schedule shall not be deemed to constitute an acknowledgment by Seller that the matter is required to be disclosed by the terms of this Agreement or that the matter is material.

14.12 Specific Performance. The Parties agree that if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, irreparable damage would occur, money damages would not be a sufficient remedy and that the Parties shall be entitled to specific performance of the terms of this Agreement and immediate injunctive relief, without the necessity of proving the inadequacy of money damages as a remedy, in addition to any other remedy at law or in equity. Notwithstanding the foregoing, it is explicitly agreed that the right of the Seller to specific performance or other equitable remedies in connection with enforcing Buyer’s obligation to consummate the Closing (but not the right of the Seller to specific performance or other equitable remedies for obligations other than with respect to the consummation of the Closing, which other obligations, for the avoidance of doubt, include Buyer’s obligations under Section 6.15(a)) shall be subject to the requirements that (i) all of the conditions set forth in Article VII have been and remain satisfied or waived by the applicable Parties (other than those that by their nature are intended to be satisfied at the Closing, but subject to the satisfaction or waiver thereof), (ii) the Seller Parties have irrevocably confirmed in writing that (A) all of the conditions set forth in Article VIII have been and remain satisfied or waived by the Seller Parties (other than those that by their nature are intended to be satisfied at the Closing, but subject to the satisfaction or waiver thereof) and (B) the Seller Parties are prepared to consummate the Transactions and will take all actions that are within their respective control to cause the Closing to occur and (iii) the Debt Financing has been funded in accordance with the terms thereof or will be funded to cause the Closing. For clarity, no Party is obligated to close if the conditions to Closing for such Party’s benefit have not been satisfied or waived. Notwithstanding anything to the contrary, while the Seller may simultaneously seek specific performance as and only to the extent expressly permitted by this Section 14.12 and, alternatively, payment of the Reverse Termination Fee (subject to the waiver and dismissal with prejudice of any Claim for specific performance), in no event shall any Seller Parties (or, for the avoidance of doubt, any other members of the Seller Group) be permitted or entitled to receive both a grant of specific performance to require the consummation of the Transactions and payment of the Reverse Termination Fee (it being understood and agreed for the avoidance of doubt that the Reverse Termination Fee shall only be payable in the event of an actual and valid

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termination of this Agreement pursuant to Section 10.01(a)(iv) or (xii) and such specific performance shall only be available prior to a valid termination of this Agreement).

14.13 Governing Applicable Law. THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH FEDERAL BANKRUPTCY LAW, TO THE EXTENT APPLICABLE AND WHERE STATE LAW IS IMPLICATED, THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.

14.14 Jurisdiction, Waiver of Jury Trial.

(a) THE BANKRUPTCY COURT WILL HAVE JURISDICTION OVER THE PARTIES HERETO AND ANY AND ALL DISPUTES BETWEEN OR AMONG THE PARTIES, WHETHER IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY AGREEMENT CONTEMPLATED HEREBY; PROVIDED, HOWEVER, THAT IF THE BANKRUPTCY COURT IS UNWILLING OR UNABLE TO HEAR ANY SUCH DISPUTE, THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE SOUTHERN DISTRICT OF NEW YORK WILL HAVE SOLE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN OR AMONG THE PARTIES, WHETHER IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY AGREEMENT CONTEMPLATED HEREBY.

(b) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

14.15 Intentionally Omitted.

14.16 Intentionally Omitted.

14.17 Debt Financing Party Arrangements.

(a) Notwithstanding anything to the contrary contained in this Agreement, (i) Seller and the Seller Parent and each of their respective Subsidiaries, Affiliates, directors, officers, employees, agents, partners, managers, members or stockholders shall not have any rights or claims against any Debt Financing Party relating to this Agreement or any of the Transactions and (ii) no Debt Financing Party shall have any liability (whether in contract, in tort or otherwise) to Seller, the Seller Parent or their respective Subsidiaries, Affiliates, directors, officers, employees, agents, partners, managers, members or stockholders for any obligations or liabilities relating to this Agreement or the Transactions; provided that, notwithstanding the foregoing, nothing in this Section 14.17(a) shall in any way limit or modify the rights and obligations of Buyer under this Agreement or any of the obligations of the Debt Financing Parties to Buyer or its Affiliates to arrange or otherwise provide the financing to fund Buyer’s obligations under the Transactions or otherwise. Notwithstanding anything to the contrary contained in this Agreement, the Debt Financing Parties are intended third-party beneficiaries of,

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(b) Notwithstanding anything to the contrary contained in this Agreement, (i) Seller, the Seller Parent, Buyer, the Companies and each of their respective Subsidiaries, Affiliates, directors, officers, employees, agents, partners, managers, members or stockholders (collectively, the “PSA Related Parties”) shall not have any rights or claims against any LC Lender, in its capacity as such, relating to this Agreement or any of the Transactions and (ii) no LC Lender, in its capacity as such, shall have any liability (whether in contract, in tort or otherwise) to any PSA Related Party for any obligations or liabilities relating to this Agreement or the Transactions; provided that, notwithstanding the foregoing, nothing in this Section 14.17(b) shall in any way limit or modify (i) the rights and obligations of Buyer under this Agreement, (ii) the respective rights and obligations of Buyer and the Companies or their respective Affiliates or Subsidiaries under Section 6.13 or any document or agreement executed and/or delivered in connection therewith, (iii) any rights or claims that any Seller Party may have under the DIP Facility or any other DIP Loan Document (as defined in the DIP Facility) or any liabilities of any LC Lender thereunder, or (iv) any rights or claims that any Lender or Agent, and each of their respective Subsidiaries, Affiliates, directors, officers, employees, agents, partners, managers, members or stockholders, may have under the DIP Facility or any other DIP Loan Document (as defined in the DIP Facility) or any liabilities of any Seller Party thereunder. Notwithstanding anything to the contrary contained in this Agreement, the LC Lenders are intended third-party beneficiaries of, and shall be entitled to the protections of, Sections 6.13(a) through (d) and this Section 14.17(b). None of Sections 6.13(a) through (c), Section 8.01(g) or this Section 14.17(b) may be amended, modified or supplemented, or any of its provisions waived, without the prior written consent of the DIP Administrative Agent.

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FIRST WIND CALIFORNIA HOLDINGS, LLC

By: Name: Karleen Stern Title: Secretary

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EXHIBIT A

PROJECT LC OBLIGATIONS

The following terms and provisions of the DIP Facility (as in effect on the date hereof, and only as of the date hereof) shall apply, mutatis mutandis, to the Project LCs:

Drawings and Reimbursements: Reimbursement of drawings under the Project LCs (together with interest) shall be payable on demand in accordance with Section 2.03(c)(iii) of the DIP Facility as pertains to L/C Borrowings.

Interest: L/C Borrowings in respect of the Project LCs shall bear interest as set forth in Section 2.08 of the DIP Facility and the definitions of Applicable Rate, Base Rate and Eurocurrency Rate set forth in the DIP Facility.

Letter of Credit Fees: Payable in accordance with Section 2.03(h) of the DIP Facility and the definition of Applicable Rate set forth in the DIP Facility.

Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers: Payable in accordance with Section 2.03(i) of the DIP Facility.

Expense Reimbursement and Indemnification: In accordance with Article III and Section 10.04 of the DIP Facility.

Capitalized terms used but not otherwise defined in this Exhibit A shall have the meanings ascribed to them in the DIP Facility (as in effect on the date hereof, and only as of the date hereof).

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EXHIBIT B

PRIVATE SALE APPROVAL ORDER

[See attached]

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

: In re: : Chapter 11 : SUNEDISON, INC., et al., : Case No. 16-10992 (SMB) : Debtors.1 : Jointly Administered :

ORDER AUTHORIZING AND APPROVING SALE OF EQUITY INTERESTS IN IMPERIAL VALLEY SOLAR 2, LLC AND 88FT 8ME LLC

Upon the motion (the “Motion”)2 of the Debtors for entry of an order (this

“Order”) pursuant to sections 105(a), 363(b), 363(f), 363(m), 541(a), 1107, and 1108 of title 11 of the United States Code (as amended, the “Bankruptcy Code”), and Rules 2002, 6004, and

9006 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) authorizing First

Wind California Holdings, LLC (the “Seller”) to sell or transfer its equity interests (such equity interests, collectively, the “Equity Interests”) in (a) Imperial Valley Solar 2, LLC (“IVS2”), and

(b) 88FT 8ME, LLC (“88FT” and, together with IVS2, the “Subsidiaries” and, each of the foregoing individually, a “Subsidiary”) to DESRI MS2 Development, L.L.C. (the “Buyer”) in

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtors’ tax identification number are as follows: SunEdison, Inc. (5767); SunEdison DG, LLC (N/A); SUNE Wind Holdings, Inc. (2144); SUNE Hawaii Solar Holdings, LLC (0994); First Wind Solar Portfolio, LLC (5014); First Wind California Holdings, LLC (7697); SunEdison Holdings Corporation (8669); SunEdison Utility Holdings, Inc. (6443); SunEdison International, Inc. (4551); SUNE ML 1, LLC (3132); MEMC Pasadena, Inc. (5238); Solaicx (1969); SunEdison Contracting, LLC (3819); NVT, LLC (5370); NVT Licenses, LLC (5445); Team-Solar, Inc. (7782); SunEdison Canada, LLC (6287); Enflex Corporation (5515); Fotowatio Renewable Ventures, Inc. (1788); Silver Ridge Power Holdings, LLC (5886); SunEdison International, LLC (1567); Sun Edison LLC (1450); SunEdison Products Singapore Pte. Ltd. (7373); SunEdison Residential Services, LLC (5787); PVT Solar, Inc. (3308); SEV Merger Sub Inc. (N/A); Sunflower Renewable Holdings 1, LLC (6273); Blue Sky West Capital, LLC (7962); First Wind Oakfield Portfolio, LLC (3711); First Wind Panhandle Holdings III, LLC (4238); DSP Renewables, LLC (5513); Hancock Renewables Holdings, LLC (N/A). The address of the Debtors’ corporate headquarters is 13736 Riverport Dr., Maryland Heights, Missouri 63043.

2 Capitalized terms not otherwise defined herein have the meanings ascribed to them in the Motion or the PSA, as applicable. 1

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accordance with that certain Purchase and Sale Agreement, dated as of July 1, 2016 (together with all related agreements, documents or instruments and all exhibits, schedules, and

supplements to any of the foregoing, the “PSA”, and the transactions described therein, the “Sale

Transaction”), by and among the Seller, SunEdison, Inc. (“SUNE” and, together, with the Seller,

the “Seller Parties”) and the Buyer, free and clear of all Liens and Claims (as defined herein),

with such Liens attaching to the proceeds with the same validity, extent, and priority as had

attached to the Equity Interests immediately prior to the sale or transfer; and the Court having

held a hearing on [______], 2016 (the “Sale Hearing”) to approve the proposed Sale Transaction

as set forth in the PSA; and the Court having reviewed and considered (a) the Motion, (b) the

First Day Declaration, (c) the Martin Declaration, (d) the Parkhill Declaration, (e) the objections

to the Motion, if any, and (f) the arguments of counsel made, and the evidence proffered or

adduced at the Sale Hearing; and due and sufficient notice of the Motion having been given

under the particular circumstances; and it appearing that no other or further notice need be

provided; and it appearing that the relief requested in the Motion is in the best interests of the

Debtors, their estates, their creditors, their stakeholders, and other parties in interest; and after

due deliberation thereon; and sufficient cause appearing therefor; it is hereby

FOUND AND DETERMINED THAT:3

A. Jurisdiction and Venue. This Court has jurisdiction (i) to consider the

Motion and (ii) over the property of Debtors, including the Equity Interests to be sold,

transferred, and conveyed pursuant to the PSA, under 28 U.S.C. §§ 157 and 1334. This is a core

3 These findings and determinations constitute the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. Where appropriate, findings of fact shall be construed as conclusions of law and conclusions of law shall be construed as findings of fact. 2

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proceeding under 28 U.S.C. § 157(b). Venue of these cases and this Motion in this district is

proper under 28 U.S.C. §§ 1408 and 1409.

B. Legal Predicates. The legal predicates for the relief sought in the Motion

are Bankruptcy Code sections 105(a), 363(b), 363(f), 363(m), 541(a), 1107, and 1108, and

Bankruptcy Rules 2002, 6004, 9006, and 9019.

C. Final Order. This Order constitutes a final order within the meaning of

28 U.S.C. § 158(a). Notwithstanding Bankruptcy Rules 6004(h) and 7062, and to the extent

necessary under Bankruptcy Rule 9014 and Rule 54(b) of the Federal Rules of Civil Procedure,

as made applicable by Bankruptcy Rule 7054, this Court expressly finds that there is no just

reason for delay in the implementation of this Order and expressly directs entry of this Order as

set forth herein.

D. Notice. As evidenced by the affidavits of service filed with the Court at

Docket No. [___], and based on the representations of counsel at the Sale Hearing, (i) proper, timely, adequate, and sufficient notice of the Motion, the Sale Hearing, the PSA, and the Sale

Transaction has been provided in accordance with Bankruptcy Code sections 102(1) and 363 and

Bankruptcy Rules 2002, 6004, 9006, and 9019 and the case management procedures established in that certain Order Granting Debtors’ Amended Motion for Order Pursuant to Bankruptcy

Code Sections 102 and 105, Bankruptcy Rules 1015, 2002, 9007, and 9036, and Local

Bankruptcy Rule 2002 Authorizing the Establishment of Certain Notice, Case Management, and

Administrative Procedures [Docket No. 360] (the “Case Management Order”), as amended and

waived by the Court in accordance with the [Order to Show Cause Scheduling Hearing on

Shortened Notice for Debtors’ Motion for (I) An Order Authorizing and Approving a Private

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Sale of Equity Interests In Imperial Valley Solar 2, LLC and 88FT 8ME LLC; Or, (II) In the

Alternative, For (1) An Order (A) Authorizing Certain Debtors’ Entry Into The Stalking Horse

Agreement, (B) Approving Bidding Procedures and Stalking Horse Bid Protections In

Connection With Sale of Assets of the Debtors, (C) Scheduling Auction and Sale Hearing, and

(D) Granting Related Relief; And (2) Thereafter, An Order (A) Approving the Sale of Equity

Interests In Imperial Valley Solar 2, LLC and 88FT 8ME LLC Free and Clear of All Liens,

Claims, and Encumbrances And (B) Granting Related Relief] [Docket No. ___] to each party entitled to such notice, (ii) such notice was good, sufficient, and appropriate under the particular circumstances, and (iii) no other or further notice of the Motion, the Sale Hearing, the PSA, or the Sale Transaction is or shall be required.

E. Corporate Authority. Each of the Seller Parties (subject only to entry of this Order) and the Buyer (i) has full corporate power and authority to execute the PSA and all other documents contemplated thereby, and the sale of the Equity Interests has been duly and validly authorized by all necessary corporate action, (ii) has all of the corporate power and authority necessary to consummate the transactions contemplated by the PSA, and (iii) has taken all corporate action and formalities necessary to authorize and approve the PSA and the consummation by the Seller Parties of the transactions contemplated thereby, including, without limitation, as required by their respective organizational documents. No government, regulatory, or other consents or approvals are required for the Seller Parties to enter into the PSA and consummate the Sale Transaction.

F. Opportunity to Object. A fair and reasonable opportunity to object or be heard with respect to the Motion and the relief requested therein has been afforded to all

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interested persons and entities, including: (a) all entities known to have expressed an interest in a

transaction with respect to all or part of the Equity Interests; (b) counsel to the Buyer; (c) counsel

to the administrative agent under the Debtors’ prepetition first lien credit agreement; (d) counsel

to the Tranche B Lenders (as defined in the debtor-in-possession credit agreement) and the steering committee of the second lien creditors; (e) counsel to the administrative agent under the

Debtors’ prepetition second lien credit agreement; (f) counsel to the collateral trustee under the

Debtors’ prepetition second lien credit agreement; (g) counsel to the indenture trustee under each of the Debtors’ outstanding bond issuances; (h) the Office of the United States Trustee for the

Southern District of New York; (i) the U.S. Attorney for the Southern District of New York; (j) counsel to the DIP Administrative Agent (as defined in the PSA); (k) counsel to the official committee of unsecured creditors; (l) the Internal Revenue Service; (m) the Securities and

Exchange Commission; (n) all entities known to have asserted any Lien or Claim in or upon any of the Equity Interests; (o) any such other party entitled to notice pursuant to Bankruptcy Rule

2002, Rule 9013-1(b) of the Local Bankruptcy Rules for the United States Bankruptcy Court for the Southern District of New York, or the Case Management Order.

G. Sale in Best Interests. The consideration provided by the Buyer under the PSA constitutes the highest or otherwise best offer for the Equity Interests and provides fair consideration and reasonably equivalent value to the Seller Parties in exchange for the Equity

Interests and the assumption of the Assumed Liabilities. The transactions contemplated by the

PSA represent the best opportunity to maximize and realize the value of the Equity Interests for the Debtors’ estates. Consummation of the Sale Transaction at this time is in the best interests of the Debtors, their creditors, their estates, their stakeholders, and other parties in interest.

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H. Business Justification. Sound business reasons exist for the Sale

Transaction. Entry into the PSA, and the consummation of the transactions contemplated

thereby, constitutes each Seller Party’s exercise of sound business judgment and such acts are in

the best interests of the Debtors, their estates, their stakeholders, and all parties in interest. The

terms and conditions of the PSA, including, without limitation, the consideration to be realized

by the Seller Parties, are fair and reasonable. The Court finds that the Debtors have articulated good and sufficient business reasons justifying the Sale Transaction, including, without limitation, the fact that (i) SUNE conducted an extensive marketing and auction process for the

Subsidiaries, and for the Mt Signal 3 Project (as defined in the PSA, and together with the

Project, the “Projects”) in the third and fourth quarters of 2015, pursuant to which, the

Subsidiaries and Mt Signal 3 Project were marketed and bid on as a single, indivisible asset, and

SUNE selected an affiliate of the Buyer as the highest or otherwise best bidder for the

Subsidiaries and Mt Signal 3 Project at the conclusion of the auction process, (ii) the Projects face substantial risk of irreparable harm if the Sale Transaction is not closed promptly because, among other things, certain land rights, interconnection agreements, co-tenancy rights, and conditional use permits are set to expire imminently in the absence of renewal or extension, as applicable, by the Buyer, (iii) the Seller Parties have continued to market the Subsidiaries and the

Mt Signal 3 Project throughout 2016, including the marketing process conducted by the Debtors and their advisors following the Petition Date, and (iv) the Seller Parties are unlikely to find a higher or otherwise better offer for the Equity Interests because the Buyer is uniquely qualified,

based on its familiarity and experience with the Project, to address certain significant

development challenges affecting the Project, including: (a) the need for the Projects to obtain

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increased transmission capacity and interconnection rights and to acquire the rights to use certain shared facilities, necessitating agreement by various cotenants, including entities unaffiliated with the Seller Parties, and (b) the ambiguity of the terms (including with respect to quantity and timing) of certain co-tenancy obligations owed to Imperial Valley Solar Holdings, LLC in connection with the Projects. For these reasons and based on the other evidence of record, the

Court finds that (i) the PSA constitutes the highest or otherwise best offer for the Equity Interests under the circumstances, (ii) the PSA and the closing of the Sale Transaction present the best opportunity to realize value for the Equity Interests, and (iii) any other transaction would create a substantial risk of delay and a significant reduction in value.

I. Condition to Sale Transaction. Entry of this Order approving the PSA and all the provisions thereof is a condition precedent to the Buyer’s obligation to consummate

the Sale Transaction.

J. Arm’s-Length Sale. The PSA and the Sale Transaction contemplated

thereunder were proposed, negotiated, and entered into by the Seller Parties and the Buyer

without collusion, in good faith, and from arm’s-length bargaining positions. Neither the Seller

Parties nor the Buyer has engaged in any conduct that would cause or permit the PSA or the Sale

Transaction to be avoided or result in the imposition any costs or damages under 11 U.S.C. §

363(n). Neither the Buyer nor any of its affiliates, present or contemplated members, officers,

directors, or shareholders or any of their respective successors and assigns (in each case,

identified as of the date hereof) is an “insider” of the Debtors as defined in Bankruptcy Code

section 101(31).

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K. Good Faith Purchaser. The Buyer (i) is a good faith purchaser for value

and, as such, is entitled to all of the protections afforded under 11 U.S.C. § 363(m) and any other

applicable or similar bankruptcy and non-bankruptcy law, and (ii) has otherwise proceeded in good faith in all respects in connection with this proceeding. Specifically: (a) all payments to be

made by the Buyer in connection with the Sale Transaction have been disclosed; (b) the

negotiation and execution of the PSA was at arm’s-length and in good faith, and at all times each

of the Buyer and the Seller Parties were represented by competent counsel of their choosing; (c)

the Buyer did not in any way induce or cause the filing of the Chapter 11 Cases; and (d) the

Buyer has not acted in a collusive manner with any person. The Buyer will be acting in good faith within the meaning of 11 U.S.C. § 363(m) in closing the transactions contemplated by the

PSA.

L. Free and Clear. The Seller Parties may sell the Equity Interests free and clear of all Liens and Claims because, with respect to each creditor that could assert such a Lien or Claim, one or more of the standards set forth in Bankruptcy Code section 363(f)(1)-(5) has been satisfied. The transfer of the Equity Interests to the Buyer will be free and clear of all Liens and Claims and will not subject the Buyer or any of the Buyer’s assets to any liability for any

Liens or Claims whatsoever (including, without limitation, under any theory of equitable law, antitrust, setoff (except with respect to setoffs that were effected prior to the Petition Date), or

Successor or Transferee Liability (as defined below)). All holders of Liens or Claims who did not object, or withdrew their objections, are deemed to have consented to the Sale Transaction pursuant to Bankruptcy Code section 363(f)(2). The Buyer would not have entered into the PSA and would not consummate the Sale Transaction, thus adversely affecting the Debtors, their

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estates, creditors, and other parties in interest, if, except to the extent set forth in this Order and

the PSA, the transfer of the Equity Interests were not free and clear of all Liens and Claims or if

the Buyer would, or in the future could, be liable for any Liens or Claims, including, without

limitation and as applicable, certain liabilities that expressly are not assumed by the Buyer as set

forth in the PSA or in this Order. Not transferring the Equity Interests free and clear of the Liens

and Claims would adversely impact the Debtors’ efforts to maximize the value of their estates.

M. Prompt Consummation. The sale of the Equity Interests must be

approved and consummated promptly in order to preserve the value of the Equity Interests. The

Debtors have demonstrated both (i) good, sufficient, and sound business purposes and

justifications and (ii) compelling circumstances for the Sale Transaction pursuant to Bankruptcy

Code section 363(b) prior to, and outside of, a plan of reorganization in that, among other things,

absent the immediate consummation of the Sale Transaction, the value of the Equity Interests

will be harmed. To maximize the value of the Equity Interests, it is essential that the Sale

Transaction occur within the timeframe set forth in the PSA. Therefore, time is of the essence in

consummating the Sale Transaction, and the Seller Parties and the Buyer intend to close the Sale

Transaction as soon as reasonably practicable.

N. No Fraudulent Transfer. The PSA was not entered into, and neither the

Seller Parties nor the Buyer proposes to consummate the Sale Transaction, for the purpose of hindering, delaying, or defrauding the Debtors’ present or future creditors under the Bankruptcy

Code or under the laws of the United States, any state, territory, possession thereof, or the

District of Columbia or any other applicable jurisdiction with laws substantially similar to the foregoing.

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O. Consideration. As demonstrated by the Martin Declaration, the other evidence proffered or adduced at the Sale Hearing, and the arguments of counsel made on the record at the Sale Hearing, the consideration provided by the Buyer for the Equity Interests

pursuant to the PSA (i) is fair, full, adequate, and reasonable, (ii) is the highest or otherwise best

offer for the Equity Interests, (iii) will provide a greater recovery for the Debtors’ creditors than

would be provided by any other practical available alternative, and (iv) constitutes reasonably

equivalent value, reasonable market value, and fair consideration under the Bankruptcy Code and

under the laws of the United States, any state, territory, possession, or the District of Columbia

(including, without limitation, the Uniform Fraudulent Conveyance Act and the Uniform

Fraudulent Transfer Act).

P. No Successor Liability. Except as otherwise set forth in the PSA, the

transfer of the Equity Interests pursuant to the PSA does not, and will not, subject the Buyer to

any liability or obligation whatsoever, with respect to the operation of any of the Debtors’

businesses or by reason of such transfer under the laws of the United States, any state, territory,

or possession thereof, or the District of Columbia, based, in whole or in part, directly or indirectly, in any theory of law or equity including, without limitation, any laws affecting antitrust, successor, transferee or vicarious liability. The Buyer (i) does not have a common identity of incorporators, officers, directors, or equity holders with any of the Debtors and (ii) is

not holding itself out to the public as a continuation of any of the Debtors or their estates. The

Sale Transaction does not amount to a consolidation, merger, or de facto merger of the Buyer and any of the Debtors and/or the Debtors’ estates and the purpose and intent of the Sale

Transaction is not to avoid the Seller Parties’ liabilities or assist the Seller Parties in avoiding

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their liabilities. Except with respect to the businesses conducted by the Subsidiaries, there is not substantial continuity between the Buyer and any of the Debtors, there is no continuity of enterprise between any of the Debtors and the Buyer, the Buyer is not a mere continuation or substantial continuation of any of the Debtors or the Debtors’ estates, and the Buyer does not constitute a successor to any of the Debtors or the Debtors’ estates. For the avoidance of doubt, nothing in this paragraph is intended to release or otherwise affect (x) any Liens or Claims of any kind or nature against the Subsidiaries, or to affect any person or entity’s rights with respect to such Liens or Claims against the Subsidiaries, or (y) any LC Lender Liens and Claims (as defined below).

Q. Legal, Valid Transfer. The transfer of the Equity Interests pursuant to the PSA will be a legal, valid, and effective transfer of all of the legal, equitable, and beneficial right, title and interest in and to the Equity Interests and will vest the Buyer with good title to the

Equity Interests free and clear of all Liens and Claims. The Seller Parties may sell the Equity

Interests free and clear of all Liens and Claims as set forth in this Order because, in each case, one or more of the standards set forth in Bankruptcy Code section 363(f) has been satisfied. The transfer of the Equity Interests to the Buyer will vest the Buyer with good and marketable title to the Equity Interests free and clear of all Liens and Claims. The Equity Interests constitute property of the Debtors’ estates within the meaning of Bankruptcy Code section 541(a), and good title is vested in the Debtors’ estates. First Wind California Holdings, LLC is the sole and rightful owner of the Equity Interests, and no other person has any ownership right, title, or interests therein.

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R. Not a Sub Rosa Plan. The sale and assignment of the Equity Interests

outside of a plan of reorganization pursuant to the PSA neither impermissibly restructures the

rights of the Debtors’ creditors nor impermissibly dictates the terms of a liquidating plan for the

Debtors. Neither the PSA nor the Sale Transaction contemplated thereby constitute a sub rosa

chapter 11 plan for which approval has been sought without the protections that a disclosure

statement would afford.

S. Legal and Factual Bases. The legal and factual bases set forth in the

Motion and at the Sale Hearing establish just cause for the relief granted herein.

IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED THAT:

General Provisions

1. The Motion is GRANTED to the extent set forth herein.

2. All objections to the Motion or the relief requested therein that have not been withdrawn, waived, or settled, and all reservations of rights included therein, are overruled on the merits and denied with prejudice. All persons and entities given notice of the Motion that failed to timely object thereto are deemed to consent to the relief sought therein.

Approval of the Sale of the Equity Interests

3. The PSA, including any amendments, supplements, and modifications

thereto, and all of the terms and conditions therein, including, without limitation, those terms and

conditions regarding the creation of the Escrow Account and the post-Closing payment of the

Adjustment Amount, is hereby approved.

4. The Sale Transaction is hereby approved and authorized in all respects,

and the Seller Parties are hereby authorized and empowered to enter into, and to perform their

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obligations under, the PSA and to (a) execute and perform under such other agreements or

documents, and (b) take such other actions as are necessary or desirable, to effectuate the terms

of the PSA. Notwithstanding the foregoing, neither the Seller Parties nor the Buyer shall have

any obligation to proceed with a closing under the PSA until all conditions precedent to its

obligations to do so have been met, satisfied, or waived.

Sale and Transfer of Equity Interests

5. Pursuant to 11 U.S.C. § 363(b), the Seller Parties are hereby authorized

and empowered to sell the Equity Interests and consummate the Sale Transaction in accordance

with, and subject to the terms and conditions of, the PSA, and are further authorized and

empowered to execute, deliver, perform under, consummate, and implement the PSA, together with all additional instruments and documents that may be reasonably necessary or desirable to implement the PSA, including, without limitation, the related documents, exhibits and schedules, and to take all further actions as may be reasonably requested by the Buyer for the purposes of

assigning, transferring, granting, conveying, and conferring to the Buyer or reducing to

possession, the Equity Interests, or as may be necessary or appropriate to the performance of the

Seller Parties’ obligations as contemplated by the PSA.

6. Except as otherwise expressly provided in the PSA and the terms of this

Order, pursuant to 11 U.S.C. §§ 363(b) and 363(f), the Equity Interests shall be transferred on

the Closing Date (as defined in the PSA) free and clear of all (i) claims (including, without

limitation, the DIP Superpriority Claims, the Second Lien Adequate Protection Claims, the

Carved-Out Yieldco Administrative Claims, and any other claim arising under or set forth in any

DIP Loan Document (each of the foregoing, as defined in the Final DIP Order (as defined

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DC\4338269.15 16-10992-smb Doc 695-3 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit C Pg 92 of 185 below))), Liabilities (as defined in the PSA), interests in, rights against, and encumbrances on, or otherwise in respect of, the Equity Interests as of the Closing Date, including, without limitation, all restrictions (including, without limitation, any restriction on the use, voting rights, transfer rights, claims for receipt of income, or other exercise of any attributes of ownership), hypothecations, charges, indentures, instruments, options, security interests, conditional sale rights or other title retention agreements, pledges, judgments, demands, rights of first refusal, consent rights, contract rights, rights of recovery, reimbursement rights, contribution claims, indemnity rights, exoneration rights, alter-ego claims, tax claims, regulatory violations by any governmental entity, decrees of any court or foreign or domestic governmental entity, charges of any kind or nature, debts arising in any way in connection with any agreements, acts, or failures to act, obligation claims, demands, guaranties, contractual or other commitment rights and claims, and all other matters of any kind and nature, whether known or unknown, choate or inchoate, filed or unfiled, scheduled or unscheduled, noticed or unnoticed, recorded or unrecorded, perfected or unperfected, allowed or disallowed, contingent or non-contingent, liquidated or unliquidated, matured or unmatured, material or non-material, disputed or undisputed, whether arising prior to or subsequent to the commencement of the Debtors’ Chapter

11 Cases (but, for the avoidance of doubt, in each case directly related to the Equity Interests prior to the Closing Date), and whether imposed by agreement, understanding, law, equity or otherwise, including claims otherwise arising under any theory, law or doctrine of successor liability or related theories, as well as any and all “claims” as that term is defined and used in the

Bankruptcy Code, including section 101(5) thereof (all of the foregoing, collectively, “Claims”), and (ii) Liens (as defined in the PSA), including, without limitation, the DIP Liens, the Adequate

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Protection Liens, and any other liens arising under or set forth in any DIP Loan Document (each of the foregoing, as defined in the DIP Order), on or against the Equity Interests, arising prior to the Closing Date (the “Liens”), with such Liens to attach to the proceeds of the Sale Transaction in the order of their priority, with the same validity, force and effect which they now have as against the Equity Interests. Notwithstanding anything to the contrary in the foregoing sentence or otherwise in this Order, neither “Liens” nor “Claims” shall include (x) any Assumed

Liabilities (as defined in the PSA), or (y)(i) any claims, security interests, or liens granted to or for the benefit of the LC Lenders (or authorized to continue in effect) pursuant to section 6.13 of the PSA or under any document or agreement executed and/or delivered in connection therewith

(the “LC Definitive Documentation”) or (ii) any claims against the Buyer, the Subsidiaries, or otherwise arising from any obligations or rights granted to or for the benefit of the LC Lenders under section 6.13 the PSA or any LC Definitive Documentation (such liens, claims, and security interests specified in sub-clauses (i) and (ii), collectively, the “LC Lender Liens and Claims”), which LC Lender Liens and Claims shall have the priority, and shall continue in force and effect as and to the extent set forth in the PSA and as reflected in any LC Definitive Documentation and the transfer of the Equity Interests on the Closing Date or otherwise pursuant to this Order shall be subject to the LC Lender Liens and Claims as and to the extent set forth in the PSA and as reflected in such LC Definitive Documentation; provided that, for the avoidance of doubt, nothing in the foregoing clause (y) is intended to impair the rights of the LC Lenders under

Section 14.17 of the PSA.

7. Following the Closing, the Seller Parties and the Buyer are authorized to file, register or record a certified copy of this Order, which, once filed, registered or otherwise

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recorded, shall constitute conclusive evidence of the release of all Liens and Claims of any kind

or nature whatsoever with respect to the Equity Interests, all filing agents, filing officers,

administrative agencies, governmental departments, secretaries of state, federal and local

officials, and all other persons and entities who may be required by operation of law, the duties

of their office, or contract, to accept, file, register, or otherwise record or release any documents or instruments are hereby directed to accept such copy of this Order or any other documents and instruments necessary and appropriate to consummate the transactions contemplated by the PSA for such filing, registration or recording. On the Closing Date, this Order will be construed, and constitute for any and all purposes, a full and complete general assignment, conveyance, and transfer of the Equity Interests transferring good and marketable title in and to such Equity

Interests to the Buyer in accordance with the PSA.

8. At Closing, all of the Seller Parties’ right, title and interest in and to, and possession of, the Equity Interests shall be immediately vested in the Buyer pursuant to

Bankruptcy Code sections 105(a), 363(b), and 363(f) free and clear of any and all Liens and

Claims. Such transfer shall constitute a legal, valid, binding, and effective transfer of the Equity

Interests. All persons or entities in possession of some or all of the Equity Interests are directed to surrender possession of the Equity Interests directly to the Buyer or its designees at the

Closing or at such time thereafter as the Buyer may request.

9. To the extent allowed by the financing or other contractual arrangements to which the Buyer is a party, the Buyer is hereby authorized in connection with the consummation of the Sale Transaction to assign, transfer, allocate, or otherwise dispose of any of the Equity Interests to and among its affiliates, designees, assignees, and/or successors (i) in a

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manner as it, in its sole discretion, deems appropriate and (ii) with all of the rights and

protections accorded under this Order and the PSA, and the Debtors shall cooperate with and take all actions reasonably requested by the Buyer to effectuate any of the foregoing.

10. This Order: (a) shall be effective as a determination that, as of the Closing,

(i) no Liens or Claims will be capable of being asserted against the Buyer or any of its direct

assets (including the Equity Interests), (ii) the Equity Interests shall have been transferred to the

Buyer free and clear of all Liens and Claims, and (iii) the conveyances described herein have

been effected; and (b) is and shall be binding upon and govern the acts of all persons and entities, including, without limitation, all filing agents, filing officers, administrative agencies, governmental departments, secretaries of state, federal and local officials, and all other persons and entities who may be required by operation of law, the duties of their office, or contract, to accept, file, register, or otherwise record or release any documents or instruments.

11. All persons and entities (and their respective successors and assigns), including, without limitation, all debt security holders, equity security holders, affiliates, governmental, tax, and regulatory authorities, lenders, customers, vendors, employees, trade creditors, litigation claimants, and other creditors holding Liens or Claims of any kind or nature whatsoever arising under or out of, in connection with, or in any way relating to, the Equity

Interests are hereby forever barred, estopped, and permanently enjoined from asserting such

Liens or Claims against the Buyer, its successors or assigns, or the Equity Interests. Following the Closing, no holder of any Lien or Claim shall interfere with the Buyer’s title to the Equity

Interests based on or related to any such Lien or Claim, or based on any action the Debtors may take in their Chapter 11 Cases. For the avoidance of doubt, and notwithstanding anything to the

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contrary herein, nothing in this paragraph is intended (x) to release or otherwise affect any Liens

or Claims of any kind or nature against the Subsidiaries, or to affect any person or entity’s rights

with respect to such Liens or Claims against the Subsidiaries, or (y) to release or otherwise affect

any LC Lender Liens and Claims, including against the Subsidiaries or the Buyer (or otherwise)

or to affect any person or entity’s rights with respect to such LC Lender Liens and Claims,

against the Subsidiaries or the Buyer (or otherwise).

12. Each person or entity that has filed financing statements or other documents or agreements evidencing Liens or Claims on or against the Equity Interests shall use commercially reasonable efforts to deliver to the Debtors and the Buyer prior to the Closing of the Sale Transaction in proper form for filing, and executed by the appropriate parties, termination statements, instruments of satisfaction, and releases of all such Liens and Claims on or against the Equity Interests. If any person or entity that has filed financing statements or other documents or agreements evidencing Liens or Claims on or against the Equity Interests shall not have delivered to the Debtors prior to the Closing of the Sale Transaction, in proper form for filing, and executed by the appropriate parties, termination statements, instruments of satisfaction, and releases of all such Liens and Claims, then only with regard to the Equity

Interests that are purchased by the Buyer pursuant to the PSA and this Order: (a) the Debtors and the Buyer are hereby authorized to execute and file such statements, instruments, releases, and other documents on behalf of the person or entity with respect to the Equity Interests; (b) the

Buyer is hereby authorized to file, register or otherwise record a certified copy of this Order, which, once filed, registered, or otherwise recorded, shall constitute conclusive evidence of the release of all Liens and Claims on or against the Buyer and the Equity Interests; and (c) the

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Buyer may seek in this Court or any other court to compel appropriate parties to execute

termination statements, instruments of satisfaction, and releases of all Liens and Claims (but not,

for the avoidance of doubt, any Assumed Liabilities or LC Lender Liens and Claims). This

Order is deemed to be in recordable form sufficient to be placed in the filing or recording system

of each and every federal, state, or local government agency, department, or office.

Notwithstanding the foregoing, the provisions of this Order authorizing the sale and assignment

of the Equity Interests free and clear of Liens and Claims shall be self-executing, and neither the

Debtors nor the Buyer shall be required to execute or file releases, termination statements,

assignments, consents, or other instruments to effectuate, consummate, and implement the

provisions of this Order.

13. All persons and entities are hereby forever prohibited and permanently

enjoined from taking any action to adversely affect or interfere with the ability of the Seller

Parties to transfer the Equity Interests in accordance with the PSA and this Order; provided,

however, that the foregoing restriction shall not prevent any party from appealing this Order in

accordance with applicable law or opposing any appeal of this Order.

14. Any post-closing adjustment payment made by the Seller Parties to the

Buyer in accordance with Section 2.06 of the PSA and any amount paid to the Buyer from the

Escrow Account shall be paid to the Buyer free and clear of all prepetition and postpetition Liens

and Claims, including, without limitation, all prepetition and postpetition Liens and Claims of the Prepetition Secured Parties and the DIP Secured Parties (as each such term is defined in the

Final DIP Order) under, or otherwise described in, the Final Order (I) Authorizing Debtors to

(A) Obtain Senior Secured, Superpriority, Postpetition Financing Pursuant to Bankruptcy Code

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Sections 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1), and 364(e) and (B) Utilize

Cash Collateral Pursuant to Bankruptcy Code Section 363, and (II) Granting Adequate

Protection to Prepetition Secured Parties Pursuant to Bankruptcy Code Sections 361, 362, 363

and 364 [Docket No. 523] (the “Final DIP Order”) and the other DIP Loan Documents, in each

case notwithstanding any provision to the contrary in the Final DIP Order, the other DIP Loan

Documents, or any other order of this Court.

Waiver of D.E. Shaw Claims

15. Conditioned upon and effective solely from and after Closing (as defined

in the PSA), Buyer, on behalf of itself and its successors and assigns, and its present and former

members, managers, shareholders, affiliates, subsidiaries, predecessors, directors, officers,

employees, agents, legal representatives, and other representatives (Buyer and all such other

Persons being referred to in this paragraph 14 collectively as the “Waiving Parties”), hereby

absolutely, unconditionally, and irrevocably waive any and all demands, actions, causes of action, suits, damages, and any and all other claims, counterclaims, defenses, rights of set off, and liabilities whatsoever of every kind and nature, at law or in equity, which any Waiving Party now owns, holds, has, or claims to have, in each case, to seek secured status or priority unsecured status (including under any theories of constructive trust or otherwise) under the

Bankruptcy Code of a Claim solely with respect to the specific cash Purchase Price received under the PSA or the IVS3/IVS4/Sun Lake PSA (as defined in the PSA) by the Seller (as adjusted, if at all, in accordance with Sections 2.05 and 2.06 of the PSA) (each, a “Claim”)

(excluding, for the avoidance of doubt, any timely claim against the Escrow Amount or pursuant

to the proviso in Section 2.06(b) of the PSA, with respect to which it is acknowledged and

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agreed by the Parties (as defined in the PSA) that Buyer shall have a first claim to such proceeds

to the extent set forth in the PSA). From and after Closing, the waiver set forth above may be pleaded as a full and complete defense to any such Claim and may be used as a basis for an injunction against any action, suit, or other proceeding which may be instituted, prosecuted, or attempted in breach of the provisions of such waiver (but only to the extent of the waiver set forth above and in the PSA). From and after Closing, no fact, event, circumstance, evidence, or transaction which could now be asserted or which may hereafter be discovered will affect in any

manner the final, absolute, and unconditional nature of the waiver set forth above and in the

PSA. Notwithstanding the foregoing, nothing herein or in the PSA shall prevent or bar the

Waiving Parties from filing a proof of claim asserting, and receiving any recovery to which they

are legally entitled in respect of, any allowed general unsecured claims the Buyer or its Affiliates

may have against the Seller Parties in the Sellers’ Chapter 11 Cases (in each case, regardless of

the legal priority to which such claim would otherwise be entitled but for the foregoing waiver),

provided, however, that the Seller Parties and their Affiliates reserve any and all rights to object

or otherwise respond to any such filed proof of claim. For the avoidance of doubt, all of each

Waiving Party’s rights with respect to its other claims against the Seller Parties or any of its

present or former members, managers, shareholders, Affiliates, subsidiaries, predecessors,

directors, officers, employees, agents, legal representatives, or other representatives shall be fully

preserved, and each Waiving Party shall have the right to assert all other claims against and

receive any distribution to which it is entitled under law from Seller or such other Person with respect to all such other claims.

No Successor or Transferee Liability

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16. The Buyer is not a “successor” to the Debtors or their estates by reason of

any theory of law or equity, and the Buyer shall not assume, or be deemed to assume, or in any

way be responsible for any liability or obligation of any of the Debtors and/or their estates with

respect to the Equity Interests or otherwise, including, but not limited to, under any bulk sales

law, doctrine or theory of successor liability, or similar theory or basis of liability. The Buyer shall not be deemed to: (a) be a legal successor, or otherwise be deemed a successor to any of the

Debtors or their affiliates or incur any liability derived therefrom within the meaning of any foreign, federal, state or local law; (b) have, de facto or otherwise, merged with or into any of the

Debtors or their affiliates; or (c) be an alter ego or a mere continuation or substantial

continuation of any of the Debtors or their affiliates, in each case including, without limitation, within the meaning of any pension law, the Employee Retirement Income Security Act, the

Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the WARN Act (29 U.S.C. §§

2101 et seq.) (“WARN”), the Fair Labor Standard Act, Title VII of the Civil Rights Act of 1964

(as amended), the Age Discrimination and Employment Act of 1967 (as amended), the Federal

Rehabilitation Act of 1973 (as amended), and the National Labor Relations Act, 29 U.S.C. § 151,

et seq. (the “NLRA”). For the avoidance of doubt, nothing in this paragraph is intended to

release or otherwise affect (x) any Liens or Claims of any kind or nature against the Subsidiaries,

or to affect any person or entity’s rights with respect to such Liens or Claims against the

Subsidiaries, or (y) any LC Lender Liens and Claims.

17. Other than as expressly set forth in the PSA or this Order solely with respect to Assumed Liabilities or any LC Lender Liens and Claims, the Buyer shall not have any responsibility for any liability or other obligation of the Debtors or any of their affiliates, whether

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known or unknown as of the Closing, now existing or hereafter arising, asserted or unasserted,

fixed or contingent, liquidated or unliquidated, including under any law or theory of successor or vicarious liability, antitrust law, environmental law, foreign, federal, state or local revenue law, or products liability law; provided, however, for the avoidance of doubt, that, unless otherwise explicitly provided for in the PSA, Buyer shall not assume any liability or other obligation of the

Subsidiaries, which shall remain liabilities and obligations of the applicable Subsidiary. Without

limiting the generality of the foregoing, the Buyer shall not be liable for any (a) liabilities, debts,

or obligations on account of any taxes arising, accruing or payable under, out of, in connection

with, or in any way relating to the ownership of the Equity Interests prior to the Closing, (b)

environmental liabilities or obligations arising from conditions first existing prior to Closing

(including, without limitation, the presence of hazardous, toxic, polluting, or contaminating

substances or wastes), which may be asserted on any basis, including, without limitation, under

the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), or

(c) liabilities, debts or obligations arising from conditions first existing or actions occurring prior

to the Closing with respect to any labor, employment, or similar law, rule or regulation,

including the laws specified in the preceding paragraph 15 (including filing requirements under

any such laws, rules or regulations) (all liabilities described in paragraphs 15 and 16 of this

Order, “Successor or Transferee Liability”). For the avoidance of doubt, nothing in this

paragraph is intended to release or otherwise affect (x) any Liens or Claims of any kind or nature

against the Subsidiaries, or to affect any person or entity’s rights with respect to such Liens or

Claims against the Subsidiaries, or (y) any LC Lender Liens and Claims.

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18. Except as otherwise expressly provided in this Order or the PSA, nothing shall require the Buyer to: (a) continue or maintain in effect, or assume any liability in respect of any employee, collective bargaining agreement, pension, welfare, fringe benefit or any other benefit plan, trust arrangement or other agreements to which any Debtor is a party or have any responsibility therefor including, without limitation, medical, welfare and pension benefits payable after retirement or other termination of employment; or (b) assume any responsibility as a fiduciary, plan sponsor or otherwise, for making any contribution to, or in respect of the funding, investment, or administration of any employee benefit plan, arrangement, or agreement

(including but not limited to pension plans) or the termination of any such plan, arrangement, or agreement.

19. Effective upon the Closing, except with respect to Assumed Liabilities or any LC Lender Liens and Claims, all persons and entities are forever prohibited and enjoined from commencing or continuing in any matter any action or other proceeding, whether in law or equity, in any judicial, administrative, arbitral, or other proceeding against the Buyer, or its assets (including the Equity Interests), with respect to any (a) Lien or Claim or (b) Successor or

Transferee Liability, including, without limitation, the following actions with respect to clauses

(a) and (b): (i) commencing or continuing any action or other proceeding pending or threatened;

(ii) enforcing, attaching, collecting or recovering in any manner any judgment, award, decree or order; (iii) creating, perfecting or enforcing any Lien or Claim; (iv) asserting any setoff, right of subrogation, or recoupment of any kind; or (v) commencing or continuing any action, in any manner or place, that does not comply with, or is inconsistent with, the provisions of this Order

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or other orders of this Court, or the agreements or actions contemplated or taken in respect

hereof.

Good Faith

20. The transactions contemplated by the PSA are undertaken by the Buyer

without collusion and in good faith, as that term is used in Bankruptcy Code section 363(m), and

accordingly, the reversal or modification on appeal of the authorization provided herein by this

Order to consummate the Sale Transaction shall not affect the validity of the sale of the Equity

Interests. The Buyer has acted in good faith, and is entitled to all of the protections afforded by

Bankruptcy Code section 363(m).

21. As a good faith purchaser of the Equity Interests, the Buyer has not

entered into any agreement with any other potential bidders with respect to the Sale Transaction

and has not colluded with any of the other bidders, potential bidders, or any other parties interested in the Equity Interests, and, therefore, neither the Debtors nor any successor in interest to the Debtors’ estates or any person or entity acting derivatively with respect to the Debtors or their estates shall be entitled to bring an action against the Buyer, and the Sale Transaction may not be avoided pursuant to Bankruptcy Code section 363(n) or otherwise.

Other Provisions

22. The terms and provisions of the PSA and this Order shall be binding in all respects upon, and shall inure to the benefit of, the Debtors and their respective affiliates and subsidiaries, successors and assigns, their estates, and their creditors, the Buyer, and its affiliates, successors and assigns, and any affected third parties including, but not limited to, all persons

asserting Liens or Claims on or against the Equity Interests, notwithstanding any subsequent

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appointment of any trustee(s), examiner with expanded powers, or other responsible person or

officer under any chapter of the Bankruptcy Code, as to which persons such terms and provisions

likewise shall be binding.

23. The PSA and any related agreements, documents, or other instruments

may be modified, amended, or supplemented by the parties thereto, in a writing signed by all parties, and in accordance with the terms thereof, without further order of the Court, provided that any such modification, amendment, or supplement does not have a material adverse effect on the Debtors’ estates. To the extent that any such proposed modification, amendment, or supplement has a material adverse effect on the Debtors’ estates, such proposed modification, amendment, or supplement shall be subject to the consent of the Required Tranche A Lenders and Tranche B Required Consenting Parties (each as defined in the DIP Credit Agreement).

Notwithstanding anything to the contrary contained in this Order or the PSA, the LC Lenders are intended third-party beneficiaries of, and shall be entitled to the protections set forth in, this

Order to the extent expressly applicable to the LC Lenders or the LC Lender Liens and Claims, and any such provisions may not be amended, modified, supplemented, or waived, without the prior written consent of the DIP Administrative Agent and upon notice to the Required Tranche

B Lenders. To the extent that any provision of the PSA conflicts with or is, in any way, inconsistent with any provision of this Order, this Order shall govern and control.

24. The Buyer shall not be required to seek or obtain relief from the automatic

stay under Bankruptcy Code section 362 to enforce any of its remedies under the PSA or any

other sale-related document. The automatic stay imposed by Bankruptcy Code section 362 is

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25. This Order and the PSA shall be binding in all respects upon all creditors of (whether known or unknown), and holders of equity interests in, the Debtors, any holders of

Liens or Claims in, against, or on all or any portion of the Equity Interests and shall not be subject to rejection. Nothing contained in any chapter 11 plan confirmed in any of the Debtors’

Chapter 11 Cases, any order confirming any such chapter 11 plan, any order approving wind- down or dismissal of any of the Debtors’ Chapter 11 Cases or any subsequent chapter 7 cases, or any other order of any type or kind entered in the Debtors’ Chapter 11 Cases shall conflict with or derogate from the provisions of the PSA or this Order, and to the extent of any conflict or derogation between this Order or the PSA and such future plan or order, the terms of this Order and the PSA shall control.

26. The requirements set forth in Bankruptcy Rules 6003(b) and 6004 have been satisfied or otherwise deemed waived.

27. As provided by Bankruptcy Rules 7062 and 9014, the terms and conditions of this Order shall be effective and enforceable immediately upon entry and shall not be subject to the stay provisions contained in Bankruptcy Rule 6004(h). Time is of the essence in closing the sale, and the Debtors and the Buyer intend to close the sale as promptly as practicable following entry of this Order.

28. The provisions of this Order and the PSA are non-severable and mutually dependent. The provisions of this Order shall be self-executing.

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29. The Debtors and each other person having duties or responsibilities under

the PSA or this Order, and their respective agents, representatives, and attorneys, are authorized and empowered to carry out all of the provisions of the PSA, to issue, execute, deliver, file, and

record, as appropriate, the PSA, and any related agreements, and to take any action contemplated by the PSA or this Order, and to issue, execute, deliver, file, and record, as appropriate, such other contracts, instruments, releases, deeds, bills of sale, assignments, or other agreements, and to perform such other acts as are consistent with, and necessary or appropriate to, implement, effectuate, and consummate the PSA and this Order and the transactions contemplated thereby and hereby, all without further application to, or order of, the Court. Without limiting the

generality of the foregoing, this Order shall constitute all approvals and consents, if any, required

by applicable business corporation, trust, and other laws of applicable governmental units with

respect to the implementation and consummation of the PSA and this Order and the transactions

contemplated thereby and hereby.

30. Notwithstanding anything to the contrary contained herein, any authorization contained herein and proceeds obtained by the Seller Parties pursuant to the Sale

Transaction shall be subject to any applicable requirements imposed on the Debtors under the

Final DIP Order and the other DIP Loan Documents; provided that, for the avoidance of doubt,

amounts deposited in the Escrow Account shall not be considered proceeds obtained by the

Seller Parties unless and until such amounts are released from the Escrow Account to the Seller

Parties; provided, further, that, notwithstanding the waterfall provisions set forth in the

Intercreditor Annex (as defined in the Final DIP Order), Net Asset Sale Proceeds (as defined in

the DIP Credit Agreement (as defined in the Final DIP Order)) obtained by the Seller Parties

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pursuant to the Sale Transaction shall be allocated (x) $50 million of (i) the Net Asset Sale

Proceeds obtained pursuant to the Sale Transaction minus (ii) any Net Asset Sale Proceeds

received pursuant to the sale transaction proposed in respect of the MS3 Project (as defined in

the PSA), to immediately repay amounts currently outstanding in respect of any Tranche A-2

Roll-Up Loans (as defined in the DIP Credit Agreement) and (y) the remaining amount of Net

Asset Sale Proceeds from the Sale Transaction shall be deposited into the DIP Facilities Blocked

Account (as defined in the Final DIP Order) for use in accordance with the DIP Budget (as

defined in the Final DIP Order) and the other DIP Loan Documents, and the Net Asset Sale

Proceeds referred to in this subclause (y) shall be considered “Budgeted Asset Sale Proceeds” under the DIP Credit Agreement. For the avoidance of doubt, notwithstanding the transfer of the

Equity Interests to the Buyer pursuant to the Sale Transaction, in accordance with the terms of the PSA the Project LCs shall be permitted to remain outstanding for 180 days following consummation of the Sale Transaction as an accommodation to the Buyer and to the Seller

Parties and, in addition to, and without in any way limiting, any rights and entitlements provided with respect to such Project LCs pursuant to the PSA, such Project LCs shall continue to be (x) treated as Letters of Credit (as defined in the DIP Credit Agreement) issued (or deemed issued) under the DIP Credit Agreement and (y) entitled to all rights and entitlements attributed to

Letters of Credit under the DIP Credit Agreement (including, without limitation, all rights to reimbursement by the Borrower and the applicable Lenders under, and in accordance with, the

DIP Credit Agreement); provided, however, that, for the avoidance of doubt and without

derogation of the obligations of the Buyer, its Affiliates and the Companies pursuant to the LC

Return Documents and the LC Security Documents, in no event shall (i) the Buyer, its Affiliates

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or the Companies be liable for any increased costs, expenses, fees or other amounts payable under the DIP Facility resulting from any act or omission by Seller, any Affiliate thereof or any other Person (other than the Buyer, the Companies, and/or any Affiliate of any thereof) in connection with the DIP Facility (as between Buyer and Seller, any such increased costs, expenses, fees or other amounts to be solely for the account of Seller and its Affiliates) or (ii) the availability or validity of the Project LCs (after amendment and reissuance thereof in accordance with Section 6.13(a) of the PSA) be in any way reduced or limited in connection with any act or omission by Seller, any Affiliate thereof or any other Person (other than the Buyer, the

Companies, and/or any Affiliate of any thereof) in connection with the DIP Facility.

31. The requirements set forth in Local Bankruptcy Rule 9013-1(b) are satisfied by the contents of the Motion.

32. The failure to specifically include any particular provisions of the PSA in this Order shall not diminish or impair the effectiveness of such provision, it being the intent of the Court that the PSA be authorized and approved in its entirety; provided, however, that this

Order shall govern if there is any direct conflict, and only to the extent of such conflict, between

the PSA (including all ancillary documents executed in connection therewith) and this Order.

33. This Court shall retain exclusive jurisdiction to, among other things,

interpret, enforce, and implement the terms and provisions of this Order and the PSA, including

all amendments thereto, any waivers and consents thereunder, and of each of the agreements

executed in connections therewith in all respects, and to adjudicate, if necessary, any and all

disputes concerning or relating in any way to the Sale Transaction. This Court retains

jurisdiction to compel delivery of the Equity Interests, to protect the Buyer and its assets,

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including the Equity Interests, against any Claims, Liens, and Successor or Transferee Liability

and to enter orders, as appropriate, pursuant to sections 105 or 363 (or other applicable provisions) of the Bankruptcy Code necessary to transfer the Equity Interests to the Buyer.

Dated: New York, New York , 2016

HONORABLE STUART M. BERNSTEIN

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EXHIBIT C

SALE PROCEDURES ORDER

[See attached]

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

------x In re: : Chapter 11 : SUNEDISON, INC., et al.,1 : Case No. 16-10992 (SMB) : Debtors. : (Jointly Administered) : ------x RE: Docket No. __

ORDER, PURSUANT TO BANKRUPTCY CODE SECTIONS 105(A), 363, 503, AND 507 AND BANKRUPTCY RULES 2002, 6004, 9007, AND 9014, (A) AUTHORIZING CERTAIN DEBTORS’ ENTRY INTO THE STALKING HORSE AGREEMENT, (B) APPROVING BIDDING PROCEDURES AND STALKING HORSE BID PROTECTIONS IN CONNECTION WITH SALE OF ASSETS OF THE DEBTORS, (C) SCHEDULING AUCTION AND SALE HEARING, AND (D) GRANTING RELATED RELIEF

Upon the motion (the “Motion”) 2 of the above-captioned debtors and debtors-in-

possession (collectively, the “Debtors”) seeking, among other things, entry of an order: (a)

authorizing the Seller Parties (as defined below) to enter into, and perform their obligations

under, that certain Purchase and Sale Agreement, dated as of July 1, 2016 (as may be amended or

otherwise modified in accordance with the terms thereof and hereof, the “Stalking Horse

Agreement”), by and among SunEdison Inc., a Delaware corporation (“Seller Parent”), First

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s tax identification number are as follows: SunEdison, Inc. (5767); SunEdison DG, LLC (N/A); SUNE Wind Holdings, Inc. (2144); SUNE Hawaii Solar Holdings, LLC (0994); First Wind Solar Portfolio, LLC (5014); First Wind California Holdings, LLC (7697); SunEdison Holdings Corporation (8669); SunEdison Utility Holdings, Inc. (6443); SunEdison International, Inc. (4551); SUNE ML 1, LLC (3132); MEMC Pasadena, Inc. (5238); Solaicx (1969); SunEdison Contracting, LLC (3819); NVT, LLC (5370); NVT Licenses, LLC (5445); Team-Solar, Inc. (7782); SunEdison Canada, LLC (6287); Enflex Corporation (5515); Fotowatio Renewable Ventures, Inc. (1788); Silver Ridge Power Holdings, LLC (5886); SunEdison International, LLC (1567); Sun Edison LLC (1450); SunEdison Products Singapore Pte. Ltd. (7373); SunEdison Residential Services, LLC (5787); PVT Solar, Inc. (3308); SEV Merger Sub Inc. (N/A). The address of the Debtors’ corporate headquarters is 13736 Riverport Dr., Maryland Heights, Missouri 63043. 2 Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Motion or the Bidding Procedures, as applicable. 1

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Wind California Holdings, LLC, a Delaware limited liability company (the “Seller” and together with Seller Parent, the “Seller Parties”), and DESRI MS2 Development, L.L.C. (the “Stalking

Horse Buyer”), (b) establishing bidding procedures (the “Bidding Procedures”) to govern the sale by the Seller of 100% of the limited liability company or other equity interests (collectively, the

“Equity Interests”) of (i) Imperial Valley Solar 2, LLC, a Delaware limited liability company

(“IVS2”), and (ii) 88FT 8ME LLC, a Delaware limited liability company (“88FT”, and together with IVS2, the “Companies”), and approving certain bid protections in favor of the Stalking

Horse Buyer in connection therewith; (c) scheduling an auction to sell the Equity Interests (the

“Auction”) and the Sale Hearing; and (d) granting other related relief, as more fully described in the Motion; and it appearing that the relief requested is in the best interests of the Debtors’ estates, their creditors, and other parties in interest; and the Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. §§ 157 and 1334; and consideration of the Motion and the relief requested therein being a core proceeding pursuant to

28 U.S.C. § 157; and venue being proper before this Court pursuant to 28 U.S.C. §§ 1408 and

1409; and due and proper notice of the Motion having been provided under the particular circumstances; and it appearing that no other or further notice need be provided; and after due deliberation and sufficient cause appearing therefor,

IT IS HEREBY FOUND AND CONCLUDED that:3

A. The statutory bases for the relief requested in the Motion are sections 105(a), 363,

503, and 507 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy

Code”) and Rules 2002, 6004, 9007, and 9014 of the Federal Rules of Bankruptcy Procedure

3 The findings and conclusions set forth herein constitute the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule 9014. To the extent that any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any of the following conclusions of law constitute findings of fact, they are adopted as such. 2

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(the “Bankruptcy Rules”).

B. Notice of the Motion having been given to: (a) the Office of the United States

Trustee for the Southern District of New York; (b) counsel to the administrative agent under the

Debtors’ prepetition first lien credit agreement; (c) counsel to the Tranche B Lenders (as defined in the DIP Credit Agreement) and the steering committee of the second lien creditors (the

“Steering Committee”); (d) counsel to the administrative agent under the Debtors’ prepetition second lien credit agreement; (e) counsel to the collateral trustee under the Debtors’ prepetition second lien credit agreement; (f) counsel to the indenture trustee under each of the Debtors’ outstanding bond issuances; (g) the U.S. Attorney for the Southern District of New York;

(h) counsel to the administrative agent under the postpetition debtor-in-possession financing facility; (i) counsel to the Committee in these Chapter 11 Cases; (j) counsel to TerraForm Power,

Inc. and TerraForm Global, Inc.; (k) the Internal Revenue Service; (l) the Securities and

Exchange Commission; (m) any party known or reasonably believed to have asserted a lien, encumbrance, claim or other interest in the Equity Interests; (n) any party known or reasonably believed to have expressed an interest in acquiring the Equity Interests; and (o) any such other party entitled to notice pursuant to Local Bankruptcy Rule 9013-1(b). Good and sufficient notice of the Motion, Bidding Procedures, and the relief sought in the Motion has been given under the circumstances, and no other or further notice is required except as set forth herein and in the

Bidding Procedures. A reasonable opportunity to object or be heard regarding the relief provided herein has been afforded to parties in interest.

C. The Debtors have articulated good and sufficient reasons for this Court to grant the relief requested in the Motion regarding the sale process, including (i) the Seller Parties’ entry into, and performance under, the Stalking Horse Agreement (provided, however, that this

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Order shall not authorize the consummation of the Sale Transaction set forth in the Stalking

Horse Agreement), (ii) the payment of the Break-Up Fee and the Expense Reimbursement to the

Stalking Horse Buyer in accordance with the Stalking Horse Agreement, and (iii) the scheduling of the Bid Deadline, the Auction, and the Sale Hearing with respect to the proposed sale of the

Equity Interests free and clear of Liens and Liabilities (each as defined in the Stalking Horse

Agreement) (other than those expressly permitted by the Stalking Horse Agreement or the Bidder

Agreement of the Prevailing Purchaser, as applicable) (the “Sale”).

D. The Stalking Horse Agreement and its terms were negotiated by the Seller Parties and the Stalking Horse Buyer in good faith and at arms-length. The Stalking Horse Agreement represents the highest or otherwise best offer that the Debtors have received to date to purchase the Equity Interests.

E. Pursuit of the Stalking Horse Buyer as a “stalking-horse” and its Stalking Horse

Agreement as a “stalking horse sale agreement” is in the best interests of the Debtors and the

Debtors’ estates and creditors, and it reflects a sound exercise of the Debtors’ business judgment.

The Stalking Horse Agreement will enable the Debtors to secure a fair and adequate baseline price for the Equity Interests and, accordingly, will provide a clear benefit to the Debtors’ estates, their creditors, and all other parties in interest.

F. The Bidding Procedures are reasonably designed to maximize the value to be achieved for the Equity Interests and the Debtors have articulated good and sufficient business reasons for the Court to approve the Bidding Procedures.

G. The Debtors have demonstrated that the Break-Up Fee and the Expense

Reimbursement are (i) reasonable and appropriate conditions of the Stalking Horse Agreement and (ii) actual and necessary costs and expenses of preserving the Debtors’ estates, within the

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meaning of section 503(b) of the Bankruptcy Code, and of substantial benefit to the Debtors’ estates by inducing the Stalking Horse Buyer’s bid, which has established a bid standard or minimum for other bidders for the Equity Interests, thereby ensuring that during the Auction, if any, the Seller receives the highest or best bid possible for the Equity Interests.

H. Agreeing to pay the Break-Up Fee and the Expense Reimbursement is within the sound business judgment of the Seller Parties and will increase the likelihood that the Seller will receive the greatest possible consideration for the Equity Interests. The Debtors have articulated good and sufficient business reasons for the Court to approve the Break-Up Fee and the Expense

Reimbursement.

I. The Stalking Horse Buyer is not an “insider” or “affiliate” of any of the Debtors, as those terms are defined in section 101 of the Bankruptcy Code, and no common identity of incorporators, directors, or controlling stockholders existed between the Stalking Horse Buyer and the Debtors. The Stalking Horse Buyer and its respective counsel and advisors have acted in

“good faith” within the meaning of section 363(m) of the Bankruptcy Code in connection with the Stalking Horse Buyer’s negotiation of the Break-Up Fee and the Expense Reimbursement and the Bidding Procedures and the Stalking Horse Buyer’s negotiation and entry into the

Stalking Horse Agreement.

J. The entry of this Order is in the best interests of the Debtors, their estates, their creditors, and other parties in interest.

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:

1. The Motion is GRANTED as it relates to relief described in this Order, as set forth herein.

2. The Bidding Procedures, in the form attached hereto as Exhibit 1, are hereby

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approved in their entirety. The Debtors are authorized to take any and all actions necessary or appropriate to implement the Bidding Procedures in accordance with their terms.

3. All objections to the relief requested in the Motion that have not been withdrawn, waived, or settled as announced to the Court at the hearing on the Motion or by stipulation filed with the Court, are overruled except as otherwise set forth herein.

4. The Seller Parties are authorized to enter into, and perform its obligations under, the Stalking Horse Agreement (provided, however, that this Order shall not authorize the consummation of the Sale Transaction set forth in the Stalking Horse Agreement) and to conduct an Auction in accordance with the Bidding Procedures.

5. All bidders submitting a Qualified Bid are deemed to have submitted to the exclusive jurisdiction of this Court with respect to all matters related to the Bidding Procedures, the Auction and the terms and conditions of the sale or transfer of the Equity Interests identified under the Stalking Horse Agreement.

6. If the Stalking Horse Buyer’s bid, as reflected in the Stalking Horse Agreement, is the only Qualified Bid in respect of the Equity Interests that is received by the Debtors by the

Bid Deadline, no Auction will be conducted for the Equity Interests, and the Stalking Horse

Buyer will be the Prevailing Bidder for the Equity Interests.

7. Each Qualified Bidder participating in the Auction shall confirm in writing that

(a) it has not engaged in any collusion with respect to the submission of any bid, the bidding or the Auction and (b) its Qualified Bid is a good faith bona fide offer that it intends to consummate if selected as a Prevailing Bidder. All proceedings at an Auction shall be transcribed.

8. The Break-Up Fee and the Expense Reimbursement are approved and shall be payable to the Stalking Horse Buyer in cash out of the proceeds of any Alternative Transaction

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(as defined in the Stalking Horse Agreement) at the closing of such Alternative Transaction in accordance with the terms and conditions of the Stalking Horse Agreement. The Break-Up Fee and the Expense Reimbursement (i) shall be paid to the Stalking Horse Buyer prior to any other payments being made out of the proceeds of any Alternative Transaction, and (ii) shall be paid to the Stalking Horse Buyer free and clear of all prepetition and postpetition Liens, Liabilities, and claims (as defined in the Bankruptcy Code), including, without limitation, all prepetition and postpetition Liens, Liabilities, and claims (as defined in the Bankruptcy Code) of the Prepetition

Secured Parties and the DIP Secured Parties (as each such term is defined in the Final DIP Order

(as defined below)) under, or otherwise described in, the Final Order (I) Authorizing Debtors to

(A) Obtain Senior Secured, Superpriority, Postpetition Financing Pursuant to Bankruptcy Code

Sections 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1), and 364(e) and (B) Utilize

Cash Collateral Pursuant to Bankruptcy Code Section 363, and (II) Granting Adequate

Protection to Prepetition Secured Parties Pursuant to Bankruptcy Code Sections 361, 362, 363 and 364 [Docket No. 523] (the “Final DIP Order”) or the other DIP Loan Documents (as defined in the Final DIP Order), in each case notwithstanding any provision to the contrary in the Final

DIP Order, the other DIP Loan Documents, or any other order of this Court. In addition, the obligation of Seller Parties to pay the Break-Up Fee and the Expense Reimbursement shall survive the termination of the Stalking Horse Agreement.

9. Promptly following the Debtors’ selection of the Prevailing Purchaser, the

Debtors shall announce the Prevailing Purchaser and shall file with this Court a notice of the

Prevailing Purchaser.

10. Notwithstanding section 362 of the Bankruptcy Code, the Stalking Horse

Purchaser shall be permitted to terminate the Stalking Horse Agreement in accordance with its

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terms.

11. No entity, other than the Stalking Horse Buyer, shall be entitled to any expense reimbursement, break-up fee, “topping,” termination, contribution, or other similar fee or payment in connection with the Sale.

12. The Bid Deadline is August 4, 2016 at 5:00 p.m. (EST). The Auction, if necessary, shall be held on August 9, 2016 at 10:00 a.m. (EST). The Sale Hearing shall be conducted on August 11, 2016 at 10:00 a.m. (EST). The Debtors may seek the entry of an order of this Court at the Sale Hearing approving and authorizing the Sale to the Stalking Horse

Buyer or such other Prevailing Purchaser, as applicable, on terms and conditions consistent with the Stalking Horse Agreement or Bidder Agreement, as applicable. All obligations of the

Debtors set forth in the Stalking Horse Agreement that are intended to be performed prior to the

Sale Hearing and/or entry of the Sale Approval Order (as defined in the Stalking Horse

Agreement) are authorized as set forth herein and are fully enforceable as of the date of entry of this Order. The Sale Hearing may be adjourned from time to time by the Debtors without further notice to any other party in interest other than by announcement of the adjournment in open court on the date scheduled for the Sale Hearing or a notice filed with the Court; provided that, for the avoidance of doubt, the Stalking Horse Buyer shall retain its rights and remedies to the extent set forth in the Stalking Horse Agreement in the event that the Debtors decide to adjourn the Sale

Hearing.

13. Objections, if any, to the sale of the Equity Interests to the Stalking Horse Buyer or such other Prevailing Purchaser, as applicable, must: (a) be in writing and filed with this

Court; (b) comply with the Bankruptcy Rules; (c) set forth the name of the objecting party, the nature and amount of any claims or interests held or asserted against the Debtors’ estate or

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properties, the basis for the objection, and the specific grounds therefor; and (d) be served upon

(such as to be received by) the following parties (collectively, the “Objection Notice Parties”) by the appropriate deadline established in this Order:

a) counsel for the Debtors, Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036, Attn: Shana Elberg ([email protected]), and Skadden, Arps, Slate, Meagher & Flom LLP, 1440 New York Avenue, N.W., Washington D.C., 20005, Attn: Richard Oliver ([email protected]);

b) the Office of the United States Trustee for the Southern District of New York, 201 Varick Street, Suite 1006, New York, NY 10014, Attn: Paul K. Schwartzberg, Esq. ([email protected]);

c) counsel to the Stalking Horse Buyer, (i) Latham & Watkins LLP, 330 North Wabash Avenue, Suite 2800, Chicago, IL 60611, Attn: Peter P. Knight, Email: [email protected], and (ii) Latham & Watkins LLP, 355 South Grand Avenue, Los Angeles, CA 90071-1560, Attn: Adam E. Malatesta, Email: [email protected];

d) counsel for the DIP Agent, White & Case LLP, 1155 Avenue of the Americas, New York, NY 10036, Attn: Scott Greissman ([email protected]) and Elizabeth Feld ([email protected]), and counsel for the Tranche B Lenders, Akin Gump Strauss Hauer & Feld, LLP, One Bryant Park, New York, NY 10036, Attn: Arik Preis ([email protected]);

e) counsel to the official committee of unsecured creditors appointed in the Chapter 11 Cases, Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY 10153, Attn: Matthew Barr ([email protected]) and Jill Frizzley ([email protected]); and

f) those parties who have formally filed requests for notice in this Chapter 11 Case pursuant to Bankruptcy Rule 2002.

14. Objections, if any, to the relief requested in the Motion to be considered at the

Sale Hearing, must be served upon (such as to be received by) the Objection Notice Parties on or before 4:00 p.m. (EST) on August 4, 2016.

15. Notice of the Motion as provided therein shall be deemed good and sufficient notice, and the requirements of Bankruptcy Rule 6004(a) are satisfied by such notice or otherwise deemed waived. 9

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16. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this Order shall be immediately effective and enforceable upon its entry.

17. All time periods set forth in this Order shall be calculated in accordance with

Bankruptcy Rule 9006(a).

18. The Debtors are authorized to take all actions necessary to effectuate the relief granted pursuant to this Order in accordance with the Motion.

19. The Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Order.

Dated: New York, New York , 2016

HONORABLE STUART M. BERNSTEIN

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Exhibit 1

Bidding Procedures

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BIDDING PROCEDURES

These “Bidding Procedures” set forth the process by which First Wind California Holdings, LLC (the “Seller”), in the pending chapter 11 bankruptcy cases of the Seller and its affiliated debtors (collectively with the Seller, the “Debtors”) in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”), Case No. 16-10992 (Jointly Administered), is authorized to conduct a sale by auction (the “Auction”) of 100% of the membership and other equity interests of Imperial Valley Solar 2, LLC, a Delaware limited liability company (“IVS2”), and 88FT 8ME, LLC, a Delaware limited liability company (“88FT,” and together with IVS2, the “Subsidiaries;” the equity interests of the Subsidiaries are collectively referred to herein as the “Acquired Equity Interests”), in accordance herewith and with the Bidding Procedures Order (as defined below) (the sale of the Acquired Equity Interests in accordance with these Bidding Procedures, the Bidding Procedures Order (as defined below), and any other applicable Bankruptcy Court orders, a “Qualifying Sale”).

These Bidding Procedures were approved by order of the Bankruptcy Court dated [______], 2016 (the “Bidding Procedures Order”), pursuant to the motion of the Seller and the other Debtors for (a) an order (i) approving bidding procedures in connection with the sale of the Acquired Equity Interests, (ii) approving the form and manner of notice, (iii) scheduling an auction and sale hearing, and (iv) granting related relief; and (b) an order (i) approving the Purchase and Sale Agreement, dated as of July 1, 2016 (together with all exhibits and schedules thereto, and as amended, restated or otherwise modified in accordance with its terms, the “Stalking Horse Agreement”), between the Seller, as the seller, and DESRI MS2 Development, L.L.C., as the buyer (the “Stalking Horse Buyer”), a copy of which was filed with the Bankruptcy Court on [______], 2016, (ii) authorizing the sale of the Acquired Equity Interests free and clear of all liens, claims, and encumbrances (other than those permitted by the Stalking Horse Agreement or the Bidder Agreement (as defined below) of the Prevailing Purchaser (as defined below), as applicable), and (iii) granting related relief (the “Motion”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed them in the Motion and/or the Bidding Procedures Order, as applicable.

Any party desiring to obtain a copy of the Motion, the Stalking Horse Agreement, the Bidding Procedures, and/or the Bidding Procedures Order, in addition to any related motions that may be filed, may do so by accessing the website of the Debtors’ claims and noticing agent, Prime Clerk, at https://cases.primeclerk.com/sunedison, or the Bankruptcy Court’s internet site http://www.nysb.uscourts.gov, for a fee, through an account obtained from the PACER website at http://pacer.psc.uscourts.gov. The documents may also be obtained by contacting counsel to the Debtors, Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036, Attn: Shana Elberg, Annie Li.

The Debtors provide these Bidding Procedures, whereby prospective bidders may qualify for and participate in the Auction, to allow interested parties to compete to make the highest or otherwise best offer for the Acquired Equity Interests.

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1. Confidentiality Agreements

Upon execution of a confidentiality agreement, in form and substance satisfactory to the Debtors, prior to the Bid Deadline any qualified party that wishes to conduct due diligence on the Acquired Equity Interests and/or the Subsidiaries may be granted access to information that has been or will be provided to the other bidders subject to these Bidding Procedures and the Bidding Procedures Order. For a party to be considered a “qualified party,” such party must demonstrate, in the Debtors’ judgment in consultation with the Committee1, that such party has the ability (including, without limitation, from a financial and, to the extent applicable, a regulatory approval perspective) to close the Qualifying Sale following the Bankruptcy Court’s approval of such party’s Qualified Bid as the Prevailing Bid (as defined below). Additionally, the “material information” to be provided to such qualified parties will be information that the Debtors believe is appropriate in light of the Debtors’ need to protect their trade secrets and confidential research, development, and commercial information. For the avoidance of doubt, the Stalking Horse Buyer shall not be required to execute a confidentiality agreement or make any demonstration required under this Paragraph 1; provided, however, that all information (material and otherwise) concerning the Acquired Equity Interests and the Subsidiaries made available to the Stalking Horse Buyer will be promptly made available by the Debtors to any qualified party that enters into a confidentiality agreement with the Debtors.

2. Due Diligence from Bidders

Each party expressing an interest in the Acquired Equity Interests shall comply with all reasonable requests for additional information by the Debtors regarding such party and its contemplated transaction. Failure by a party to comply with such reasonable requests for additional information and due diligence access may be a basis for the Debtors, in consultation with the Committee and DIP Lenders2, to determine that such bidder is not a Qualified Bidder (as defined below).

By submitting a bid, each bidder (excluding the Stalking Horse Buyer except as expressly provided in the Stalking Horse Agreement) shall be deemed to acknowledge and represent that it

1 All references herein to the “Committee” shall be to the legal and financial advisors to the Official Committee of Unsecured Creditors. Such legal and financial advisors shall treat information received pursuant to these Bidding Procedures as “highly confidential” pursuant to any and all applicable non- disclosure and confidentiality agreements, and shall receive and review such information on an “advisors’ eyes only” basis, unless otherwise agreed to by the Committee and the Seller. 2 All references herein to the “DIP Lenders” shall be to the legal and financial advisors to the Administrative Agent (the “DIP Agent”) and the Tranche A Lenders (each as defined in the DIP Credit Agreement (defined below)) and the legal and financial advisors to the Tranche B Lenders (as defined in the DIP Credit Agreement). Such legal and financial advisors shall treat information received pursuant to these Bidding Procedures as “highly confidential” pursuant to any and all applicable non-disclosure and confidentiality agreements, and shall receive and review such information on an “advisors’ eyes only” basis, unless otherwise agreed to by the DIP Lenders and the Seller. 2

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has had an opportunity to conduct due diligence on the Debtors prior to making its bid; that it has relied solely upon its own independent due diligence in making its bid; and that it did not rely upon any written or oral statement, representations, promises, warranties, or guaranties whatsoever, whether express, implied, by operation of law, or otherwise, regarding the Debtors, or the completeness of any information provided in connection therewith.

3. Determination of “Qualified Bidder” Status

To participate in the bidding process to acquire the Acquired Equity Interests and be deemed a “Qualified Bidder,” each potential bidder (or group acting together as a bidder to the extent permitted hereunder and under the Bidding Procedures Order), other than the Stalking Horse Buyer, must deliver to (a) the Debtors, SunEdison, Inc., 600 Clipper Drive, Belmont, CA 94002, Attn: Hy Martin ([email protected]); (b) counsel for the Debtors, Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036, Attn: Shana Elberg ([email protected]), and Skadden, Arps, Slate, Meagher & Flom LLP, 1440 New York Avenue, N.W., Washington D.C., 20005, Attn: Richard Oliver ([email protected]); (c) financial advisor to the Debtors, Rothschild Inc., 1251 Avenue of the Americas, 33rd Floor, New York, NY 10020, Attn: Homer Parkhill ([email protected]); (d) counsel to the Committee, Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY 10153, Attn: Gavin Westerman ([email protected]) and Jill Frizzley ([email protected]); and (e) counsel for the DIP Agent, White & Case LLP, 1155 Avenue of the Americas, New York, NY 10036, Attn: Scott Greissman ([email protected]) and Elizabeth Feld ([email protected]), and counsel for the Tranche B Lenders, Akin Gump Strauss Hauer & Feld, LLP, One Bryant Park, New York, NY 10036, Attn: Arik Preis ([email protected]); a binding written offer, so as to be received by no later than August 4, 2016 at 5:00 p.m. (EST) (the “Bid Deadline”), that:

(a) states that such bidder offers to purchase the Acquired Equity Interests;

(b) provides evidence satisfactory to the Debtors that such bidder is reasonably likely to satisfy all customary conditions and other requirements for performing under the existing power purchase agreement with respect to the project owned by the Subsidiaries;

(c) includes executed transaction documents, including a definitive purchase agreement and all schedules and exhibits thereto (substantially in the same detail as those attached to the Stalking Horse Agreement filed as Exhibit C to the Motion), signed by an authorized representative of such bidder, pursuant to which such bidder proposes to effectuate a transaction that qualifies as a Qualifying Sale (the “Bidder Agreement”), and such Bidder Agreement shall also include a blacklined copy of the Bidder Agreement marked against the Stalking Horse Agreement to show all changes requested by such bidder (including those related

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to the consideration to be paid for the Acquired Equity Interests and the closing conditions in respect of such transaction);

(d) proposes a purchase price (which consideration may consist of cash or otherwise if permitted by the Debtors in their sole discretion) that is a higher and/or better offer for the Acquired Equity Interests (as compared to the offer of the Stalking Horse Buyer reflected in the Stalking Horse Agreement); provided, however, that an offer shall not be considered a higher and/or better offer unless such offer provides for a purchase price to be paid at the consummation of the transaction that is equal to or greater than:

(i) the Purchase Price under, and as defined in, the Stalking Horse Agreement (the “Initial Stalking Horse Purchase Price”), plus

(ii) the aggregate face amount of all Company Liabilities under, and as defined in, the Stalking Horse Agreement, plus

(iii) a break-up fee equal to $2,400,000 (representing 3.4% of the sum of the immediately preceding clause (i)) (the “Break-Up Fee”), plus

(iv) the aggregate amount of the Expense Reimbursement under, and as defined in, the Stalking Horse Agreement, which amount shall not exceed $800,000 (collectively, the “Reimbursable Expenses”),

provided, however, that any portion of the offered purchase price not to be paid in cash at closing may be appropriately discounted in the Debtors reasonable discretion;

(e) is irrevocable until and unless the Debtors accept a higher or otherwise better Qualified Bid and the bidder is not selected as a Back-Up Bidder (as defined below);

(f) does not request any expense reimbursement, break-up fee, “topping,” termination, contribution, or other similar fee or payment;

(g) (i) provides for replacement or back-to-back letters of credit or posting of adequate cash collateral required for development of the project owned by the Subsidiaries, or (ii) obtains written extensions of the currently outstanding letters of credit securing development of the project owned by the Subsidiaries from the existing providers thereof;

(h) contains such financial and other information that demonstrates to the reasonable satisfaction of the Debtors the bidder’s financial and other capabilities to 4

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consummate the transactions contemplated by the Bidder Agreement in accordance with these Bidding Procedures and the Bidding Procedures Order, which information shall be satisfactory to the Debtors (in consultation with the Committee), including (but not limited to) contact names and numbers for verification of financing sources;

(i) contains such information requested by the Debtors regarding the identity of the entity or entities that will be bidding for the Acquired Equity Interests or otherwise participating in such bid, and the complete terms of any such participation, which information is satisfactory to the Debtors (in consultation with the Committee);

(j) includes evidence of authorization and approval from the bidder’s board of directors (or comparable governing body) with respect to the submission, execution, delivery, and closing of the Bidder Agreement, and financing agreements (or binding commitment letters) and any other ancillary documents or agreements, which evidence is satisfactory to the Debtors;

(k) includes covenants and conditions commercially reasonable for a transaction of this type and acceptable to the Debtors (in consultation with the Committee and the DIP Lenders), but under no circumstances shall a bid be conditioned on the obtaining, or the sufficiency of, financing or any internal or credit committee approval, syndication requirements, or on the outcome or review of due diligence, but may be subject to the accuracy at the closing of specified representations and warranties or the satisfaction at the closing of specified conditions, all of such shall be specifically set forth in the Bidder Agreement; and

(l) is accompanied by a good faith cash deposit in an amount no less than 10% of the total purchase price set forth in the Bidder Agreement, which shall be deposited in an escrow account to be established by the Debtors subject to a customary escrow agreement satisfactory to the Debtors, and which shall be credited against the purchase price paid by the bidder if such bidder is the Prevailing Purchaser (as defined below); provided, however, that, for the avoidance of doubt, the application of this requirement to the Stalking Horse Buyer shall be subject to the terms of the Stalking Horse Agreement.

By submitting a bid, a bidder (other than the Stalking Horse Buyer) shall be deemed to waive the right to assert or seek payment of any “break-up” fee, expense reimbursement, or other post-filing claim, including administrative expense claims, and to the extent otherwise applicable, a substantial contribution claim under section 503 of the Bankruptcy Code, with respect to its bid or the marketing or auction process.

A competing bid meeting all of the above requirements (all of which information shall be shared with the Committee and the DIP Lenders), as may be supplemented or waived by the 5

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Debtors, in consultation with the Committee and the DIP Lenders, shall constitute a “Qualified Bid.” Subject to the other terms and conditions set forth herein, the Debtors shall make a determination, in consultation with the Committee and the DIP Lenders, regarding whether a bid is a Qualified Bid and shall notify all bidders before the Auction whether their bids have been determined to be Qualified Bids. Notwithstanding any provision herein to the contrary, the Stalking Horse Buyer shall constitute a Qualified Bidder and the Stalking Horse Agreement (including any Overbid (as defined below) made in connection therewith) shall constitute a Qualified Bid for all purposes.

Under no circumstances will the Stalking Horse Bidder (or any other bidder) be permitted to review any bids of other bidders, or any information regarding any other bidders, except for the Auction Baseline Bid (as defined below), the terms of any Overbid (as defined below) made at the Auction, and any other bids the Debtors determine to disclose to all Qualified Bidders in connection with the Auction.

4. Modifications of Qualified Bids Prior to Auction

Between the date that the Debtors notify a bidder that it is a Qualified Bidder and the Auction, the Debtors may discuss, negotiate, or seek clarification of any Qualified Bid from a Qualified Bidder. Without the prior written consent of the Debtors (upon consultation with the Committee and the DIP Lenders), a Qualified Bidder (other than the Stalking Horse Buyer to the extent permitted under the Stalking Horse Agreement) may not modify, amend, or withdraw its Qualified Bid, except for proposed amendments to increase the consideration contemplated by, or otherwise improve the terms of, the Qualified Bid, during the period of time such Qualified Bid remains binding as specified herein; provided that any Qualified Bid, including any bid of the Stalking Horse Buyer, may be improved at the Auction as set forth herein.

5. Auction Baseline Bid / No Qualified Bids

On or prior to 10:00 a.m. (EST) one (1) business day before the Auction, the Debtors shall provide each Qualified Bidder and the Committee a copy of the highest or otherwise best Qualified Bid received (such highest or otherwise best Qualified Bid, the “Auction Baseline Bid”), which shall serve as the opening bid at the Auction if more than one Qualified Bid is timely received by the Debtors. If no Qualified Bids (other than the Stalking Horse Agreement) are submitted by the Bid Deadline, the Debtors shall not hold an Auction and shall proceed to obtain Bankruptcy Court approval of the Stalking Horse Agreement as the Prevailing Bid (as defined below) and to consummate the Stalking Horse Agreement in accordance with its terms.

6. Auction

In the event that the Debtors in consultation with the Committee determine that they have received more than one Qualified Bid, the Debtors are authorized to conduct an Auction. Other than as expressly set forth herein, the Debtors may conduct an Auction in the manner that they determine, in consultation with the Committee and the DIP Lenders, will result in the highest or 6

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otherwise best offer for the Acquired Equity Interests. The Auction shall be held on August 9, 2016 at 10:00 a.m. (EST), at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036, or such other location and time as shall be timely communicated to all entities entitled to attend the Auction. The Debtors, the Qualified Bidders, the Committee, the DIP Lenders, and their respective advisors shall be permitted to attend the Auction.

An “Overbid” is any Qualified Bid made by a Qualified Bidder at the Auction subsequent to the Debtors’ announcement of the Auction Baseline Bid. To submit an Overbid at the Auction, a Qualified Bidder must comply with all of the following conditions:

(a) any Overbid shall be made in increments valued at not less than $500,000 greater than the Auction Baseline Bid or then highest or otherwise best Overbid, as applicable;

(b) the Stalking Horse Buyer (or its designee(s)) shall be permitted to bid at the Auction;

(c) any Overbid shall remain open and binding on the Qualified Bidder until and unless (i) the Debtors accept another Overbid that is a higher Qualified Bid for the Acquired Equity Interests, and (ii) such Overbid is not selected as a Back-Up Bid (as defined below); and

(d) to the extent not previously provided, a Qualified Bidder submitting an Overbid must submit, as part of its Overbid, evidence demonstrating such Qualified Bidder’s ability (including, without limitation, from a financial and, to the extent applicable, a regulatory approval perspective) to close the transactions proposed by such Overbid within a reasonable period following the Bankruptcy Court’s approval of the Prevailing Bid as determined by the Debtors, in consultation with the Committee.

In addition to complying with the above requirements, the Auction shall be governed by the following procedures:

(i) the Auction will be conducted openly by the Debtors, and only the Qualified Bidders and their respective advisors shall be entitled to make any subsequent Overbids at the Auction;

(ii) each Qualified Bidder shall be required to represent that it has not engaged in any collusion with respect to the bidding or the sale;

(iii) the Qualified Bidders shall appear in person at the Auction, through a duly authorized representative, or as otherwise agreed to by the Debtors;

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(iv) the bidding shall commence and proceed as determined by the Debtors, in consultation with the Committee and the DIP Lenders;

(v) the bidding at the Auction shall be transcribed or videotaped, at the Debtors’ election;

(vi) all Qualified Bidders shall have the right to submit Overbids and propose additional modifications to the Stalking Horse Agreement or the Bidder Agreement, as applicable, at the Auction; provided that (a) any such modifications to the Stalking Horse Agreement or Bidder Agreement, must comply with these Bidding Procedures (including the requirements for an Overbid) and the Bidding Procedures Order, (b) on an aggregate basis and viewed in whole, shall not be less favorable to the Debtors than such Qualified Bidder’s previous Qualified Bid or Overbid, as applicable, as determined by the Debtors in consultation with the Committee and DIP Lenders, and (c) for the avoidance of doubt, each such additional or modified bid must meet the requirements of a Qualified Bid and Overbid;

(vii) in each round of bidding, the Stalking Horse Buyer (or its designee(s)) shall have the right to submit a credit bid up to the full amount of (i) the Reimbursable Expenses and (ii) the Break-Up Fee;

(viii) the Auction shall continue until the Debtors determine, in consultation with the Committee and the DIP Lenders, that a Qualified Bid or an Overbid, as applicable, is the highest or otherwise best offer from among the Qualified Bids (including Overbids and the last bid of the Stalking Horse Buyer) (the “Prevailing Bid,” and the party or parties that submitted such Prevailing Bid, the “Prevailing Purchaser”), which determination shall be subject to Bankruptcy Court approval;

(ix) in selecting the Prevailing Bid, the Debtors, in consultation with the Committee and the DIP Lenders, may consider all factors, including the amount of the purchase price, the form and total amount of consideration being offered, the likelihood of each Qualified Bidder’s ability to close a transaction and the timing thereof, the form and substance of the purchase agreement requested by each Qualified Bidder, and the net benefit to the Debtors’ estates; and

(xi) the Debtors shall have the ability to decide, at any point prior to the conclusion of the Auction (upon consultation with the Committee and the DIP Lenders), that they are not selling the Acquired Equity Interests; provided that, for the avoidance of doubt, the Stalking Horse Buyer shall retain its rights and remedies to the extent set forth in the Stalking Horse Agreement in the event that the Debtors decide that they are not selling the Acquired Equity Interests.

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7. Sale Hearing

The Prevailing Bid, and the consummation of the transactions contemplated thereby, will be subject to approval by the Bankruptcy Court. The hearing to approve the sale of the Acquired Equity Interests to the Prevailing Purchaser in accordance with the Prevailing Bid (the “Sale Hearing”) is scheduled to take place on August 11, 2016 at 10:00 a.m. (EST) before the Honorable Stuart M. Bernstein, at the United States Bankruptcy Court for the Southern District of New York, One Bowling Green, New York, NY 10004, or at such times thereafter as counsel may be heard. The Sale Hearing may be adjourned from time to time by the Debtors (in consultation with the Committee) without further notice to any other party in interest other than by announcement of the adjournment in open court on the date scheduled for the Sale Hearing or a notice filed with the Bankruptcy Court; provided that, for the avoidance of doubt, the Stalking Horse Buyer shall retain its rights and remedies to the extent set forth in the Stalking Horse Agreement in the event that the Debtors decide to adjourn the Sale Hearing. Unless otherwise required pursuant to the Debtors’ fiduciary duties, the Debtors shall not consider any bids submitted after the conclusion of the Auction.

8. Failure to Consummate Prevailing Bid by the Prevailing Purchaser

If an Auction is conducted, the party with the Qualified Bid or Overbid that is next highest or otherwise best to the Prevailing Bid at the Auction, as determined by the Debtors in consultation with the Committee and the DIP Lenders, shall be required to serve as a back-up bidder (a “Back-Up Bid” and a “Back-Up Bidder,” respectively) and keep such bid open and irrevocable until 11:59 p.m. (EST) on the date that is the earlier of (a) forty-five (45) days after the date of the Sale Hearing, and (b) the closing of the sale transaction with the Prevailing Purchaser. Notwithstanding anything to the contrary herein, the Stalking Horse Buyer shall have the right to determine in its sole discretion whether it will serve as the Back-Up Bidder and on what terms, if any. If the Stalking Horse Buyer does not serve as the Back-Up Bidder, the Debtors, in consultation with the Committee and the DIP Lenders, shall have the right to select the next highest or otherwise best bidder after the Prevailing Bidder at the Auction (other than the Stalking Horse Buyer) as the Back-Up Bidder.

Following the Sale Hearing, if the Prevailing Purchaser fails to consummate a sale in accordance with the Prevailing Bid because of a breach or failure to perform on the part of such Prevailing Purchaser, the Debtors (in consultation with the Committee) are authorized to deem a Back-Up Bidder (or the Stalking Horse Buyer, if the Stalking Horse Agreement, as may be modified by agreement of the Seller and Buyer, then constitutes the highest or otherwise best bid) to be the new “Prevailing Purchaser” and such party’s Back-Up Bid (or the aforementioned Stalking Horse Agreement bid, if applicable) to be the “Prevailing Bid,” and the Debtors are authorized, but not required, to consummate a sale with such Back-Up Bidder in accordance with such Back-Up Bid (or with the Stalking Horse Buyer in accordance with such Stalking Horse Agreement, as applicable) without further order of the Bankruptcy Court. In such case, (a) the defaulting Prevailing Purchaser’s deposit, if any, shall be forfeited to the Debtors, and (b) all

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parties in interest, and the Debtors specifically, reserve the right to seek all available damages from the defaulting Prevailing Purchaser.

Except as otherwise provided herein, all deposits shall be returned to each bidder not selected by the Debtors as the Prevailing Purchaser or a Back-Up Bidder by no later than the fifth (5th) business day following the conclusion of the Sale Hearing. The deposit of a Back-Up Bidder shall be held by the Debtors until the earliest of two (2) business days after (a) forty-five (45) days after the date of the Sale Hearing; and (b) the closing of the Prevailing Bid with the Prevailing Purchaser.

9. Status of Stalking Horse Agreement

Notwithstanding anything in these Bidding Procedures to the contrary, the Stalking Horse Agreement and related transaction documents (including, without limitation, as modified by any Overbid) shall remain in full force and effect until such agreements have terminated in accordance with their respective terms.

10. Consultation Rights

For the avoidance of doubt, the granting of consultation rights to the Committee and DIP Lenders shall not impair or otherwise affect the rights of such Committee or DIP Lenders to object to the decisions or actions of the Debtors and their advisors made in connection with these Bidding Procedures. If a member of the Committee submits a Qualified Bid, the Committee will continue to have the consultation rights set forth herein; provided that the Committee shall exclude such member from any discussions or deliberations regarding the sale of the Acquired Equity Interests and shall not provide any confidential information regarding the sale or provided pursuant to these Bidding Procedures to such member.

Notwithstanding anything to the contrary herein, all rights, claims, interests, benefits, and other protections of the lenders and, as applicable, their respective affiliates, assignees, designees, or partners in their capacities as “DIP Secured Parties” under (a) and as defined in, the Final DIP Order (I) Authorizing Debtors to (A) Obtain Senior Secured, Superpriority, Postpetition Financing Pursuant to Bankruptcy Code Sections 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1), and 364(e) and (B) Utilize Cash Collateral Pursuant to Bankruptcy Code Section 363, and (II) Granting Adequate Protection to Prepetition Secured Parties Pursuant to Bankruptcy Code Sections 361, 363, 363 and 364 entered by the Bankruptcy Court on June 9, 2016 [Docket No. 523] (the “DIP Financing Order”), (b) the Senior Secured Superpriority Debtor-in-Possession Credit Agreement, dated as of April 26, 2016, among SunEdison, Inc., as Borrower, Deutsche Bank AG New York Branch, as Administrative Agent, Deutsche Bank Securities Inc., Barclays Bank PLC, Apollo Credit Opportunity Fund III AIV I LP, Goldman Sachs Bank USA and Macquarie Capital (USA) Inc., as Joint Lead Arrangers and Joint Bookrunners, Wells Fargo Bank, National Association, Royal Bank of Canada, and KeyBank National Association, as L/C Issuers, and the lenders from time to time party thereto (as amended, restated, supplemented or otherwise modified from time to time, the “DIP Credit 10

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Agreement”) and the other DIP Loan Documents (as defined in the DIP Financing Orders), (c) the Bankruptcy Code, and (d) other applicable law, in each case, shall be fully preserved and not limited or otherwise impaired in any respect by these Bidding Procedures.

11. Reservation of Rights; Consent to Jurisdiction

Notwithstanding anything to the contrary in these Bidding Procedures, the Debtors reserve their rights, as they may determine to be in the best interest of their estates and in the exercise of their fiduciary obligations after consultation with the Committee, to: (a) modify the Bidding Procedures or impose, at or prior to the Auction, different and/or additional terms and conditions on the sale of the Acquired Equity Interests, (b) announce at the Auction additional procedural rules that are reasonable under the circumstances for conducting the Auction, (c) determine which bidders are Qualified Bidders, (d) determine which bids qualify as Qualified Bids and Overbids, (e) determine which Qualified Bid is the highest or otherwise best proposal and which is the next highest or otherwise best proposal, (f) determine whether to accept any Qualified Bid or Overbid (other than the Stalking Horse Agreement and any Overbid made by the Stalking Horse Buyer), (g) reject any bid that is (i) inadequate or insufficient, (ii) not in conformity with the requirements of the Bidding Procedures, the Bidding Procedures Order or the requirements of the Bankruptcy Code, or (iii) contrary to the best interests of the Debtors and their estates, and (h) extend the deadlines set forth herein; provided, however, that (i) nothing in these Bidding Procedures shall, or shall be construed to, in any way amend, impair, alter or otherwise modify the terms of the Stalking Horse Agreement (as may be modified by any Overbid) or the Stalking Horse Buyer’s rights thereunder; and (ii) without the prior written consent of the Stalking Horse Buyer, the Debtors shall not modify, or waive compliance (or accept non-compliance) with, any of the following: (A) subsections (c), (d) or (l) of the requirements of a Qualified Bid specified herein; (B) subsection (b) of the requirements of an Overbid specified herein; (C) the right of the Stalking Horse Buyer to credit bid up to the full amount of the Reimbursable Expenses and Break-Up Fee; (D) the right of the Stalking Horse Buyer to determine in its sole discretion whether it will serve as the Back-Up Bidder and on what terms; or (E) this clause (ii) or the immediately preceding clause (i).

The Stalking Horse Buyer, all other Qualified Bidders, and all parties submitting a bid (whether or not constituting a Qualified Bid) shall be deemed to have consented to the core jurisdiction of the Bankruptcy Court to enter an order or orders, which shall be binding in all respects, in any way related to the Seller and its assets, and have waived any right to a jury trial in connection with any disputes relating to the Seller, the Chapter 11 Cases, the Bidding Procedures, the Bidding Procedures Order, the order approving the Prevailing Bid, the Stalking Horse Agreement, the Auction, or the construction and enforcement of the Stalking Horse Agreement or any Bidder Agreement.

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EXHIBIT D

[INTENTIONALLY OMITTED]

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EXHIBIT E

FORM OF ESCROW AGREEMENT

[See attached]

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ESCROW AGREEMENT

This ESCROW AGREEMENT (this “Agreement”) is executed and effective on [______], 2016 (the “Effective Date”), by and among DESRI MS2 Development, L.L.C., a Delaware limited liability company (“Buyer”), First Wind California Holdings, LLC, a Delaware limited liability company (“Seller”, and together with the Buyer, collectively, the “Escrow Parties”), and JPMorgan Chase Bank, N.A., as escrow agent (the “Escrow Agent”).

WHEREAS, the Escrow Parties are parties to the Purchase and Sale Agreement, by and among SunEdison, Inc., a Delaware corporation, Seller and Buyer, dated as of [___], 2016 (as such agreement may be amended, restated or otherwise modified from time to time, the “Purchase Agreement”). Capitalized terms used in this Agreement and not otherwise defined herein shall have the respective meanings given to them in the Purchase Agreement; provided however, that it is understood and agreed that the Escrow Agent shall have no knowledge of, nor have any obligation to understand or ascertain the meaning of any term not defined within this Agreement.

WHEREAS, in accordance with Section 2.01(c)(ii)of the Purchase Agreement, at the Closing, Buyer will deposit, or cause to be deposited, into an account (the “Escrow Account”) the amount of $2,500,000 (the “Escrow Amount”). At any time, the portion of the Escrow Amount then remaining in the Escrow Account plus any Escrow Income (as defined below) earned hereunder pursuant to this Agreement are referred to collectively as the “Escrow Funds”.

WHEREAS, the Escrow Agent has agreed to serve in the capacity set forth herein on the terms and subject to the conditions of this Agreement.

NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency whereof is hereby acknowledged, the parties hereto agree as follows:

1. Appointment of and Acceptance by Escrow Agent. Buyer and Seller hereby jointly appoint and designate the Escrow Agent to maintain possession of the Escrow Funds and to act as escrow agent for the purposes set forth herein, and the Escrow Agent hereby accepts such appointment and designation under the terms and conditions set forth herein.

2. Receipt of Deposit; Establishment of Escrow; Interest.

(a) Buyer will deliver to the Escrow Agent on the Effective Date, and the Escrow Agent will acknowledge to Buyer and Seller via email of its receipt of, the Escrow Amount. The Escrow Agent shall hold, invest and disburse the Escrow Funds in accordance with the terms of this Agreement. Except with respect to amounts otherwise released pursuant to this Agreement, until the termination of this Agreement and the distribution of the Escrow Funds in full, Buyer and Seller agree that they shall not transfer or attempt to transfer the Escrow Funds or any beneficial interest they may have in the Escrow Account, Escrow Funds or this Agreement. Any attempt to make any such transfer shall be null and void ab initio.

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(b) Other than as set forth in Section 4(b), in the absence of joint written direction from the Escrow Parties to the contrary, all income interest, dividends, distributions, increments, gains or other earnings on or in respect of the Escrow Account (collectively, the “Escrow Income”) shall become part of the Escrow Funds and shall be held in the Escrow Account and reinvested from time to time by the Escrow Agent as provided in this Agreement.

3. Investment of the Escrow Funds. During the term of this Agreement, the Escrow Funds shall be held in one or more demand deposit accounts and shall be invested in a JPMorgan Chase Bank, N.A. money market deposit account (“MMDA”) or a successor investment offered by Escrow Agent. The Parties recognize and agree that instructions to make any other investment (“Alternative Investment”), and any instruction to change investments must be in a joint writing executed by an Authorized Representative (as defined in Section 3 below), of the Buyer and Seller and shall specify the type and identity of the investments to be purchased and/or sold. The Escrow Agent is hereby authorized to execute purchases and sales of investments through the facilities of its own trading or capital markets operations or those of any affiliated entity and the Escrow Agent or any affiliated entity may act as counterparty with respect to such investments. MMDAs have rates of compensation that may vary from time to time as determined by the Escrow Agent. The Escrow Agent is hereby authorized to execute the purchase and sale of Alternative Investments through the facilities of its own trading or capital markets operations or those of an affiliated entity and the Escrow Agent or any affiliated entity may act as counterparty with respect to such investments. The Escrow Agent or any of its affiliates may receive compensation netted from any direct investment made pursuant to the terms of this Agreement, including without limitation, charging any applicable agency fee or trade execution fee in connection with each transaction. Market values, exchange rates and other valuation information (including, without limitation, market value, current value or notional value) of any Alternative Investments furnished in any report or statement may be obtained from third party sources and is furnished for the exclusive use of the Escrow Parties. The Escrow Agent has no responsibility whatsoever to determine the market or other value of any Alternative Investments and makes no representation or warranty, express or implied, as to the accuracy of any such valuations or that any values necessarily reflect the proceeds that may be received on the sale of an Alternative Investment. The Escrow Parties recognize and agree that the Escrow Agent will not provide supervision, recommendations or advice relating to either the investment of moneys held in the Escrow Account or the purchase, sale, retention or other disposition of any investment described herein. The Escrow Agent shall have the right to liquidate the MMDA and/or any Alternative Investment in order to comply with disbursement instructions without any liability for any resulting loss. Any loss incurred from an Alternative Investment will be borne by the Escrow Funds. The Escrow Agent will provide a written statement to each Escrow Party at the end of each month prior to the termination of this Agreement pursuant to Section 17 listing the balance of the Escrow Account and detailing any transactions or disbursements during the immediately preceding month. The Escrow Agent shall not have any liability for any loss sustained as a result of making any Alternative Investment pursuant to the terms of this Agreement or as a result of any liquidation of any investment prior to its maturity or for the failure of the Escrow Parties to give the Escrow Agent instructions to invest or reinvest the Escrow Funds.

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4. Taxes.

(a) Solely for tax purposes, all Escrow Income shall be allocated to Seller and reported, as and to the extent required by law, by the Escrow Agent to the IRS, or any other applicable taxing authority, on IRS Form 1099 and/or 1042-S (or other appropriate form) as income earned from the amounts in the Escrow Account by Seller whether or not such Escrow Income has been distributed during such year. For the avoidance of doubt, the Escrow Agent shall file IRS Form 1099 or 1042-S (or other appropriate form) with the IRS or any other taxing authority, as required under applicable law, and shall provide copies of such forms to Buyer and Seller, unless otherwise required by applicable law. Seller and Buyer acknowledge and agree that any taxes payable with respect to the Escrow Income shall be paid by Seller. Any other tax returns required to be filed will be prepared and filed by Seller with the IRS and any other taxing authority as required by law. The Escrow Parties acknowledge and agree that Escrow Agent shall have no responsibility for the preparation and/or filing of any income, franchise or any other tax return with respect to the Escrow Account or any Escrow Income. The Escrow Agent shall withhold any taxes it deems appropriate, including but not limited to required withholdings in the absence of proper tax documentation, and shall remit such taxes to the appropriate authorities. The Parties hereby represent to the Escrow Agent that no other tax reporting of any kind is required given the underlying transaction giving rise to this Agreement.

(b) In order to facilitate the payment of taxes owed by Seller in respect of Escrow Income, by January 31st of each calendar year, without written instructions from any of the Escrow Parties, the Escrow Agent shall release an amount of cash from the Escrow Funds to Seller using the wiring instructions set forth in Section 8(c), equal to forty-five percent (45%) of any Escrow Income reported to Seller pursuant to clause (a) above with respect to the prior calendar year, as applicable.

5. Disbursement.

(a) Subject to Section 4(b) above and Section 5(b), the Escrow Agent shall disburse the Escrow Funds, or any portion thereof, only in accordance with the joint written instructions of an Authorized Representative of each of the Escrow Parties. Each of Buyer and Seller agrees to prepare and sign joint written instructions that direct the Escrow Agent to distribute the Escrow Funds, or a portion thereof, as promptly as practicable after payments from the Escrow Account are due and payable pursuant to and in accordance with the terms of the Purchase Agreement. Each of Buyer and Seller agrees that any such joint written instructions shall set forth sufficient payment instructions for each portion of the Escrow Funds to be distributed from the Escrow Account and that the Escrow Agent shall act solely upon the instructions that it receives and shall not be responsible for determining whether the instructions are in accordance with the terms of the Purchase Agreement.

(b) The Escrow Agent shall also disburse Escrow Funds after receipt of a final, non-appealable judgment, decree or order of a court or other authority of competent jurisdiction (“Court Order”), accompanied by a certificate of such Escrow Party to the effect that such Court Order is final along with written instructions from an Authorized Representative of the instructing Escrow Party given to effectuate such judgment, decree or order, requiring the payment of money in accordance with the terms of the Purchase Agreement presented by one of

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the Escrow Parties. The Escrow Agent shall be entitled to conclusively rely upon any such certificate and instruction and shall have no responsibility to review the order to which the certificate and instructions refers or to make any determination as to whether such order is final. The Escrow Party submitting any such advice and instruction to the Escrow Agent shall provide the other Escrow Party with five (5) days prior written notice of its intent to make such a submission to the Escrow Agent. Escrow Agent may conclusively presume that such prior delivery has occurred without any requirement to verify or confirm same.

6. Liability and Duties of the Escrow Agent. The Escrow Agent’s duties and obligations under this Agreement shall be determined solely by the express provisions of this Agreement which shall be deemed purely ministerial in nature, and no other duties, including, but not limited to, any fiduciary duty, shall be implied. The Escrow Agent shall be under no obligation to refer to any documents other than this Agreement (and, to the extent expressly referenced in this Agreement, the Purchase Agreement) and the instructions and requests delivered to the Escrow Agent hereunder. The Escrow Agent shall not be obligated to recognize, and shall not have any liability or responsibility arising under, any agreement to which the Escrow Agent is not a party, even though reference thereto may be made herein. Notwithstanding the terms of any other agreement between the Escrow Parties, the terms and conditions of this Agreement shall control the actions of Escrow Agent. With respect to the Escrow Agent’s responsibility, the Escrow Parties further agree that:

(a) The Escrow Agent, including its officers, directors, employees and agents, shall not be liable to anyone whomsoever by reason of any error of judgment or for any act done or step taken or omitted by the Escrow Agent in good faith, or for any mistake of fact or law or anything which the Escrow Agent may do or refrain from doing in connection herewith except to the extent that a final adjudication of a court of competent jurisdiction determines that the Escrow Agent’s bad faith, gross negligence, willful misconduct or fraud was the primary cause of any direct loss to either Escrow Party. The Escrow Agent may execute any of its powers and perform any of its duties hereunder directly or through affiliates or agents. The Escrow Agent may consult with counsel reasonably selected by it and shall have full and complete authorization and protection for any action taken or suffered by the Escrow Agent hereunder in accordance with the opinion of such counsel. The Escrow Parties agree jointly and severally to indemnify, defend and hold the Escrow Agent and its affiliates and their respective successors, assigns, directors, officers, managers, attorneys, accountants, experts, agents and employees (the “Indemnitees”) harmless from and against any and all liability losses, damages, claims, liabilities, penalties, judgments, settlements, actions, suits, proceedings, litigation, investigations, costs or expenses (including, without limitation, the reasonable and documented fees and expenses of outside counsel and experts and all expense of document location, duplication and shipment) (collectively, “Losses”) which may arise out of or in connection with (a) the Escrow Agent’s execution and performance of this Agreement, tax reporting or withholding, the enforcement of any rights or remedies under or in connection with this Agreement, or as may arise by reason of any act, omission or error of the Indemnitee, except to the extent that such Losses are finally adjudicated by a court of competent jurisdiction to be or have been primarily caused by the bad faith, gross negligence, willful misconduct or fraud of such Indemnitee or (b) its following any joint instructions or other directions from the Escrow Parties, except to the extent that its following any such instruction or direction is expressly forbidden by the terms hereof; provided that, as between the Escrow Parties, all amounts for which they are jointly and

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severally liable pursuant to the foregoing sentence are intended to be split equally between the two of them and, in the event that either Escrow Party in the first instance pays more than fifty percent (50%) of any such joint and several obligation, such Escrow Party shall have a right of contribution from the other Escrow Party for such amount as will result in an equal split of such joint and several obligation; provided, further, that nothing in the foregoing proviso shall prevent Buyer or Seller, as applicable, from seeking indemnification under the Purchase Agreement for any amounts paid as contribution or indemnification under this Escrow Agreement. The Escrow Parties hereby grant the Escrow Agent a lien on, right of set-off against and security interest in the Escrow Fund for the payment of any claim for indemnification, fees, expenses and amounts due to the Escrow Agent or an Indemnitee. Such indemnification shall survive the Escrow Agent’s resignation, replacement or removal, or the termination of this Agreement.

(b) Each of Buyer and Seller may examine the Escrow Account and the records pertaining thereto at any time during normal business hours at the Escrow Agent’s office upon twenty-four (24) hours prior notice and pursuant to the reasonable regulations of the Escrow Agent. The Escrow Agent shall provide Buyer and Seller with monthly statements showing the Escrow Income and disbursements, if any, of the Escrow Account.

(c) This Agreement is a personal one, and the Escrow Agent’s duties hereunder are only to the Escrow Parties, their successors, permitted assigns, heirs and legal representatives, and to no other person whomsoever.

(d) No succession to, or assignment of, the interest of the Escrow Parties shall be binding upon the Escrow Agent unless and until written notice of such succession or assignment has been given to the Escrow Agent in accordance with Section 9 and consented to by the Escrow Agent, which consent shall not be unreasonably withheld or delayed.

(e) The Escrow Agent may assume that any Authorized Representative purporting to give any notice in accordance with the provisions hereof has been duly authorized to do so. The Escrow Agent may rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed by the proper Authorized Representative of the Escrow Party without inquiry and without requiring substantiating evidence of any kind. The Escrow Agent shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Escrow Agent shall have no duty to solicit any payments which may be due to it or the Escrow Account.

(f) In case any property held by the Escrow Agent shall be attached, garnished or levied upon under a court order, or the delivery thereof shall be stayed or enjoined by a court order, or any writ, order, judgment or decree shall be made or entered by any court affecting the property deposited under this Agreement or any part thereof, the Escrow Agent is hereby expressly authorized, in its sole discretion, to obey and comply with all writs, orders, judgments or decrees so entered or issued, and in case the Escrow Agent obeys or complies with any such writ, order, judgment or decree, the Escrow Agent shall not be liable to the Escrow Parties or to any other person by reason of such compliance in connection with such litigation notwithstanding such writ, order or decree be subsequently reversed, modified, annulled, set aside or vacated.

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(g) The Escrow Agent reserves the right to resign at any time by giving at least thirty (30) days prior written notice of resignation to the Escrow Parties specifying the effective date thereof. Within thirty (30) days after receiving such notice, an Authorized Representative of each of the Escrow Parties jointly shall appoint a successor escrow agent to which the Escrow Agent shall distribute all of the remaining Escrow Funds and any information and/or documents relating to the Escrow Account then held under this Agreement, whereupon the Escrow Agent shall, upon such distribution to a successor escrow agent, be discharged of and from any and all further obligations arising in connection with this Agreement, except for such liability and expenses which result from the Escrow Agent’s bad faith, gross negligence, willful misconduct or fraud. If a successor escrow agent has not been appointed or has not accepted such appointment by the end of such thirty (30) day period, the Escrow Agent may either (i) interplead the Escrow Funds with a court of competent jurisdiction or (ii) appoint a successor escrow agent of its own choice, and the costs, expenses and reasonable attorney’s fees which are incurred in connection with such proceeding shall be paid one half by each of Buyer and Seller. Any appointment of a successor escrow agent shall be binding on the Escrow Parties and no appointed successor escrow agent shall be deemed to be an agent of the Escrow Agent. Until a successor escrow agent has accepted such appointment and the Escrow Agent has transferred the Escrow Account to such successor escrow agent, the Escrow Agent’s sole responsibility after such thirty (30)-day notice period expires shall be to hold the Escrow Account (without any obligation to reinvest the same) and to deliver the Escrow Account to a designated substitute escrow agent, if any, in accordance with (A) a joint written instruction by an Authorized Representative of each of the Escrow Parties, or (B) a final non-appealable order of a court of competent jurisdiction (it being understood that the Escrow Agent shall be entitled conclusively to rely and act upon any such court order and shall have no obligation to determine whether any such court order is final).

(h) In the event of any disagreement between Buyer and Seller resulting in adverse claims or demands being made in connection with the Escrow Account or in the event that the Escrow Agent is in doubt as to what action it should take hereunder, the Escrow Agent shall be entitled to refrain from taking any action until such time as the Escrow Agent shall have received (i) a final non-appealable order of a court of competent jurisdiction or a nationally- recognized, independent accounting firm agreed upon by Buyer and Seller) that is accompanied by written advice of the Escrow Parties’ respective counsel that such order is final and non- appealable (it being understood that the Escrow Agent shall be entitled conclusively to rely and act upon any such order and shall have no obligation to determine whether any such order is final) as well as written instructions executed by an Authorized Representative of the instructing Escrow Party directing delivery of the Escrow Account, or any portion thereof, as applicable, consistent with such order, or (ii) a joint written instruction executed by an Authorized Representative of each of the Escrow Parties directing delivery of the Escrow Account, at which time the Escrow Agent shall disburse the Escrow Account in accordance with such determination or joint written instruction.

(i) The Escrow Agent does not have any interest in the Escrow Account but is serving as escrow holder only and has only possession thereof. If any payments of income from the Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes, Buyer and Seller agree to provide the Escrow Agent with appropriate forms

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for or with respect to such withholding. This Section 6(i) shall survive notwithstanding any termination of this Agreement or the Escrow Agent’s resignation or removal.

(j) Buyer and Seller may, upon at least thirty (30) days prior written notice executed by their respective Authorized Representatives delivered to the Escrow Agent, dismiss the Escrow Agent and appoint a successor escrow agent. In such event, the Escrow Agent will promptly account for and deliver to the successor escrow agent named in such notice all of the remaining Escrow Funds and any information and/or documents relating to the Escrow Account then held by the Escrow Agent hereunder. Upon acceptance thereof and of such accounting by such successor escrow agent, and upon reimbursement to the Escrow Agent of all expenses due to it hereunder through the date of such accounting and delivery in accordance with the terms hereof, the Escrow Agent will be discharged of and from any and all further obligations arising in connection with this Agreement, except for such liability and expenses which result from the Escrow Agent’s bad faith, gross negligence, willful misconduct or fraud.

7. Compensation of Escrow Agent. The Escrow Agent shall be entitled to fees and reimbursement for expenses, along with any fees or charges for accounts, including those levied by any governmental authority which the Escrow Agent may impose, charge or pass-through, including, but not limited to, the reasonable and documented fees and costs of attorneys or agents which it may find necessary to engage in the performance of its duties hereunder, in each case in accordance with the fee schedule attached hereto as Exhibit A. Such fees and expenses shall be paid when due and payable (one half by Buyer and one half by Seller and shall not be prorated for partial years. Each of the Escrow Parties further agrees to the disclosures and agreements set forth in Exhibit A. Any obligation of the Escrow Parties incurred pursuant to this Section 7 prior to the termination of this Agreement or the resignation or removal of the Escrow Agent shall survive notwithstanding such termination, resignation or removal.

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8. Funds Transfer Agreement.

(a) Any instructions setting forth, claiming, containing, objecting to, or in any way related to the transfer or distribution of the Escrow Funds must be in writing or set forth in a Portable Document Format (“PDF”), executed by the appropriate Escrow Party or Escrow Parties, as evidenced by the signatures of the person or persons signing this Agreement or one of their designated persons as set forth on Schedule I (each, an “Authorized Representative”), and delivered to the Escrow Agent only by confirmed facsimile or confirmed email on a Business Day only at the facsimile number or email address set forth in Section 9. No instruction for or related to the transfer or distribution of the Escrow Funds, or any portion thereof, shall be deemed delivered and effective unless the Escrow Agent actually shall have received such instruction on a Business Day by facsimile or as a PDF attached to an email only at the facsimile number or email address provided to the Escrow Parties by the Escrow Agent in accordance with Section 9 and as further evidenced by a confirmed transmittal to that number or email address and provided that the Escrow Agent has been able to satisfy any applicable security procedures as may be required hereunder. The Escrow Agent shall not be liable to any Escrow Party or other person for refraining from acting upon any instruction for or related to the transfer or distribution of the Escrow Funds if delivered to any other facsimile number or email address, including, but not limited to, a valid email address of any employee of the Escrow Agent.

(b) In the event funds transfer instructions are given in writing in accordance with Section 8(a), the Escrow Agent is authorized to seek confirmation of such instructions by a single telephone call-back to an Authorized Representative of the applicable Escrow Party and the Escrow Agent may rely upon the confirmations of anyone purporting to be one of the Authorized Representatives. The persons and telephone numbers for call-backs may be changed only in a writing by an Authorized Representative of the applicable Escrow Party and actually received by the Escrow Agent via facsimile or a PDF attached to an email. Except as set forth in Section 8(c) or Section 8(d) below, no funds will be disbursed until an Authorized Representative (or an Executive Officer in accordance with this Section 8(b)) is able to confirm such instructions by telephone call-back. It is understood that the Escrow Agent, any intermediary bank and the beneficiary’s bank in any funds transfer may rely upon any identifying number of the beneficiary’s bank or any intermediary bank included in any funds transfer instruction provided by any Escrow Party hereto and confirmed by an Authorized Representative. Further, the beneficiary’s bank in the funds transfer instruction may make payment on the basis of the account number provided in such Escrow Party’s confirmed instruction even though it identifies a person different from the named.

(c) Seller acknowledges that the Escrow Agent is authorized to use the following funds transfer instructions to disburse any funds due to Seller under this Agreement without a verifying call-back as set forth in Section 8(b) above, unless otherwise instructed by Seller to the Escrow Agent in a prior written notice:

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Seller’s bank account information: Bank Name: Bank Address: ABA Number: Account Name: Account Number: Reference:

(d) Parties acknowledge that the Escrow Agent is authorized to use the following funds transfer instructions to disburse any funds due to Buyer under this Agreement without a verifying call-back as set forth in Section 8(b) above, unless otherwise jointly instructed by the Parties to the Escrow Agent in a prior written notice:

Buyer’s bank account information: Bank Name: Bank Address: ABA Number: Account Name: Account Number:

(e) The Escrow Parties acknowledge that the security procedures set forth in this Section 8 are commercially reasonable.

(f) The Escrow Parties acknowledge that there are certain security, corruption, transmission error and access availability risks associated with using open networks such as the Internet and the Escrow Parties hereby expressly assume such risks.

9. Notices. Except as set forth and required by Section 8(a) above, all communications hereunder shall be in writing or set forth in a PDF attached to an email, and all instructions from an Escrow Party or the Escrow Parties to the Escrow Agent shall be executed by an Authorized Representative and shall be executed and delivered with the terms of this Agreement by facsimile, email or via a nationally recognized overnight courier. Notice will be effective when dispatched if delivered by fax or by email or on receipt of delivery by overnight courier service., only to the appropriate fax number, email address, or notice address set forth for each party as follows:

Notices to Seller:

First Wind California Holdings, LLC 13736 Riverport Drive, Suite 180 Maryland Heights, MO 63043 Attention: General Counsel Facsimile: (866) 773-0791 E-mail: [email protected]

with a copy (which shall not constitute notices to Seller) to:

Skadden, Arps, Slate, Meagher & Flom LLP

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1440 New York Avenue, N.W. Washington, DC 20005 Attention: Eric Ivester, Paul Kraske and Jeremy London Fax: (202) 393-5760 Email: [email protected] [email protected] [email protected]

Notices to Buyer:

c/o D. E. Shaw Renewable Investments, L.L.C. 1166 Avenue of the Americas, 6th Floor New York, NY 10036 Attention: General Counsel Fax: (212) 478-0100 Email: [ ]

with a copy (which shall not constitute notice to Buyer) to:

Latham & Watkins LLP 555 Eleventh Street, N.W. Suite 1000 Washington, DC 20004 Attention: John Sachs, Eli Hunt and Peter Knight Facsimile: (202) 637 2201 (John Sachs), (312) 993-9767 (Peter Knight), (212) 906-1354 (Eli Hunt) E-mail: [email protected], [email protected] and [email protected]

Notices to the Escrow Agent:

JPMorgan Chase Bank N.A. Escrow Services 4 New York Plaza, 11th Floor New York, New York 10004 Attn: Donna Fitzsimmons/Natalie Pesce Fax: 212-552-2812 Phone: 212-552-2555 Email: [email protected]

Any party may change the address to which notices are to be delivered by giving the other parties notice in the manner provided in this Section 9. Notwithstanding the above, in the case of communications delivered to the Escrow Agent pursuant to this Section 9, such communications shall be deemed to have been given on the date received by those representatives of the Escrow Agent listed in this Section 9 or any employee of the Escrow Agent who reports directly to such above-referenced Escrow Agent representative listed in this

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Section 9. In the event that the Escrow Agent, in its sole discretion, shall determine that an emergency exists, the Escrow Agent may use such other means of communication as the Escrow Agent deems appropriate. “Business Day” shall mean any day other than Saturday, Sunday or any other day on which the Escrow Agent located at the notice address set forth above is authorized or required by law or executive order to remain closed.

10. Binding Effect; Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned, in whole or in part, by the Escrow Agent, Buyer or Seller, without the prior written consent of the other parties. Any assignment in violation of this Section 10 will be void and of no effect. Subject to the preceding two sentences, this Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

11. Severability. If any term or provision of this Agreement is held to be illegal, invalid, or incapable of being enforced by any rule of law or public policy, such provision shall be fully severable and all other terms and provisions of this Agreement will remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, this Agreement will be modified so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

12. No Strict Construction. Each of the parties hereto acknowledges that this Agreement has been prepared jointly by the parties hereto and will not be strictly construed against any other party.

13. Headings. The headings used in this Agreement are for convenience of reference only and do not constitute a part of this Agreement and will not be deemed to limit, define, extend or describe the scope of this Agreement or otherwise affect the meaning or interpretation of this Agreement.

14. Counterparts. This Agreement may be executed and delivered (including by facsimile transmission) in two or more counterparts, each of which will be deemed an original, and all of which together will constitute one and the same agreement and will become effective when such counterparts have been signed by each of the parties and delivered to the other parties. Facsimile or PDF signatures set forth in an email will have the same legal effect as manual signatures.

15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

16. Amendment. This Agreement may not be amended or modified, except by an instrument in writing executed by the Escrow Parties and the Escrow Agent.

17. Termination. This Agreement shall remain in effect unless and until (i) the Escrow Account is distributed in full or (ii) this Agreement is terminated in a written instrument

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executed by the Escrow Parties, in which event, termination shall take effect no later than twenty (20) days after notice to the Escrow Agent of such termination. Termination of this Agreement shall not impair the obligations of the Escrow Parties set forth in Sections 6(a), 6(i), 7, 9, 15, 21, 22, 23 and 24, which obligations, together with this Section 17, shall survive the termination of this Agreement.

18. Merger or Consolidation. Any banking association or corporation into which the Escrow Agent may be merged, converted or with which the Escrow Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party, or any banking association or corporation to which all or substantially all of the escrow business of the Escrow Agent shall be sold or otherwise transferred, shall succeed to all the Escrow Agent’s rights, obligations and immunities hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.

19. Entire Agreement. This Agreement and, solely with respect to the Escrow Parties, the Purchase Agreement, constitute the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter of this Agreement.

20. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and assigns and nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors and assigns, any legal or equitable rights or remedies hereunder.

21. Waiver of Jury Trial. Each of the parties hereto waives any right it may have to trial by jury in respect of any litigation based on, arising out of, under or in connection with this Agreement or any course of conduct, course of dealing, verbal or written statement or action of any party hereto.

22. Jurisdiction. Each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the state and federal courts of the State of New York (a “New York Court”) in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (c) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any other court; provided that a final judgment obtained from any New York Court may be enforced in any court having jurisdiction over a party or its assets. To the extent that in any jurisdiction either Escrow Party may now or hereafter be entitled to claim for itself or its assets, immunity from suit, execution attachment (before or after judgment), or other legal process, such Escrow Party shall not claim, and it hereby irrevocably waives, such immunity.

23. Remedies. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one (1) remedy will not preclude the exercise of any other remedy.

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24. Limited Liability. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.

25. Force Majeure. Notwithstanding any other provision of this Agreement, the Escrow Agent shall not be obligated to perform any obligation hereunder and shall not incur any liability for the nonperformance of any obligation hereunder to the extent that the Escrow Agent is delayed in performing, unable to perform such obligation because of acts of god, war, terrorism, fire, floods, strikes, electrical outages, equipment or transmission failures, or other causes beyond its control.

26. Information. The Escrow Parties authorize the Escrow Agent to disclose information with respect to this Agreement and the account(s) established hereunder, the Escrow Parties, or any transaction hereunder if such disclosure is: (i) reasonably necessary or desirable, in the Escrow Agent’s opinion, for the purpose of allowing the Escrow Agent to perform its duties and to exercise its powers and rights hereunder; (ii) to a proposed assignee of the rights of Escrow Agent; (iii) to a branch, affiliate, subsidiary, employee or agent of the Escrow Agent or to their auditors, regulators or legal advisers or to any competent court; (iv) to the auditors of any of the Parties; or (v) as permitted or required by applicable law, regardless of whether the disclosure is made in the country in which either Escrow Party resides, in which the Escrow Account is maintained, or in which the transaction is conducted. The Escrow Parties agree that such disclosures by the Escrow Agent and its affiliates may be transmitted across national boundaries and through networks, including those owned by third parties.

27. If any provision of this Agreement is determined to be prohibited or unenforceable by reason of any applicable law of a jurisdiction, then such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction. The Parties each represent, warrant and covenant that (i) each document, notice, instruction or request provided by such Party to Escrow Agent shall comply with applicable laws and regulations, (ii) such Party has full power and authority to enter into, execute and deliver this Agreement and to perform all of the duties and obligations to be performed by it hereunder; and (c) the person(s) executing this Agreement on such Party’s behalf and certifying Authorized Representatives in the applicable Schedule 1 have been duly and properly authorized to do so, and each Authorized Representative of such Party has been duly and properly authorized to take the actions specified for such person in the applicable Schedule 1. Except as expressly provided in Section 6 (a) above, nothing in this Agreement, whether express or implied, shall be construed to give to any person or entity other than Escrow Agent and the Parties any legal or equitable right, remedy, interest or claim under or in respect of the Fund or this Agreement.

* * * *

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written.

BUYER:

DESRI MS2 DEVELOPMENT, L.L.C.

By: ______Name: Title:

SELLER:

FIRST WIND CALIFORNIA HOLDINGS, LLC

By: ______Name: Title:

ESCROW AGENT:

JPMORGAN CHASE BANK, N.A. (as Escrow Agent)

By: ______Name: Title:

Signature Page to Escrow Agreement 1195582.04A-WASSR02A - MSW 16-10992-smb Doc 695-3 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit C Pg 149 of 185

EXHIBIT A

SCHEDULE OF ESCROW AGENT FEES ~~~~~ Escrow Agent Services

Account Acceptance Fee ...... Waived

Encompassing review, negotiation and execution of governing documentation, opening of the account, and completion of all due diligence documentation.

One time Administration Fee ...... ……...... $2,500

The Administration Fee covers our usual and customary ministerial duties, including record keeping, distributions, document compliance and such other duties and responsibilities expressly set forth in the governing documents for each transaction. Payable at the Effective Date and, if applicable, annually in advance thereafter, without pro-ration for partial years.

Extraordinary Services and Out-of-Pocket Expenses

Any additional services beyond our standard services as specified above, and all reasonable out-of-pocket expenses including attorney’s or accountant’s fees and expenses will be considered extraordinary services for which related costs, transaction charges, and additional fees will be billed at the Escrow Agent’s then standard rate. Disbursements, receipts, investments or tax reporting exceeding 25 items per year may be treated as extraordinary services thereby incurring additional charges. The Escrow Agent may impose, charge, pass-through and modify fees and/or charges for any account established and services provided by the Escrow Agent, including but not limited to, transaction, maintenance, balance-deficiency, and service fees and other charges, including those levied by any governmental authority.

Fee Disclosure & Assumptions

• Please note that the fees quoted are based on a review of the transaction documents provided and an internal due diligence review. JPMorgan reserves the right to revise, modify, change and supplement the fees quoted herein if the assumptions underlying the activity in the account, level of balances, market volatility or conditions or other factors change from those used to set our fees.

• The escrow deposit shall be continuously invested in a JPMorgan Chase Bank money market deposit account (“MMDA”). MMDAs have rates of compensation that may vary from time to time as determined by the Escrow Agent.

• Representations Relating to Section 15B of the Securities Exchange Act of 1934 (Rule 15Ba1-1 et seq.) (the “Municipal Advisor Rule”). Each Party represents and warrants to the Escrow Agent that for purposes of the Municipal Advisor Rules, none of the funds (if any) currently invested, or that will be invested in the future, in money market funds, commercial paper or treasury bills under this Agreement constitute or contain (i)

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proceeds of municipal securities (including investment income therefrom and monies pledged or otherwise legally dedicated to serve as collateral or a source or repayment for such securities) or (ii) municipal escrow investments (as each such term is defined in the Municipal Advisor Rule). Each Party also represents and warrants to the Escrow Agent that the person providing this certification has access to the appropriate information or has direct knowledge of the source of the funds to be invested to enable the forgoing representation to be made. Further, each Party acknowledges that the Escrow Agent will rely on this representation until notified in writing otherwise.

• Patriot Act Disclosure. Section 326 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”) requires Escrow Agent to implement reasonable procedures to verify the identity of any person that opens a new account with it. Accordingly, you acknowledge that Section 326 of the USA PATRIOT Act and Escrow Agent’s identity verification procedures require Escrow Agent to obtain information which may be used to confirm your identity including without limitation name, address and organizational documents (“identifying information”). You agree to provide Escrow Agent with and consent to Escrow Agent obtaining from third parties any such identifying information required as a condition of opening an account with or using any service provided by the Escrow Agent.

OFAC Disclosure. Escrow Agent is required to act in accordance with the laws and regulations of various jurisdictions relating to the prevention of money laundering and the implementation of sanctions, including but not limited to regulations issued by the U.S. Office of Foreign Assets Control. Escrow Agent is not obligated to execute payment orders or effect any other transaction where the beneficiary or other payee is a person or entity with whom the Escrow Agent is prohibited from doing business by any law or regulation applicable to Escrow Agent, or in any case where compliance would, in Escrow Agent’s opinion, conflict with applicable law or banking practice or its own policies and procedures. Where Escrow Agent does not execute a payment order or effect a transaction for such reasons, Escrow Agent may take any action required by any law or regulation applicable to Escrow Agent including, without limitation, freezing or blocking funds. Transaction screening may result in delays in delays in the posting of transactions.

• Abandoned Property. Escrow Agent is required to act in accordance with the laws and regulations of various states relating to abandoned property and, accordingly, shall be entitled to remit dormant funds to any state as abandoned property in accordance with such laws and regulations.

• THE FOLLOWING DISCLOSURES ARE REQUIRED TO BE PROVIDED UNDER APPLICABLE U.S. REGULATIONS, INCLUDING, BUT NOT LIMITED TO, FEDERAL RESERVE REGULATION D. WHERE SPECIFIC INVESTMENTS ARE NOTED BELOW, THE DISCLOSURES APPLY ONLY TO THOSE INVESTMENTS AND NOT TO ANY OTHER INVESTMENT.

• Demand Deposit Account Disclosure. Escrow Agent is authorized, for regulatory reporting and internal accounting purposes, to divide an escrow demand deposit account maintained in the U.S. in which the Fund is held into a non-interest bearing demand deposit internal account and a non-interest bearing savings internal account, and to transfer funds on a daily basis between these internal accounts on Escrow Agent’s general ledger in accordance with

Exhibit A - 2 1195582.04A-WASSR02A - MSW 16-10992-smb Doc 695-3 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit C Pg 151 of 185

U.S. law at no cost to the Parties. Escrow Agent will record the internal accounts and any transfers between them on Escrow Agent’s books and records only. The internal accounts and any transfers between them will not affect the Fund, any investment or disposition of the Fund, use of the escrow demand deposit account or any other activities under this Agreement, except as described herein. Escrow Agent will establish a target balance for the demand deposit internal account, which may change at any time. To the extent funds in the demand deposit internal account exceed the target balance, the excess will be transferred to the savings internal account, unless the maximum number of transfers from the savings internal account for that calendar month or statement cycle has already occurred. If withdrawals from the demand deposit internal account exceeds the available balance in the demand deposit internal account, funds from the savings internal account will be transferred to the demand deposit internal account up to the entire balance of available funds in the savings internal account to cover the shortfall and to replenish any target balance that Escrow Agent has established for the demand deposit internal account. If a sixth transfer is needed during a calendar month or statement cycle, it will be for the entire balance in the savings internal account, and such funds will remain in the demand deposit internal account for the remainder of the calendar month or statement cycle.

• MMDA Disclosure and Agreement. If MMDA is the investment for the escrow deposit as set forth above or anytime in the future, you acknowledge and agree that U.S. law limits the number of pre-authorized or automatic transfers or withdrawals or telephonic/electronic instructions that can be made from an MMDA to a total of six (6) per calendar month or statement cycle or similar period. Escrow Agent is required by U.S. law to reserve the right to require at least seven (7) days’ notice prior to a withdrawal from a money market deposit account.

• Unlawful Internet Gambling. The use of any account to conduct transactions (including, without limitation, the acceptance or receipt of funds through an electronic funds transfer, or by check, draft or similar instrument, or the proceeds of any of the foregoing) that are related, directly or indirectly, to unlawful Internet gambling is strictly prohibited.

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Schedule I Telephone Number(s) for Call-backs and Person(s) Designated to Give and Confirm Funds Transfer Instructions

If to Buyer:

Name Telephone Number Signature

1.

2.

If to Seller:

Name Telephone Number Signature

1.

2.

FOR YOUR SECURITY, PLEASE CROSS OUT ALL UNUSED SIGNATURE LINES ON THIS SCHEDULE 1

All instructions, including but not limited to funds transfer instructions, whether transmitted by facsimile or set forth in a PDF attached to an email, must include the signature of the Authorized Representative authorizing said funds transfer on behalf of each Escrow Party.

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EXHIBIT F

SALE MOTION PROVISIONS

[See attached]

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EXHIBIT F

SALE MOTION PROVISIONS

Each of the below provisions are to be included in the Sale Motion provided to the Bankruptcy Court pursuant to Section 12.01, such Sale Motion to otherwise be in form and substance reasonably acceptable to each of Seller and Buyer.

1. The Debtors’ ability to preserve and monetize value in the Mt Signal 2 Project faces significant and imminent challenges. The most immediate threat to the Mt Signal 2 Project is the risk that critical interconnection rights granted pursuant to the California Independent System Operator Corporation’s (“CAISO”) tariff will expire on August 22, 2016 (the ten year anniversary of the underlying interconnection agreement) unless an extension is granted by CAISO prior to such date.1 Without valid interconnection rights, the owner of the Mt Signal 2 Project has no ability to sell the power such project will generate, thus rendering the project much less valuable without the ability to generate the same amount of revenue as originally envisioned. CAISO generally requires up to 60 days to process an extension request, but is unlikely to process an extension request in less than approximately 30 days. Unlike with respect to the Mt Signal 3 Project, the Debtors can start the process of obtaining an extension prior to closing of the sale of the Equity Interests, however, the Buyer and the Seller Parties believe CAISO is unlikely to grant the extension unless the transferee is identified prior to the August 22, 2016 deadline.2

2. Second, certain conditional use permits and building permits for the Mt Signal 2 Project must also be renewed with the County of Imperial, California by August, 2016. Like the CAISO extension process, the project owner must begin the process of renewing these permits by mid-July, 2016, at the latest. Without such renewals, the Mt Signal 2 Project will be significantly delayed.3

3. Third, the Mt Signal 2 Project shares complex co-tenancies, shared infrastructure, rights of way and transmission facilities with the Mt Signal 3 Project that need to be addressed with the current Mt Signal 3 Project owner/developer, 8ME, to preserve and maximize the value of the Mt Signal 2 Project. For example, a local governmental entity, the Imperial Irrigation District (the “IID”), has placed a limit on the transmission capacity of the line (referred to as the “gen-tie”) which links the Mt Signal 2 and Mt Signal 3 Projects to the CAISO grid that will prevent the Mt Signal 2 and 3 Projects from delivering and selling their full output. Because the

1 In September, 2015, CAISO granted the Debtors an extension for the Projects through and including October 31, 2016. However, the validity of this extension is unclear since the governing tariff in effect at that time only permitted an extension through August 22, 2016. 2 Under the governing CAISO tariff currently in effect, the project owner seeking an extension must be deemed “creditworthy” by CAISO to be eligible for an extension. The Debtors believe that the Buyer should be able to satisfy this requirement. 3 While it is theoretically possible to obtain new conditional use permits and building permits, it is not practical. The process to obtain the original conditional use permits and building permits took over 3 years, including a settlement of litigation.

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Mt Signal 2 Project is not expected to be operational until more than a year after the Mt Signal 3 Project, the Mt Signal 2 Project bears the risk that its output (and thus revenue-generating ability) will be limited absent an amendment to the IID restriction or agreement with 8ME. The owner of the Mt Signal 2 Project also requires cooperation from 8ME to use various portions of the gen-tie and corresponding transmission equipment. The Buyer has been working closely with 8ME as business partners and proposed joint bidders for the Projects for approximately nine months to resolve these issues and develop a strategy to obtain a suitable amendment to the shared capacity limit.4

4. Fourth, development of the Mt Signal 2 Project is secured by approximately $10 million in letters of credit constituting DIP Obligations under the Final DIP Order that will be fully drawn if the project does not get built or the project’s power purchase agreement is terminated. Accordingly, without a sale of the Mt Signal 2 Project to a creditworthy owner such as the Buyer, recoveries to creditors in these Chapter 11 Cases may be reduced by the amount of such letters of credit. Pursuant to the terms of the PSA, the Buyer has agreed to effectively assume this credit support liability on the six month anniversary of closing the transaction. The extension of credit support by the LC Lenders prior to then during the initial 180-day period after closing is subject, among other things, to the consent of such lenders to the proposed terms thereof, and entry into definitive documentation among the Seller, the Buyer, the DIP Administrative Agent (as defined in the PSA) and the LC Issuers (as defined in the PSA) for the benefit of the LC Lenders (as defined in the PSA).

5. Fifth, the Mt Signal 2 Project owes Imperial Valley Solar Holdings, LLC (a third- party entity unaffiliated with either the Buyer or the Seller Parties) a substantial earn out payment, though the governing documentation is unclear regarding the owed amounts and timing for payment. The Buyer and its affiliates have made progress towards resolving these ambiguities with Imperial Valley Solar Holdings, LLC over the last three months. Another potential buyer would require additional time to negotiate terms with Imperial Valley Solar Holdings, LLC, which may slow down progress towards closing an alternative transaction.

4 8ME and D. E. Shaw Renewable Investments (“DESRI”), an affiliate of the Buyer, have been working together for more than 6 months to acquire certain assets from SunEdison. Indeed until recently they were participants in a joint bid to purchase a large portfolio of assets that included the Equity Interests. 8ME and DESRI expect to continue their cooperative efforts with respect to the Projects and other existing and potential renewable energy opportunities in the future, and in connection therewith, have entered into (or intend to enter into in the future) various contractual and commercial arrangements with respect to the Projects, including, but not limited to, arrangements to continue to work exclusively with each other on the Projects and to sell the respective Projects and related assets to each other in the future once the parties have completed certain development activities for each Project.

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SELLER DISCLOSURE SCHEDULE

to

PURCHASE AND SALE AGREEMENT

by and among

FIRST WIND CALIFORNIA HOLDINGS, LLC,

SUNEDISON, INC.,

And

DESRI MS2 DEVELOPMENT, L.L.C.

Dated as of JULY 1, 2016

This disclosure schedule (the “Seller Disclosure Schedule”) is being furnished in connection with the execution and delivery of that certain a Purchase and Sale Agreement (the “Agreement”) dated as of July 1, 2016 by and among First Wind California Holdings, LLC, a Delaware limited liability company (“Seller”), SunEdison, Inc., a Delaware corporation (“Seller Parent”), and DESRI MS2 Development, L.L.C., a Delaware limited liability company (“Buyer”). Unless the context otherwise requires, all capitalized terms used in the Seller Disclosure Schedule shall have the respective meanings assigned to them in the Agreement.

No reference to or disclosure of any item or other matter in the Seller Disclosure Schedule shall be construed as an admission that such item or other matter is material or that such item or other matter is required to be referred to or disclosed in the Seller Disclosure Schedule. The specification of any dollar amount in the representations or warranties in the Agreement or the inclusion of any specific item in the Seller Disclosure Schedule is not intended to imply that such amounts, or higher or lower amounts or the items so included or other items, are or are not material, and no party shall use the fact of the setting of such amounts or the inclusion of any such item in any dispute or controversy as to whether any obligation, items or matter not described in the Agreement or included in the Seller Disclosure Schedule is or is not material. Any item disclosed on the Seller Disclosure Schedule related to Article I, Article III or Article IV of the Agreement shall be deemed to have been disclosed with respect to each section of the Seller Disclosure Schedule related to Article I, Article III or Article IV of the Agreement for which it is reasonably apparent on its face that such disclosure is relevant. No disclosure in the Seller Disclosure Schedule relating to any possible breach or violation of any agreement, law or regulation shall be construed as an admission that any such breach or violation exists or has actually occurred.

The Seller Disclosure Schedule and the information and disclosures contained herein are intended only to qualify and limit the representations and warranties of Seller, Seller Parent and Buyer contained in the Agreement and shall not be deemed to expand in any way the scope or effect of any of such representations and warranties. 16-10992-smb Doc 695-3 Filed 07/05/16 Entered 07/05/16 11:38:27 Exhibit C Pg 157 of 185

The bold-faced headings contained in the Seller Disclosure Schedule are included for convenience only, and are not intended to limit the effect of the disclosures contained in the Seller Disclosure Schedule or to expand the scope of the information required to be disclosed in the Seller Disclosure Schedule.

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SECTION 1.01(A): COMPANY LIABILITIES

1. Invoice #00251822-B from HDR Constructors, Inc., in the amount of $52,171.85. 2. In connection with the Equinix PPA, $150,000. 3. Certain property taxes owed in the amount of $1,631.14. 4. Imperial Valley Solar Holdings, Inc. (“NTR”), in the amount of $7,500,000 under the Membership Purchase Agreement, dated as of February 8, 2011, between Sun Lake Solar LLC and NTR.

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SECTION 1.01(B): CREDIT SUPPORT INSTRUMENTS

1. Surety Bond, KO9273591, issued to County of Imperial by Imperial Valley Solar 2, LLC and Westchester Fire Insurance Company in the amount of $5,000,000. 2. Irrevocable Standby Letter of Credit, dated August 28, 2014, issued by Wells Fargo Bank, N.A. for the benefit of Southern California Electric Company, in the amount of $4,605,600, at the request of SunEdison, Inc., as applicant. 3. Irrevocable Non-Transferable Standby Letter of Credit, dated May 12, 2015, issued by KeyBank National Association for the benefit of Southern California Electric Company, in the amount of $4,605,600, at the request of SunEdison, Inc., as applicant.

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SECTION 2.03(A)(III): COMPANY RESIGNATIONS

None

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SECTION 4.03(D): THIRD PARTY RIGHTS

None

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SECTION 4.04: OWNERSHIP OF INTERESTS

None

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SECTION 4.06: CAPITALIZATION

None

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SECTION 4.07: LEGAL PROCEEDINGS

None

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SECTION 4.08: GOVERNMENTAL APPROVALS

Issuing Permittee Permit Description Status/Dated Agency

Imperial Calexico Solar Farm Final Agreement for Conditional Use Permit Recorded June County 1(B) (88FT 8ME, No. 11-0010 Calexico Solar Farm 1(B) 12, 2012 Planning and LLC) Development Services

Imperial Calexico Solar Farm Final Agreement for Conditional Use Permit Recorded June County 1(A) (88FT 8ME, No. 11-0009 Calexico Solar Farm 1(A) 12, 2012 Planning and LLC) Development Services Imperial Calexico Solar Farm Amended Agreement for Conditional Use Recorded County 1(B) (88FT 8ME, Permit No. 11-0010 Calexico Solar Farm August 25, Planning and LLC) 1(B) 2015 Development Services Imperial Calexico Solar Farm Amended Agreement for Conditional Use Recorded County 1(A) (88FT 8ME, Permit No. 11-0009 Calexico Solar Farm August 25, Planning and LLC) 1(A) 2015 Development Services Imperial Mount Signal Solar California Environmental Quality Act March 2012 County Farm 1 and Calexico Environmental Impact Report Planning and Solar Farm 1 and 2 Development Services Imperial Mount Signal Solar Corrected Notice of Determination No. May 7, 2012 County Board Farm I 20128EIR037, SCH 2011071066, for of Supervisors Calexico Solar Farm Conditional Use Permits: 1(A) • Mount Signal Solar Farm I CUP No. Calexico Solar Farm 10-0031 1(B) • Calexico Solar Farm IA CUP No. 11- Calexico Solar Farm 0009 2(A) • Calexico Solar Farm IB CUP No. 11- Calexico Solar Farm 0010 2(B) • Calexico Solar Farm IIA CUP No. 11-0011 • Calexico Solar Farm IIB CUP No. 11-0012 Imperial Calexico Solar Farm Notice of Determination 20138EIR035 for Posted July 9, County Board 1(A) Addendum to previously certified EIR(s), 2013 of Supervisors Calexico Solar Farm SCH No. 2011071066, to the Mount Signal

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1(B) and Calexico Solar Farms, for minor modifications to the Conditional Use Permits to allow the construction and operation of concentrated photovoltaic technology solar panels within the project sites. Imperial Calexico Solar Farm Notice of Determination No. 132015056 for Posted August County Board 1(A) Addendum No. 2 to previously certified 11, 2015 of Supervisors Calexico Solar Farm EIR(s), SCH No. 2011071066, to the Mount 1(B) Signal and Calexico Solar Farms, and minor Calexico Solar Farm modification to Conditional Use Permits for 2(A) the construction of up to six additional egress/ingress points for Calexico Solar Farm 1A and minor modifications to Calexico Solar Farm 1B and 2A for crossing of IID canals/drains State Water Property Owner: Notice of Intent – General Permit to September 2, Resources Imperial Valley Solar Discharge Storm Water Associated with 2015 Control Board 2, LLC Construction Activity Construction Site: WDID No. 7 A133143001 Mount Signal Solar 2 Colorado Imperial Valley Solar Order for Technically-Conditioned Clean January 6, River Basin 2, LLC Water Act Section 2016 Regional Mount Signal Solar 2 401 Water Quality Certification for Water Quality Discharge of Dredged and/or Fill Materials. Control Board WDlD No. 7A 133143001 U.S. Army Imperial Valley Solar Nationwide Verification October 30, Corps of 2, LLC USACE File No. SPL-2015-00543-SAS 2015 Engineers – Mount Signal Solar 2 Los Angeles District California Mount Signal Solar PreCertified eligibility for California’s August 5, Energy Farm II (88FT 8ME, Renewables Portfolio Standard 2014 Commission LLC) RPS ID: 61648C

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SECTION 4.09(A): MATERIAL CONTRACTS

I. Project Company and Corporate Documents

1. Amended and Restated Limited Liability Company Agreement (Imperial Valley Solar 2, LLC), dated April 7, 2015, by First Wind California Holdings, LLC (“A&R IVS-2 LLC Agreement”).

2. Limited Liability Company Membership Interest Transfer Agreement (Imperial Valley Solar 2, LLC), dated April 7, 2015, by and between First Wind California Holdings, LLC and SunEdison Holdings Corporation.

3. Side Letter, dated July 29, 2014, by and among 8Minutenergy Renewables, LLC, 8Minutenergy SPV1, LLC, 1st Mabel Avenue, LLC and Imperial Valley Solar Power, LLC as amended by Amendment to Side Letter, dated November 4, 2014, by and among 8Minutenergy Renewables, LLC, 8Minutenergy SPV1, LLC, 1st Mabel Avenue LLC, and Imperial Valley Solar Power, LLC.

4. Company Membership Interests Agreement, dated November 4, 2014, by and among 8Minutenergy SPV1 LLC, 1st Mabel Avenue LLC, and Silver Ridge Power, LLC.

5. Transfer Agreement, dated November 4, 2014, by and among Sun Edison LLC, 88FT, IVS2, and Silver Ridge Power, LLC.

6. Written Consent of the Sole Member of 88FT 8me LLC, dated February 1, 2015.

7. Fourth Amended and Restated Limited Liability Company Agreement of 88FT 8me LLC, dated September 1, 2015, by First Wind California Holdings, LLC (the “4th A&R 88FT LLC Agreement”).

8. Closing Notice Regarding Transfer of Equity Interests in 88FT 8me LLC, dated January 30, 2015, by Sun Edison LLC and acknowledged by Silver Ridge Power, LLC.

9. Membership Purchase Agreement, dated February 11, 2011, by and between Imperial Valley Solar Holdings, Inc. and Sun Lake Solar, as amended by that certain Amendment No. 1 to Membership Purchase Agreement, dated September [ ], 2011, by and between Sun Lake Solar LLC and Imperial Valley Solar Holdings, Inc.

10. Amended and Restated Limited Liability Company Agreement of Sun Lake Solar, LLC, dated September 1, 2015, by First Wind California Holdings, LLC.

II. Development

1. Public Benefit Program Agreement (Calexico Solar Farm 1-A Project), dated April 3, 2012, by and between County of Imperial and 88FT.

2. Public Benefit Program Agreement (Calexico Solar Farm 1-B Project), dated April 3, 2012, by and between County of Imperial and 88FT.

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III. Interconnection

1. LGIA Co-Tenancy Agreement, dated September 13, 2012, by and among Imperial Valley Solar 1, LLC, a Delaware limited liability company (“IVS1”), IVS2, IVS3, IVS4, and IVS.

2. Standard Large Generator Interconnection Agreement, dated August 5, 2009, by and among IVS (f/k/a SES Solar Two, LLC), SDG&E and CAISO, as amended by that certain First Amendment to LGIA, dated June 28, 2012, and that certain Second Amendment to LGIA, dated October 1, 2012, in each case, by and among IVS1, IVS2, IVS3, IVS4, IVS, CAISO and SDG&E.

IV. Power Purchase

1. Renewable Power Purchase and Sale Agreement, by and between Southern California Edison Company (“SCE”) and IVS2 (as assignee of 88FT).

2. Assignment Agreement, dated December 30, 2014, by and between 88FT and IVS2.

3. Notice of Assignment (PPA), dated January 8, 2015, by IVS2 to SCE.

4. Notice of Assignment (Equity Interests of 88FT 8me LLC), dated November 6, 2014, by Silver Ridge Power, LLC to SCE.

5. Consent to Assignment of Membership Interest from SCE with respect to SCE PPA.

V. Construction

1. Oral agreement with IBEW Local 569 pursuant to which Imperial Valley Solar 2, LLC has agreed to enter into a Project Labor Agreement and ancillary documents under which the IVS2 Project will be required, among other things, to exclusively use the services of electricians who are signatory to a collective bargaining agreement with IBEW Local 569. The IVS2 Project will be required to enter into a project labor agreement that has already been structured with provisions specific to the IVS2 Project.

2. Oral agreement with Southern California District Council of Laborers and Laborers International Union of North America, Local 1184, pursuant to which Imperial Valley Solar 2, LLC has agreed to enter into a Project Labor Agreement and ancillary documents under which the IVS2 Project will be required, among other things, to exclusively use the services of laborers who are signatory to a collective bargaining agreement with Laborers Local 1184. The IVS2 Project will be required to enter into a project labor agreement that has already been structured with provisions specific to the IVS2 Project.

3. Notice of Cancellation of Purchase Order Nos. FWE0022296, FWE0022326 and FWE0022355, dated November 5, 2015, by and among Imperial Valley Solar 2, LLC, Imperial Valley Solar 3, LLC and NEXTracker, Inc., pursuant to IVS2 and IVS3 agreed to pay engineering fees with respect to the projects in an aggregate amount of $165,329.00.

4. Mount Signal Solar 2 – Limited Notice to Proceed #1, dated September 17, 2015, by and between IVS2 and HDR Constructors, Inc., authorizing pre-construction work in an amount not to exceed $100,000.

5. Each of the real property documents listed on Schedule 4.15(A).

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All contracts listed on Schedule 4.15(A)

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SECTION 4.09(B): MATERIAL CONTRACT EXCEPTIONS

None

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SECTION 4.12: TRANSACTIONS WITH SELLER PARENT AFFILIATES

1. LGIA Co-Tenancy Agreement, dated September 13, 2012, by and among Imperial Valley Solar 1, LLC, Imperial Valley Solar 2, LLC, Imperial Valley Solar 3, LLC, Imperial Valley Solar 4, LLC, and Imperial Valley Solar, LLC.

2. Standard Large Generator Interconnection Agreement, dated August 5, 2009, by and among Imperial Valley Solar, LLC (f/k/a SES Solar Two, LLC), SDG&E and CAISO, as amended by that certain First Amendment to LGIA, dated June 28, 2012, and that certain Second Amendment to LGIA, dated October 1, 2012, in each case, by and among Imperial Valley Solar 1, LLC, Imperial Valley Solar 2, LLC, Imperial Valley Solar 3, LLC, Imperial Valley Solar 4, LLC, Imperial Valley Solar, LLC, CAISO and SDG&E.

3. Irrevocable Standby Letter of Credit, dated August 28, 2014, issued by Wells Fargo Bank, N.A. for the benefit of Southern California Electric Company, in the amount of $4,605,600, at the request of SunEdison, Inc., as applicant.

4. Irrevocable Non-Transferable Standby Letter of Credit, dated May 12, 2015, issued by KeyBank National Association for the benefit of Southern California Electric Company, in the amount of $4,605,600, at the request of SunEdison, Inc., as applicant.

5. Agreement of Indemnity, dated November 17, 2014, by and between Seller Parent and the Surety, as amended.

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SECTION 4.13: FINANCIAL STATEMENTS

February 29, 2016

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SECTION 4.14: OUTSTANDING LIABILITIES

1. Invoice #00251822-B from HDR Constructors, Inc., in the amount of $52,171.85. 2. In connection with the Equinix PPA, $150,000. 3. Certain property taxes owed in the amount of $1,631.14. 4. Imperial Valley Solar Holdings, Inc. (“NTR”), in the amount of $7,500,000 under the Membership Purchase Agreement, dated as of February 8, 2011, between Sun Lake Solar LLC and NTR.

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SECTION 4.15(A): COMPANY PROPERTY

Imperial Valley Solar 2, LLC - Owned Real Property

1. Kay Brockman Bishop Land

The land situated in the State of California, County of Imperial, and described as follows:

Parcel 1:

The Northwest quarter of the Northwest quarter of Section 15, Township 17 South, Range 13 East, San Bernardino Base and Meridian, in an unincorporated area of the County of Imperial, State of California, according to the Official Plat thereof.

(APN: Portion of 052-210-001)

Parcel 2:

The South half of the North half of Section 15, Township 17 South, Range 13 East, San Bernardino Base and Meridian, in an unincorporated area of the County of Imperial, State of California, according to the Official Plat thereof.

(APN: Portion of 052-210-001)

Parcel 3:

The Northeast quarter of the Northwest quarter of Section 15, Township 17 South, Range 13 East, San Bernardino Base and Meridian, in an unincorporated area of the County of Imperial, State of California, according to the Official Plat thereof.

(APN: 052-210-002)

2. Kemp Land

The property located at 105 Rockwood Road, Calexico, CA 92231, conveyed to Imperial Valley Solar 2, LLC, a Delaware limited liability company (“IVS2”), by that certain Grant Deed, dated September 15, 2015, made by Michael P. Kemp and Julie A. Kemp, as joint tenants, and recorded in the Official Records of Imperial County (the “Official Records”) on December 9, 2015 as Document No. 2015025488.

Imperial Valley Solar 2, LLC - Leased Real Property

Leasehold estates created under and evidenced by the following documents:

1. Tract 2: George Bishop / Leasehold Project Site

A leasehold estate created by that certain unrecorded Exercise Notice, commencing as of August 20, 2015 (as disclosed in that certain Amendment No. 1 of Memorandum of Solar Generating Facility Land Option and Lease Agreement dated August 20, 2015 recorded in the Official Records on April 5, 2016 as Document No. 2016006405 (the “Amendment of Memorandum (Bishop)”)), pursuant to that certain Solar Generating Facility Land Option and Lease Agreement dated September 27, 2010, by and between George Bishop, Lessor, and 8Minutenergy Renewables, LLC, a Delaware limited liability company (“8ME”), Lessee, as evidenced by that certain Memorandum of Option and Solar System Site Lease Agreement dated December 17, 2010 and recorded in the Official Records on May

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11, 2011 as Document No. 2011-11336, as assigned by 8ME to 88FT 8ME LLC, a Delaware limited liability company (“88FT”) pursuant to that certain Assignment and Assumption Agreement dated February 28, 2011, a memorandum of which was recorded in the Official Records on April 28, 2011 as Document No. 2011-010380, as amended by that certain Amendment No. 1 to Solar Generating Facility Land Option and Lease Agreement dated August 20, 2015 and recorded in the Official Records on April 5, 2016 as Document No. 2016006403, as evidenced by the Amendment of Memorandum (Bishop), as 88FT’s rights thereunder have been further assigned to IVS2 pursuant to that certain Assignment and Assumption Agreement dated August 20, 2015 by and between 88FT, Assignor, and IVS2, Assignee, as recorded in the Official Records on April 5, 2016 as Document No. 2016006404.

2. Tract 3: Curtis Corda / Leasehold Project Site

A leasehold estate created by that certain unrecorded Exercise Notice, commencing as of August 20, 2015 (as disclosed in that certain Amendment No. 1 of Memorandum of Solar Generating Facility Land Option and Lease Agreement dated August 20, 2015 and recorded in the Official Records on April 5, 2016 as Document No. 2016006409 (the “Amendment of Memorandum (Corda)”)), pursuant to that certain Solar Generating Facility Land Option and Lease Agreement dated November 15, 2010 by and between Curtis Corda and Julie Corda, Co-Trustees of the Corda Family Trust dated June 4, 1990, Lessor, and 8ME, Lessee, as evidenced by that certain Memorandum of Option and Solar System Site Lease Agreement dated April 1, 2011 and recorded in the Official Records on April 28, 2011 as Document No. 2011-10378, as assigned to 88FT pursuant to that certain Assignment and Assumption Agreement dated March 1, 2011, a memorandum of which was recorded in the Official Records on April 28, 2011, as Document No. 2011-10379, and as amended by that certain Amendment No. 1 to Solar Generating Facility Land Option and Lease Agreement dated August 20, 2015 and recorded in the Official Records on April 5, 2016 as Document No. 2016006407, as evidenced by the Amendment of Memorandum (Corda), as 88FT’s rights thereunder have been further assigned to IVS2 pursuant to that certain Assignment and Assumption Agreement dated August 20, 2015 by and between 88FT, Assignor, and IVS2, Assignee, and recorded in the Official Records on April 5, 2016 as Document No. 2016006408.

Tract 4: Gus Connelly / Leasehold Project Site

A leasehold estate created by that certain unrecorded Exercise Notice, commencing as of August 20, 2015 (as disclosed in that certain Amendment No. 1 of Memorandum of Solar Generating Facility Land Option and Lease Agreement dated August 20, 2015 and recorded in the Official Records on April 5, 2016 as Document No. 2016006413 (the “Amendment of Memorandum (Connelly)”)), pursuant to that certain Solar Generating Facility Land Option and Lease Agreement dated September 1, 2010 by and between W.R. Connelly, Lessor, and 8ME, Lessee, as evidenced by that certain Memorandum of Option and Solar System Site Lease Agreement dated December 14, 2010 and recorded in the Official Records on January 14, 2011 as Document No. 2011-001090 (the “Lease (Connelly)”), as amended by that certain Amendment No. 1 to Option and Solar System Site Lease Agreement dated November 16, 2010, and as lessor’s rights under the Lease (Connelly) have been assigned to Gus Connelly and Jo Ann Connelly pursuant to that certain Assignment and Assumption Agreement dated March 21, 2011, a memorandum of which was recorded in the Official Records on April 7, 2011 as Document No. 2011-08705, and as further assigned to Gus Connelly and Jo Ann Connelly as Co-Trustees of The Gus G. Connelly and JoAnn B. Connelly Family Trust, dated December 20, 2012 pursuant to that certain Assignment of Solar Generating Facility Land Option and Lease Agreement dated August 20, 2015 and recorded in the Official Records on April 5, 2016 as Document No.2016006410, and as lessee’s rights under the Lease have been assigned to 88FT pursuant to that certain Assignment and Assumption Agreement dated March 1, 2011, a memorandum of which was recorded in the Official Records on April 28, 2011, as Document No.

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2011-10381, and as amended by that certain Amendment No. 2 to Solar Generating Facility Land Option and Lease Agreement dated August 20, 2015 and recorded in the Official Records on April 5, 2016 as Document No. 2016006411, as evidenced by the Amendment of Memorandum (Connelly), as 88FT’s rights thereunder have been further assigned to IVS2 pursuant to that certain Assignment and Assumption Agreement dated August 20, 2015 by and between 88FT, Assignor, and IVS2, Assignee, and recorded in the Official Records on April 5, 2016 as Document No. 2016006412.

Tract 5: Brandenberg/Seitz / Leasehold Project Site

A leasehold estate created by that certain unrecorded Exercise Notice, commencing as of August 20, 2015 (as disclosed in that certain Amendment No. 1 of Memorandum of Solar Generating Facility Land Option and Lease Agreement dated August 20, 2015 and recorded in the Official Records on April 5, 2016 as Document No. 2016006417 (the “Amendment of Memorandum (Brandenberg/Seitz)”)), pursuant to that certain Solar Generating Facility Land Option and Lease Agreement dated November 1, 2010 by and between Robert Brandenberg, Shawn Brandenberg, and Charles Seitz and Mary Seitz, Lessors, and 8ME, Lessee, as evidenced by that certain Memorandum of Option and Solar Site System Lease Agreement dated April 1, 2011 and recorded in the Official Records on April 28, 2011 as Document No. 2011-10376, as assigned to 88FT pursuant to that certain Assignment and Assumption Agreement dated February 28, 2011, a memorandum of which was recorded in the Official Records on April 28, 2011, as Document No. 2011-10377, and as amended by that certain Amendment No. 1 to Solar Generating Facility Land Option and Lease Agreement dated August 20, 2015 and recorded in the Official Records on April 5, 2016 as Document No. 2016006415, as evidenced by the Amendment of Memorandum (Brandenberg/Seitz), as 88FT’s rights thereunder have been further assigned to IVS2 pursuant to that certain Assignment and Assumption Agreement dated August 20, 2015 by and between 88FT, Assignor, and IVS2, Assignee, and recorded in the Official Records on April 5, 2016 as Document No. 2016006416.

Tract 6: Shawna Bishop / Leasehold Project Site

A leasehold estate created by that certain unrecorded Exercise Notice commencing as of August 20, 2015 (as disclosed in that certain Amendment No. 1 of Memorandum of Solar Generating Facility Land Option and Lease Agreement dated August 20, 2015 and recorded in the Official Records on April 5, 2016 as Document No. 2016006421) , pursuant to that certain Solar Generating Facility Land Option and Lease Agreement dated March 15, 2011 by and between Steven Earl Bishop and Shawna Michaele Bishop, Trustees of the 1997 Steven Earl Bishop and Shawna Michaele Bishop Trust, dated August 11, 1997, Lessor, and 88FT, Lessee, as evidenced by that certain Memorandum of Option and Solar System Site Lease Agreement dated April 1, 2011 and recorded in the Official Records on April 28, 2011 as Document No. 2011-10382, and as amended by that certain Amendment No. 1 to Solar Generating Facility Land Option and Lease Agreement dated August 20, 2015 and recorded in the Official Records on April 5, 2016 as Document No. 2016006419, as evidenced by the Amendment of Memorandum (Shawna Bishop), as 88FT’s rights thereunder have been further assigned to IVS2 pursuant to that certain Assignment and Assumption Agreement dated August 20, 2015 by and between 88FT, Assignor, and IVS2, Assignee, and recorded in the Official Records on April 5, 2016 as Document No. 2016006420.

Tract 7: Dessert / Leasehold Project Site

A leasehold estate created by that certain unrecorded Exercise Notice, commencing as of August 20, 2015 (as disclosed in that certain Amendment No. 1 of Memorandum of Solar Generating Facility Land Option and Lease Agreement dated August 20, 2015 and recorded in the Official Records on April 5, 2016 as Document No. 2016006424 (the “Amendment of Memorandum (Dessert)”)), pursuant to that certain Solar Generating Facility Land Option and Lease Agreement dated July 15,

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2011 by and between Mary W. Dessert, Trustee of the Dessert Family Trust u/d/t July 1, 1980 as amended, Lessor, and 85JP 8ME, LLC, a Delaware limited liability company (“85JP”), Lessee, as evidenced by that certain Memorandum of Option and Solar System Site Lease Agreement dated January 11, 2012 and recorded in the Official Records on February 22, 2012 as Document No. 2012- 003813, as amended by that certain Amendment to No. 1 to Option and Solar System Site Lease Agreement dated September 19, 2011, as assigned to 88FT pursuant to that certain Assignment and Assumption Agreement dated November 8, 2011, a memorandum of which was recorded in the Official Records on December 20, 2011 as Document No. 2011-030235, and as further amended by that certain Amendment No. 2 to Transmission Easement Agreement and Amendment No. 2 to Solar Generating Facility Land Option and Lease Agreement dated April 10, 2014, as evidenced by that certain Memorandum of Amendment No. 2 to Transmission Easement Agreement and Amendment No. 2 to Solar Generating Facility Land Option and Lease Agreement dated as of April 10, 2014, and recorded in the Official Records on May 19, 2014 as Document No. 2014009617, and as further amended by that certain Amendment No. 3 to Solar Generating Facility Land Option and Lease Agreement dated August 20, 2015 and recorded in the Official Records on April 5, 2016 as Document No. 2016006422, as evidenced by the Amendment of Memorandum (Dessert), and as 88FT’s rights thereunder have been further assigned to IVS2 pursuant to that certain Assignment and Assumption Agreement dated August 20, 2015 by and between 88FT, Assignor, and IVS2, Assignee, and recorded in the Official Records on April 5, 2016 as Document No. 2016006423.

Imperial Valley Solar 2, LLC - Other Material Contracts Related to Real Estate

Excluding any Contracts associated with real property interests described under “Owned Land” and “Leased Real Property”, above, and any option agreements or exercise notices relating to the acquisition of those scheduled interests.

1. Settlement Agreement

Settlement Agreement and Release of Claims dated as of July 9, 2013, between 88FT and Michael and Julie Kemp, as assigned to IVS2 pursuant to Assignment and Assumption of Settlement Agreement and Release of Claims, dated as of September 30, 2015, by and between 88FT, Assignor, and IVS2, Assignee.

88FT -- Owned Real Property

None.

88FT -- Leased Real Property

None.

88FT -- Other Material Contracts Related to Real Estate

1. Tract 8: IVS1 / Easement

That certain non-exclusive easement for transmission lines created by that certain Transmission Easement Agreement dated November 9, 2012, by and between Imperial Valley Solar 1, LLC, a Delaware limited liability company, and 88FT, upon the terms therein provided and recorded in the Official Records on November 9, 2012 as Document No. 2012025853 (“IVS1 Easement”).

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SECTION 4.15(h): PROJECT LAND NOT HELD BY SELLER

1. Various co-tenancy rights granted pursuant to the co-tenants under that certain Co-Tenancy and Shared Use Agreement dated September 28, 2012, subject to all of the provisions contained therein, by and between Imperial Valley Solar I, LLC, a Delaware limited liability company (“IVS1”), Imperial Valley Solar, LLC, a Delaware limited liability company (“IVS”), and CSolar IV South, LLC, a Delaware limited liability company (“C-Solar”), as co-tenants, a memorandum of which was recorded November 9, 2012, as Instrument No. 2012025850, as amended by that certain unrecorded Amendment No. 1 to Co-Tenancy and Shared Use Agreement dated April 30, 2012, and as amended by that certain Amendment No. 2 to Co-Tenancy and Shared Use Agreement dated May 19, 2014, and recorded May 19, 2014, as Instrument No. 2014009619, all of Official Records.

2. Transmission rights granted under that certain Transmission Easement Agreement dated March 9, 2012, executed by George Bishop, as grantor and IV Renewable Energy Line LLC, a Delaware limited liability company (“IVRE”), as grantee, recorded in the Official Records on May 17, 2012, as Instrument No. 2012- 010915, as amended by that certain Amendment No. 1 to Transmission Easement Agreement dated July 10, 2012, and recorded in the Official Records on November 9, 2012, as Instrument No. 2012025831, and as assigned by IVRE to IVS, IVS1 and C-Solar, as co-tenants, pursuant to that certain Assignment and Assumption Agreement, dated November 9, 2012, and recorded in the Official Records on November 9, 2012 as Document Number 2012025832, and as further amended by that certain Amendment No. 2 to Transmission Easement Agreement dated August 30, 2013, and recorded November 15, 2013, as Instrument No. 2013026140 (“Bishop T-Line Agreement”).

3. Easement rights granted pursuant to that certain Easement Agreement, executed by IVS1, as grantor, and IVS, IVS1 and CSolar, as co-tenants, recorded November 9, 2012, as Instrument No. 2012025845, pursuant to that certain Co-Tenancy and Shared Use Agreement, a memorandum of which was recorded November 9, 2012, as Instrument No. 2012025850, as amended by that certain unrecorded Amendment No. 1 to Co-Tenancy and Shared Use Agreement dated April 30, 2013, and as amended by that certain Amendment No. 2 to Co-Tenancy and Shared Use Agreement dated May 19, 2014, and recorded May 19, 2014, as Instrument No. 2014009619. (“Co-Tenancy T-Line Agreement”).

4. Easement rights granted pursuant to that certain Easement (Segment B/C) dated November 9, 2012, executed by Curtis John Corda and Julie Ann Corda, as Trustees of the Corda Family Trust, dated June 4, 1990, Grantor, and IVS1, Grantee, and recorded in the Official Records on November 9, 2012 as Document Number 2012025841 and as assigned pursuant to that certain Assignment and Assumption Agreement, dated November 9, 2012, by and among IVS1, Assignor, and IVS1, IVS and C-Solar, as Co-Tenants, and recorded in the Official Records on November 9, 2012 as Document 2012025842 (“Corda Co-Tenancy Agreement”).

5. Transmission rights granted under that certain Transmission Easement Agreement dated March 13, 2012, executed by Robert Brandenberg, Shawn Brandenberg, Charles Seitz and Mary Seitz, as grantor and IVRE, as grantee, recorded May 17, 2012, as Instrument No. 2012- 010914, as amended by that certain Amendment No. 1 to Transmission Easement dated July 10, 2012, and recorded November 9, 2012, as Instrument No. 2012025834, and as assigned pursuant to that certain Assignment and Assumption Agreement (Brandenberg Transmission Easement Agreement) dated November 9, 2012, and recorded November 9, 2012, as Instrument No. 2012025835 and as amended pursuant to that certain Amendment No. 2 to Transmission

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Easement Agreement dated August 30, 2013, and recorded November 15, 2013, as Instrument No. 2013026141 (“Brandenberg/Seitz T-Line Agreement”).

6. Transmission rights granted under that certain Transmission Easement Agreement dated March 15, 2012, executed by Mary W. Dessert, Sole Successor Trustee of the Archibald M. Dessert and Mary W. Dessert Declaration of Trust, dated July 1, 1980, as grantor and IVRE, as grantee, recorded May 9, 2012, as Instrument No. 2012-010215, as amended by that certain Amendment No. 1 to Transmission Easement dated November 9, 2012, and recorded November 9, 2012, as Instrument No. 2012025838, as assigned pursuant to that certain Assignment and Assumption Agreement (Dessert Transmission Easement Agreement – 100’ Easement) dated November 9, 2012, and recorded November 9, 2012, as Instrument No. 2012025839 an as amended pursuant to that certain Amendment No. 2 to Transmission Easement Agreement dated April 10, 2014, and recorded May 19, 2014, as Instrument No. 2014009617 (“Dessert T-Line Agreement”).

7. Expanded easement rights under the IVS1 Easement for driveway access to the proposed substation on APN 052-210-001.

8. IVS and IVS1 signatures to that certain First Amendment No. 1 to the Corda Co-Tenancy Agreement correcting the legal description of easement rights granted thereunder.

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SECTION 4.17: EQUITY COMMITMENTS

1. Agreement of Indemnity, dated November 17, 2014, by and between Seller Parent and the Surety, as amended.

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SECTION 4.20: TAX MATTERS

None

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SECTION 6.02: INTERIM PERIOD OPERATIONS

None

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SECTION 6.10(A): AFFILIATE CONTRACTS

None

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SECTION 6.10(B): SURVIVING AFFILIATE CONTRACTS

1. LGIA Co-Tenancy Agreement, dated September 13, 2012, by and among Imperial Valley Solar 1, LLC, Imperial Valley Solar 2, LLC, Imperial Valley Solar 3, LLC, Imperial Valley Solar 4, LLC, and Imperial Valley Solar, LLC.

2. Standard Large Generator Interconnection Agreement, dated August 5, 2009, by and among Imperial Valley Solar, LLC (f/k/a SES Solar Two, LLC), SDG&E and CAISO, as amended by that certain First Amendment to LGIA, dated June 28, 2012, and that certain Second Amendment to LGIA, dated October 1, 2012, in each case, by and among Imperial Valley Solar 1, LLC, Imperial Valley Solar 2, LLC, Imperial Valley Solar 3, LLC, Imperial Valley Solar 4, LLC, Imperial Valley Solar, LLC, CAISO and SDG&E.

3. Irrevocable Standby Letter of Credit, dated August 28, 2014, issued by Wells Fargo Bank, N.A. for the benefit of Southern California Electric Company, in the amount of $4,605,600, at the request of SunEdison, Inc., as applicant.

4. Irrevocable Non-Transferable Standby Letter of Credit, dated May 12, 2015, issued by KeyBank National Association for the benefit of Southern California Electric Company, in the amount of $4,605,600, at the request of SunEdison, Inc., as applicant.

5. Agreement of Indemnity, dated November 17, 2014, by and between Seller Parent and the Surety, as amended.

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SECTION 6.11: EMPLOYEES

1. Joyce Chang 2. Hy Martin 3. Patrick Cook 4. Marc van Patten 5. Brett Martino 6. Tom Siegal