Exhibit 10.2


 


Execution Version


 


PURCHASE AND SALE AGREEMENT


 


by and among


 


Dearborn Industrial Generation, L.L.C.


 


CMS Generation Michigan Power, L.L.C.


 


CMS Energy Resource Management Company


 


Collectively, as Seller,


 


and


 


Consumers Energy Company


 


as Buyer


 


dated as of June 21, 2021


 



    


     


    

 


TABLE OF CONTENTS


 


	 	 	Page
	ARTICLE I. DEFINITIONS AND CONSTRUCTION	1
	Section 1.1.	Definitions	1
	Section 1.2.	Rules of Construction	10
	ARTICLE II. PURCHASE AND SALE AND CLOSING	11
	Section 2.1.	Purchase
and Sale	11
	Section 2.2.	Assumed Liabilities	11
	Section 2.3.	Excluded Liabilities	11
	Section 2.4.	Purchase
Price	12
	Section 2.5.	Closing	12
	Section 2.6.	Closing
Deliveries by Seller to Buyer	12
	Section 2.7.	Closing Deliveries by Buyer to Seller	13
	Section 2.8.	Post-Closing Adjustment	13
	Section 2.9.	Purchase
Price Adjustment Based on Capacity	14
	Section 2.10.	Allocation
of Purchase Price	15
	ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER	16
	Section 3.1.	Organization	16
	Section 3.2.	Authority; Enforceability	16
	Section 3.3.	No
Conflicts; Consents and Approvals	17
	Section 3.4.	[Intentionally Omitted]	17
	Section 3.5.	Brokers	17
	Section 3.6.	Legal
Proceedings	17
	Section 3.7.	Compliance
with Laws and Orders	18
	Section 3.8.	Financial
Statements; No Undisclosed Liabilities	18
	Section 3.9.	Absence
of Certain Changes	18
	Section 3.10.	Taxes	18
	Section 3.11.	[Intentionally Omitted]	19
	Section 3.12.	Contracts	19
	Section 3.13.	Ownership;
Liens	20
	Section 3.14.	Permits	20
	Section 3.15.	Environmental
Matters	21
	Section 3.16.	Intellectual
Property	21



 



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	Section 3.17.	[Intentionally Omitted]	21
	Section 3.18.	Employees
and Labor Matters	21
	Section 3.19.	Employee
Benefits	22
	Section 3.20.	Inventory	23
	Section 3.21.	Insurance	23
	Section 3.22.	[Reserved]	24
	Section 3.23.	FERC,
NERC, DOE and/or MISO Matters	24
	ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF BUYER	24
	Section 4.1.	Organization	24
	Section 4.2.	Authority;
Enforceability	24
	Section 4.3.	No
Conflicts	25
	Section 4.4.	Legal
Proceedings	25
	Section 4.5.	Brokers	25
	Section 4.6.	Sufficiency
of Funds	25
	Section 4.7.	Solvency	26
	Section 4.8.	Independent
Investigation	26
	ARTICLE V. COVENANTS	27
	Section 5.1.	Regulatory
and Other Approvals	27
	Section 5.2.	Access
of Buyer and Seller	28
	Section 5.3.	Certain Restrictions	29
	Section 5.4.	Termination
of Certain Services and Contracts	31
	Section 5.5.	Employee
and Benefit Matters	31
	Section 5.6.	Indebtedness	31
	Section 5.7.	Insurance	31
	Section 5.8.	Transfer
Taxes; Property Taxes	32
	Section 5.9.	Books
and Records	33
	Section 5.10.	Intentionally
Omitted	33
	Section 5.11.	Casualty	33
	Section 5.12.	Condemnation	34
	Section 5.13.	Confidentiality	34
	Section 5.14.	Public
Announcements	34
	Section 5.15.	Distributions	34
	Section 5.16.	Further
Assurances	34
	Section 5.17.	Monthly
Operating Report	35



 



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	Section 5.18.	Intentionally
Omitted	35
	Section 5.19.	Financial Statements	35
	Section 5.20.	Intentionally
Omitted	35
	Section 5.21.	No
Solicitation of Other Bids	35
	ARTICLE VI. BUYER'S CONDITIONS TO CLOSING	37
	Section 6.1.	Representations
and Warranties	37
	Section 6.2.	Performance	38
	Section 6.3.	Officer's
Certificate	38
	Section 6.4.	Orders
and Laws	38
	Section 6.5.	Consents
and Approvals	38
	Section 6.6.	Resignation
of Members, Managers, Officers and Directors	38
	Section 6.7.	Release
of Indebtedness; Release of Liens	38
	Section 6.8.	Owner's
Title Policy	38
	Section 6.9.	Remediation
Obligations	39
	Section 6.10.	Due
Diligence	39
	ARTICLE VII. SELLER'S CONDITIONS TO CLOSING	39
	Section 7.1.	Representations
and Warranties	39
	Section 7.2.	Performance	40
	Section 7.3.	Officer's
Certificate	40
	Section 7.4.	Orders
and Laws	40
	Section 7.5.	Consents
and Approvals	40
	ARTICLE VIII. TERMINATION	40
	Section 8.1.	Termination	40
	Section 8.2.	Effect
of Termination	41
	Section 8.3.	Specific
Performance and Other Remedies	41
	ARTICLE IX. INDEMNIFICATION, LIMITATIONS OF LIABILITY AND WAIVERS	41
	Section 9.1.	Indemnification	41
	Section 9.2.	Limitations
of Liability	42
	Section 9.3.	No
Other Representations or Warranties	43
	Section 9.4.	Waiver
of Remedies	43
	Section 9.5.	Procedure
with Respect to Third-Party Claims	44
	ARTICLE X. MISCELLANEOUS	45
	Section 10.1.	Notices	45
	Section 10.2.	Entire
Agreement	46



 



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	Section 10.3.	Expenses	46
	Section 10.4.	Disclosure	46
	Section 10.5.	Waiver	46
	Section 10.6.	Amendment	47
	Section 10.7.	No
Third-Party Beneficiary	47
	Section 10.8.	Assignment;
Binding Effect	47
	Section 10.9.	Headings	47
	Section 10.10.	Invalid
Provisions	47
	Section 10.11.	Counterparts;
Facsimile	47
	Section 10.12.	Governing
Law; Venue; and Jurisdiction	48
	Section 10.13.	No
Partnership or Joint Venture	48



 


EXHIBITS


 


	Exhibit 2.1(a)	Purchased
Assets
	Exhibit 2.1(b)	Excluded
Assets



 


SCHEDULES


 


	1.1-A	Net Working Capital Calculation
	1.1-B	Budget
	1.1-AC	Assigned Contracts
	1.1-BA	Buyer Approvals
	1.1-K	Knowledge
	1.1-PL	Permitted Liens
	3.3(b)	Seller Consents
	3.3(c)	Seller Approvals
	3.12	Material Contracts
	3.14(a)	Permits
	3.15(f)	Emissions Credits and Allowances
	3.18(a)	Employees of Seller
	3.18(b)	Employees
	3.18(c)	Third Party Vendor Contract
	3.19	Employee Benefits
	3.21	Insurance
	3.23(b)	FERC/NERC/DOE/MISO Requirements
Non-Compliance
	3.23(c)	FERC/NERC/DOE/MISO Violation Notices
	5.4	Terminated Contracts
	5.9	Books and Records
	5.17	Monthly Operating Report



 



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PURCHASE AND SALE AGREEMENT


 


This Purchase and Sale Agreement,
dated as of June 21, 2021 (this "Agreement"), is made and entered into by and among CMS Energy Resource Management
Company, a Michigan corporation (“CMS ERM”), Dearborn Industrial Generation, L.L.C., a Michigan limited liability
company (“DIG”), CMS Generation Michigan Power, L.L.C., a Michigan limited liability company (“CMS
GMP”, and collectively with CMS ERM and DIG, "Seller") and Consumers Energy Company, a Michigan
corporation ("Buyer").


 


WITNESSETH:


 


WHEREAS, Seller desires to
sell to Buyer, and Buyer desires to purchase from Seller, the Purchased Assets (as defined below) on the Closing Date (as defined below)
on the terms and subject to the conditions set forth in this Agreement.


 


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 AND CONSTRUCTION


 


		Section 1.1.	Definitions.



 


As used in this Agreement,
the following capitalized terms have the meanings set forth below:


 


"Acceptable
Orders" means all of the following:


 


		(i)	a final order of the MPSC that includes the following: (a) affirmation that the acquisition of the
Project by Buyer is reasonable and prudent; (b) approval for Buyer to include the Base Purchase Price of the Project in its rate
base, (c) recognition of the fuel costs associated with operation of the Project, and approval of the rate adjustments necessary
to allow full recovery by Buyer of the non-fuel costs of operating and maintaining the Project; and in the case of each of the approvals
set forth in clauses (b) and (c), without the imposition of other conditions that taken in the aggregate would have the effect of
reducing such recovery; and in addition to all of the preceding, such order shall be in all other respects satisfactory to Buyer and not
subject to appeal or further appeal;



 


		(ii)	a final order of the MPSC approving Buyer's integrated resource plan (to be filed with the MPSC in June 2021)
in a form that is acceptable to Buyer and not subject to further appeal; and



 


		(iii)	authorization from the FERC for the acquisition of the Purchased Assets by Buyer from Seller pursuant
to Section 203 of the FPA and granted without material condition or limitation.



 






     


     


    

 


"Acquisition
Proposal" has the meaning given to it in Section 5.21.


 


"Affiliate"
means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries, controls,
is controlled by or is under common control with such Person. 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 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 more than 50% of the voting securities in such corporation or of the voting interest
in a partnership or limited liability company.


 


"Agreement"
has the meaning given to it in the introduction to this Agreement.


 


"AK
Steel" has the meaning given to it in Section 6.9.


 


"Ancillary
Agreements" means the Assignment and Assumption Agreements, bills of sale, the Warranty Deeds, the Closing Certificates
and the other documents and agreements to be delivered pursuant to this Agreement.


 


"Assets"
of any Person means all assets and properties of every kind, nature, character and description (whether real, personal
or mixed, whether tangible or intangible and wherever situated), including the related goodwill, which assets and properties are operated,
owned or leased by such Person.


 


"Assigned
Contracts" means all Contracts set forth on Schedule 1.1-AC, which schedule may be updated prior to Closing with the
mutual written agreement of the Parties. The Assigned Contracts shall include the Third Party Contracts.


 


"Assignment
and Assumption Agreements" means, collectively, an assignment and assumption agreement for each Assigned Contract,
in a form acceptable to Buyer.


 


"Assumed
Liabilities" has the meaning given to it in Section 2.2.


 


"Base
Purchase Price" has the meaning given to it in Section 2.4.


 


"BEA"
has the meaning given to it in Section 5.2(b).


 


"Benefit
Plan" means all written and unwritten "employee benefit plans" within the meaning of Section 3(3) of
ERISA, and any other written and unwritten profit sharing, pension, savings, deferred compensation, fringe benefit, insurance, medical,
medical reimbursement, life, disability, accident, post-retirement health or welfare benefit, stock option, stock purchase, sick pay,
vacation, employment, severance, termination or other plan, agreement, Contract, policy, trust fund or arrangement covering any employee,
director or officer of Seller and which is established, maintained, sponsored, contributed to or entered into by Seller or with respect
to which Seller has or may have any liability.


 


"Budget"
means the major maintenance and capital expenditures budget estimates for Seller for the period from the date hereof until December 31,
2025, as set forth in Schedule 1.1-B.


 






    2 


     


    

 


"Business"
means the ownership and operation of the Project as currently conducted, including the generation and sale of electricity
and capacity and electric-related products by Seller or any of its Affiliates at or from the Project as currently conducted, the receipt
by Seller of fuel and the conduct of other activities by Seller related or incidental to the foregoing all as currently conducted.


 


"Business
Day" means a day other than Saturday, Sunday or any day on which banks located in the State of Michigan are authorized
or obligated to close.


 


"Buyer"
has the meaning given to it in the introduction to this Agreement.


 


"Buyer
Approvals" means the filings, waivers, approvals, consents, authorizations and notices set forth in Schedule 1.1-BA,
all in form and content satisfactory to Buyer and not subject to appeal or further appeal.


 


"Buyer
Indemnified Parties" has the meaning given to it in Section 9.1(a).


 


"Buyer's
Advisors" has the meaning given to it in Section 5.2(a).


 


"Buyer's
Determination" has the meaning given to it in Section 2.8(a).


 


"Casualty
Loss" has the meaning given to it in Section 5.11.


 


"Claim"
means any demand, claim, action, investigation, legal proceeding (whether at law or in equity) or arbitration.


 


"Claiming
Party" has the meaning given to it in Section 9.5(a).


 


"Closing"
means the closing of the transactions contemplated by this Agreement, as provided for in Section 2.5.


 


"Closing
Certificates" means the officer's certificates referenced in Section 6.3 and Section 7.3.


 


"Closing
Date" means the date on which Closing occurs.


 


"Closing
Date Net Working Capital" means the aggregate Net Working Capital of Seller as of the Closing Date.


 


"CMS
ERM" has the meaning given to it in the introduction to this Agreement.


 


"CMS
GMP" has the meaning given to it in the introduction to this Agreement.


 


"Code"
means the Internal Revenue Code of 1986, as amended.


 


"Condemnation
Value" has the meaning given to it in Section 5.12.


 


"Confidentiality
Agreement" means the CEC 2021 Asset RFP Agreement of Confidentiality between Consumers Energy Company and CMS Enterprises
Company dated as of January 19, 2021.


 






    3 


     


    

 


"Contract"
means any legally binding contract, lease, license, evidence of Indebtedness, mortgage, indenture, purchase order, binding
bid, letter of credit, security agreement or other legally binding arrangement, but shall exclude Permits.


 


"Controlled
Group Liability" means any and all Liabilities under (i) Title IV of ERISA, (ii) Section 302 of ERISA,
(iii) Sections 412 and 4971 of the Code, or (iv) the continuation coverage requirements of Section 601 et seq. of ERISA
and Section 4980B of the Code.


 


"Deductible
Amount" has the meaning given to it in Section 9.2(b).


 


"DIG"
has the meaning given to it in the introduction to this Agreement.


 


"DOE"
means the United States Department of Energy.


 


"Employees"
has the meaning given to it in Section 3.18(b).


 


"Endorsements"
has the meaning given to it in Section 5.23(a).


 


"Environmental
Claim" means any Claim or Loss arising out of or related to any violation of, or any Liability or obligation under,
any Environmental Law.


 


"Environmental
Law" means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.;
the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251
et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 through 2629;
the Oil Pollution Act, 33 U.S.C. § 2701 et seq.; the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11001 et
seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300f through 300j; implementing regulations under each of the foregoing; and
all similar Laws (including implementing regulations) of any Governmental Authority having jurisdiction over the assets in question addressing
pollution control or protection of public health or the environment. For purposes of this Agreement, the term "Environmental Law"
does not include Laws respecting occupational health and safety.


 


"Environmental
Liability" means any Loss arising from or relating to any asserted violation of or adjudicated Liability under Environmental
Law, including: (a) any environmental matters or conditions (including on-site or off-site contamination, and regulation of chemical
substances or products); and (b) any responsibility for response costs, natural resource damages, corrective action or actions to
achieve compliance, including any cleanup, removal, containment or other remediation or response action ("cleanup"). The terms
 "removal," "remedial," and "response action" include the types of activities covered by the Federal Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., as amended, or analogous state statute applicable
to Seller.


 


"Equity
Interests" 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, or distribution of
assets of, the issuing entity.


 


"Equity
Securities" means (i) Equity Interests, (ii) subscriptions, calls, warrants, options or commitments of any
kind or character relating to, or entitling any Person to acquire, any Equity Interests and (iii) securities convertible into or
exercisable or exchangeable for Equity Interests.


 






    4 


     


    

 


"ERISA"
means the Employee Retirement Income Security Act of 1974.


 


"ERISA
Affiliate" means any entity, trade or business that is a member of a group described in Section 414(b) or
(c) of the Code or Section 4001(b)(1) of ERISA that includes Seller, or that is a member of the same "controlled group"
as Seller pursuant to Section 4001(a)(14) of ERISA.


 


"Estimated
Closing Date Net Working Capital" has the meaning given to it in Section 2.7(a).


 


"Estoppel Certificates"
shall mean: (i) an estoppel certificate in a form acceptable to Buyer signed by the current owner of the land located at 2400 Miller
Road, Dearborn, Michigan and (ii) an estoppel certificate in a form acceptable to Buyer signed by Ford Motor Company.


 


"Excluded
Liabilities" means all Liabilities of Seller or its Affiliates of every kind or nature whatsoever (including Tax Liabilities
and any related party Liabilities) other than Assumed Liabilities.


 


"FERC"
means the Federal Energy Regulatory Commission or its successor Governmental Authority.


 


"Financial
Statements'' means, in relation to any Person, such Person's balance sheet and the related statements of income for the
period then ended.


 


"Final
Closing Date Net Working Capital" has the meaning given to it in Section 2.8(c).


 


"FPA"
means the Federal Power Act, as amended,
and FERC's implementing regulations promulgated thereunder.


 


"Fundamental
Representations" has the meaning given to it in Section 9.2(a).


 


"GAAP"
means generally accepted accounting principles in the United States of America.


 


"Governmental
Authority" means the United States and any state, county, city or other political, subdivision or similar governing
entity, and any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of the United States or
any state, county, city or other political subdivision or similar governing entity, and including any governmental, quasi-governmental
or non-governmental body administering, regulating or having general oversight over natural gas, electricity, power or other markets,
including NERC.


 


"Hazardous
Material" means any substance designated as a hazardous waste, hazardous substance, extremely hazardous substance,
hazardous material, hazardous chemical, pollutant, contaminant or toxic chemical under any Environmental Law, any petroleum or petroleum
products, any radioactive material, any asbestos or any materials containing asbestos, and any urea
formaldehyde or polychlorinated biphenyls.


 






    5 


     


    

 


"Indebtedness"
means any of the following: (a) any indebtedness for borrowed money; (b) any obligations evidenced by bonds,
debentures, notes or other similar instruments; (c) any obligations to pay the deferred purchase price of property or services, except
trade accounts payable and other current Liabilities arising in the ordinary course of business consistent with past practices; (d) any
obligations as lessee under capitalized leases; (e) any obligations, contingent or otherwise, under acceptance, letters of credit
or similar facilities; and (f) any guaranty of any of the foregoing.


 


"Indemnified
Parties" has the meaning given to it in Section 9.1(b).


 


"Indemnifying
Party" means a Person required to indemnify a Seller Indemnified Party or a Buyer Indemnified Party, as the case may
be, pursuant to the terms of this Agreement.


 


"Independent
Accountants" has the meaning given to it in Section 2.8(b).


 


"Intellectual
Property" means the following intellectual property rights, both statutory and common law rights, if applicable: (a) copyrights,
registrations and applications for registration thereof, (b) trademarks, service marks, trade names, slogans, domain names, logos,
trade dress, and registrations and applications for registrations thereof, (c) patents, as well as any reissued and reexamined patents
and extensions corresponding to the patents, and any patent applications, as well as any related continuation, continuation in part and
divisional applications and patents issuing therefrom and (d) trade secrets and confidential information, including ideas, designs,
concepts, compilations of information, methods, techniques, procedures, processes and other know-how, whether or not patentable.


 


"Interim
Period" has the meaning given to it in Section 5.1.


 


"Knowledge"
when used in a particular representation in this Agreement with respect to Seller, means the actual knowledge, after reasonable
inquiry, of the individuals listed on Schedule 1.1-K with respect to matters within the scope of their respective functional responsibilities
listed therein.


 


"Laws"
means (i) all laws, statutes, rules, regulations, ordinances, orders, decrees and court decisions of any Governmental
Authority; (ii) other pronouncements of any Governmental Authority having the effect of law; and (iii) for the avoidance of
any doubt, and whether or not falling within either or both of the preceding clauses (i) and (ii), all FERC-, NERC-, DOE-, and/or
MISO-related requirements.


 


"Liabilities"
means liabilities or obligations of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or
unaccrued, matured or unmatured or otherwise.


 


"Lien"
means any mortgage, pledge, deed of trust, assessment, security interest, charge, lien, option, restriction, easement,
interest, lease, covenant, reservation, purchase right, right of first refusal, or other encumbrance of any nature whatsoever.


 






    6 


     


    

 


"Loss"
or "Losses" means any and all judgments, losses, Liabilities, amounts paid in settlement, damages, fines, penalties,
deficiencies, costs, charges, Taxes, obligations, demands, fees, interest, losses and expenses (including court costs and reasonable fees
of attorneys, accountants and other experts in connection with any Claim). For all purposes in this Agreement the term "Losses"
does not include any Non-reimbursable Damages.


 


"Material
Adverse Effect" means a material adverse effect on the business, financial condition or results of operations of:
(a) Seller or the Assets of Seller; or (b) the Buyer, as the case may be based on the relevant provision of this Agreement.


 


"Material
Contracts" has the meaning given to it in Section 3.12(a).


 


"MISO"
means Midcontinent Independent System Operator, Inc. or any other applicable independent system operator or interconnecting
utility with respect to the Project, and any successors.


 


"MPSC"
means the Michigan Public Service Commission or its successor Governmental Authority.


 


"NERC"
means the North American Electric Reliability Corporation or its successor Governmental Authority, and includes any applicable
regional entity (such as ReliabilityFirst Corporation) having authority over Seller or the Project.


 


"Net
Working Capital" means, as of the applicable date and without duplication, the amount (expressed as a positive or
negative number) determined by subtracting (a) the aggregate value of the current liabilities of the Business that are included in
the Assumed Liabilities from (b) the aggregate value of the current assets of the Business that are included in the Purchased Assets,
as calculated in accordance with the formula and methodology (including adjustments) as described in, and used in the preparation of,
and only applying values to the categories of listed assets and liabilities as set forth in, Schedule 1.1-A. 
Schedule 1.1-A, which is a sample calculation of Net Working Capital as of March 31, 2020, is solely for illustrative purposes.


 


"Non-reimbursable
Damages" has the meaning given to it in Section 9.4(b).


 


"NPDES
Permit" has the meaning given to in Section 6.9.


 


"Organizational
Documents" means, with respect to any Person, the articles or certificate of incorporation or organization and by-laws,
the limited partnership agreement, the partnership agreement or the limited liability company agreement, or such other organizational
documents of such Person, including those that are required to be registered or kept in the place of incorporation, organization or formation
of such Person and which establish the legal personality of such Person.


 


"Owner’s
Affidavit" has the meaning given to it in Section 2.6(g).


 


"Parties"
means collectively, Buyer and Seller.


 


"Permits"
means all licenses, permits, certificates of authority, authorizations, approvals, registrations, franchises and similar
consents and orders issued or granted by a Governmental Authority.


 






    7 


     


    

 


"Permitted
Lien" means (a) any statutory Lien for Taxes not yet due or delinquent or being contested in good faith by appropriate
proceedings; (b) the matters identified on Schedule 1.1-PL (except, at Closing, those items marked with an asterisk on such Schedule);
(c) easements and restrictions that would be shown by an accurate survey that do not and will not have an adverse effect on the operation
of the Business or the value of the property in question; (d) zoning, entitlement, conservation restriction and other land use and
environmental regulations or rights imposed or granted by any Governmental Authority; (e) the rights of the Parties pursuant to this
Agreement; and (f) such other easements, restrictions, encroachments, and use limitations, that do not and will not have an adverse
effect on the operation of the Business or the value of the property in question.


 


"Person"
means any natural person, corporation, general partnership, limited partnership, limited liability company, proprietorship,
other business organization, trust, union, association or Governmental Authority.


 


"Project"
means the electric generating facilities and all equipment, machinery, facilities, improvements and infrastructure used
in connection therewith or in any way related thereto located at the Property and included in the Purchased Assets.


 


"Property"
means the real property (whether owned or leased) on which the Project is located, as further described in Exhibit 2.1(a),
including any improvements thereon and easements and rights-of-way appertaining thereto.


 


"Property
Tax Lien Date" means, with respect to any calendar year, July 1 and December 1 of that calendar year.


 


"Property
Taxes" means real and personal property taxes, special assessments and any payments in lieu of property taxes or under
any other arrangements with the Taxing Authority.


 


"Prudent
Engineering and Operating Practices" means the standards, practices, methods, procedures and acts which (a) conform
with such degree of skill, diligence, prudence and foresight as would reasonably be expected from a skillful and experienced operator
of a power station of similar type to the Project with a view to profit-making therefrom, and (b) would reasonably be expected to
be applied by such Person exercising reasonable judgment in light of the facts known or that should have been known at the time a decision
was made to accomplish the desired result in an efficient and workman-like manner consistent with Laws.


 


"Purchased
Assets" has the meaning given to it in Section 2.1.


 


"Purchase
Price" has the meaning given to it in Section 2.4.


 


"Purchase
Price Reduction" has the meaning given to it in Section 6.9.


 


"Purchase
Price Allocation Schedule" has the meaning given to it in Section 2.10(a).


 


"Recorded
Documents" has the meaning given to it in Section 5.22(a).


 


"Release"
means any release, spill, emission, migration, leaking, pumping, injection, deposit, disposal or discharge of any Hazardous
Materials.


 






    8 


     


    

 


"Remediation
Indemnity Obligations" has the meaning given to it in Section 6.9.


 


"Remediation
Obligations" has the meaning given to it in Section 6.9.


 


"Representatives"
means, as to any Person, its officers, directors, partners, members, and employees.


 


"Responding
Party" has the meaning given to it in Section 9.5(a).


 


"Restoration
Cost" has the meaning given to it in Section 5.11.


 


"Schedules"
means the disclosure schedules prepared by Seller and attached to this Agreement.


 


"Seller''
has the meaning given to it in the introduction to this Agreement.


 


"Seller
Approvals" has the meaning given to it in Section 3.3(c).


 


"Seller
Consents" means the consents set forth in Schedule 3.3(b).


 


"Seller
Indemnified Parties" has the meaning given to it in Section 9.1(b).


 


"Survey"
has the meaning given to it in Section 5.22(b).


 


"Tax"
or "Taxes" means (a) any federal, state, local or foreign income, gross receipts, ad valorem,
sales and use, employment, social security, disability, occupation, industrial facilities, property, severance, value added, transfer,
capital stock, excise, withholding, premium, occupation or other taxes, levies or other like assessments, customs, duties, imposts, charges
surcharges or fees imposed by or on behalf of any Governmental Authority, including any interest, penalty or addition thereto and (b) any
Liability for amounts described in clause (a), (i) as a result of transferee Liability, (ii) by Contract or (iii) otherwise.


 


"Tax
Return" means any return, declaration, report, form, claim for refund, statement or other information (including any amendments)
required to be supplied to any Governmental Authority with respect to Taxes, including information returns, any amendments thereof or
schedule or attachment thereto, including any such document prepared on a consolidated, combined or unitary basis and also including any
schedule or attachment thereto, and including any amendment thereof.


 


"Taxing
Authority" means, with respect to any Tax, the governmental entity or political subdivision thereof that imposes such
Tax and the agency (if any) charged with the collection of such Tax for such entity or subdivision.


 


"Terminated
Contracts" has the meaning given to it in Section 5.4.


 


"Third
Party Contracts" has the meaning given to it in Section 2.9(e).


 


"Title
Commitment" has the meaning given to it in Section 5.22(a).


 


"Title
Insurer" has the meaning given to it in Section 5.22(a).


 






    9 


     


    

 


"Title
Objection" has the meaning given to it in Section 5.23(b).


 


"Title
Policy" has the meaning given to it in Section 6.8.


 


"Transfer
Taxes" means any and all transaction, transfer, sales, use, goods and services, recording, transaction privilege,
real property transfer, stock transfer, value added, documentary, stamp duty, gross receipts, excise, transfer and conveyance Taxes and
other similar Taxes, duties, fees or charges, including any related penalties, interest and additions thereto, to any Taxing Authority
as a result of the transfer of the Project Assets from Seller to Buyer.


 


"Transfer Tax Affidavits"
has the meaning given to it in Section 2.6(f).


 


"Warranty
Deed" has the meaning given to it in Section 2.6(e).


 


"Water
Limit Obligations" has the meaning given to it in Section 6.9.


 


"ZRC"
means Zonal Resource Credit.


 


		Section 1.2.	Rules of Construction.



 


(a)         All
article, section, subsection, schedule and exhibit references used in this Agreement are to articles, sections, subsections, schedules
and exhibits to this Agreement unless otherwise specified. The 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. The words "includes" or "including" shall mean "including without limitation,"
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. Currency amounts referenced
in this Agreement are in U.S. Dollars.


 


(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.


 






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ARTICLE II. PURCHASE AND SALE AND CLOSING


 


Section 2.1. Purchase
and Sale.


 


On the terms and subject to
the conditions set forth in this Agreement, at the Closing, Buyer agrees to purchase from Seller, and Seller agrees to sell to Buyer,
all of the Assets used in the Business, including without limitation, the Assets described in Exhibit 2.1(a) and the Property,
together with all improvements, buildings, structures, fixtures, easements, rights-of-way, division rights, hereditaments and appurtenances
associated with that real property, all as described in Exhibit 2.1(a) (collectively, the "Purchased Assets"),
together with exclusive possession thereof. Notwithstanding the previous sentence, the Purchased Assets will not include the Assets listed
on Exhibit 2.1(b) (the "Excluded Assets"). The Purchased Assets will be transferred to Buyer free and
clear of all Liens, except for Permitted Liens. For purposes of greater clarity, the only assets of CMS ERM included in the Purchased
Assets are the Third Party Contracts as defined in Section 2.9(e).


 


Section 2.2. Assumed
Liabilities.


 


Subject to the terms and conditions
set forth herein, Buyer shall assume and agree to pay, perform and discharge only the following Liabilities of Seller (collectively, the
"Assumed Liabilities"), and no other Liabilities:


 


(a)            all
trade accounts payable of Seller to third parties in connection with the Business that remain unpaid and are not delinquent as of the
Closing Date and that are reflected in the Closing Date Net Working Capital;


 


(b)            all
Liabilities in respect of the Assigned Contracts but only to the extent that such Liabilities thereunder are required to be performed
after the Closing Date, were incurred in the ordinary course of business and do not relate to any failure to perform, improper performance,
warranty or other breach, default or violation by Seller on or prior to the Closing Date; and


 


(c)            all
Liabilities in respect of Permits, easements, rights-of-way, division rights, hereditaments and appurtenances included in the Purchased
Assets that are required to be performed after the Closing Date and do not relate to any failure to perform, improper performance, breach,
default or violation by Seller on or prior to the Closing Date; for the avoidance of doubt, Buyer is not assuming any Liabilities of Seller
relating to violations of any applicable Laws by Seller on or prior to the Closing Date.


 


Section 2.3. Excluded
Liabilities.


 


Notwithstanding the provisions
of Section 2.2 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay,
perform or discharge any Excluded Liabilities. Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course
all Excluded Liabilities which they are obligated to pay and satisfy.


 






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Section 2.4. Purchase
Price.


 


The purchase price (the "Purchase
Price") for the purchase and sale described in Section 2.1 is equal to $515,000,000 (the "Base Purchase Price"),
as adjusted pursuant to Sections 2.7(a), 2.8, 2.9, and 6.9 (if applicable).


 


Section 2.5. Closing.


 


The Closing shall take place
at the offices of Consumers Energy Company, One Energy Plaza, Jackson, MI 49201 or via electronic exchange of documents at 10:00 A.M. local
time, on (a) the later of (i) the tenth Business Day after the conditions to Closing set forth in ARTICLE VII and ARTICLE VIII
(other than actions to be taken or items to be delivered at Closing) have been satisfied or waived and (ii) April 30, 2025 or
(b) such other date and at such other time as Buyer and Seller mutually agree in writing. All actions listed in Section 2.6
or Section 2.7 that occur on the Closing Date shall be deemed to occur simultaneously at the Closing.


 


Section 2.6. Closing
Deliveries by Seller to Buyer.


 


At the Closing, Seller shall
deliver, or shall cause to be delivered, to Buyer


 


(a)            a
certification of non-foreign status in the form prescribed by Treasury Regulation Section 1.1445-2(b) with respect to Seller,
and with respect to the owner of Seller if Seller is treated as a disregarded entity for federal income Tax purposes. If, on or before
the Closing Date, Buyer shall not have received the non-foreign status affidavit(s), Buyer may withhold from the Purchase Price payable
at Closing to Seller pursuant hereto such sums as are required to be withheld therefrom under Code Section 1445;


 


(b)            [Intentionally
Omitted]


 


(c)            Copies
of relevant title documents set forth in Sections 5.22 and 5.23;


 


(d)            a
bill of sale reasonably acceptable to Buyer and duly executed by Seller, conveying title to all of such Seller's owned personal property
included in the Purchased Assets;


 


(e)            warranty
deeds reasonably acceptable to Buyer and duly executed by Seller, conveying good and marketable title to the Property to Buyer, subject
only to the Permitted Liens (each a "Warranty Deed" and collectively, the "Warranty Deeds");


 


(f)             real
estate transfer tax valuation affidavits (the "Transfer Tax Affidavits") in form and substance reasonably acceptable
to Buyer;


 


(g)            affidavits
reasonably acceptable to Buyer (each an "Owner's Affidavit" and collectively, the "Owner’s Affidavits")
for the removal of standard printed exceptions on each Title Policy; provided however, Seller agrees to modify such Owner's Affidavits
as reasonably requested by the Title Insurer to make each such Owner's Affidavit consistent with the Title Insurer's standard Owner's
Affidavit for similar transactions at the time of the Closing;


 


(h)            such
other affidavits and agreements required by the Title Insurer to issue the Title Policies;


 






    12 


     


    

 


(i)             resolutions
of the managers, members, directors and shareholders of Seller authorizing the transactions contemplated by this Agreement;


 


(j)             releases
of any security interest or similar Liens held on any of the Purchased Assets (other than Permitted Liens);


 


(k)            the
certificate referenced in Section 7.3;


 


(l)             the
Assignment and Assumption Agreements duly executed by Seller and any other counterparties;


 


(m)            the
resignations and removals referenced in Section 6.6;


 


(n)            Promptly
after the date of this Agreement, Seller shall obtain and provide to Buyer the Estoppel Certificates. No earlier than 60 days prior to
the Closing Date, Seller shall provide Buyer updated Estoppel Certificates with an effective date no earlier than 60 days prior to the
Closing Date; and


 


(o)            such
other customary instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to Buyer, as
may be required to give effect to this Agreement.


 


Section 2.7. Closing
Deliveries by Buyer to Seller.


 


At the Closing, Buyer shall
deliver to Seller the following:


 


(a)            a
wire transfer of immediately available funds (to such account or accounts as Seller shall have notified Buyer of at least 2 Business Days
prior to the Closing Date) in an amount equal to the sum of: (i) the Base Purchase Price, plus (ii) the Parties' mutually-agreed-upon
estimate of the Closing Date Net Working Capital (the "Estimated Closing Date Net Working Capital") (it being
understood that if Buyer and Seller are unable to mutually agree, despite good faith efforts to do so, then the Estimated Closing Date
Net Working Capital shall equal the average of Seller's and Buyer's respective estimates of Closing Date Net Working Capital), minus
(iv) any amounts owing or payable by Seller under Section 5.8; and (v) plus or minus the adjustment set
forth in Section 2.9; and


 


(b)            an
executed counterpart by Buyer of each other Ancillary Agreement to which Buyer is a party.


 


Section 2.8. Post-Closing
Adjustment.


 


(a)            After
the Closing Date, Seller and Buyer shall cooperate and provide each other access to their respective books, records and employees as are
reasonably requested in connection with the matters addressed in this Section 2.8. Within 60 days after the Closing Date, Buyer shall
determine the Closing Date Net Working Capital and shall provide Seller with written notice of such determination, along with reasonable
supporting information and calculations (the "Buyer's Determination").


 






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(b)            If
Seller objects to Buyer's Determination, then it shall provide Buyer written notice thereof within 30 days after receiving Buyer's Determination;
provided that Seller and Buyer shall be deemed to have agreed upon all items and amounts that are not disputed by Seller in such written
notice. If the Parties are unable to agree on the Closing Date Net Working Capital, within 120 days after the Closing Date, the Parties
shall refer such dispute to a firm of nationally recognized independent public accountants mutually acceptable to Buyer and Seller (the
"Independent Accountants"), which firm shall make a final and binding determination as to only those matters in
dispute with respect to this Section 2.8(b) on a timely basis and promptly shall notify the Parties in writing of its resolution.
The Independent Accountants shall not have the power to modify or amend any term or provision of this Agreement. The Parties shall equally
bear and pay the fees and other costs charged by the Independent Accountants. If Seller does not object to Buyer's Determination within
the time period and in the manner set forth in the first sentence of this Section 2.8(b) or if Seller accepts Buyer's Determination,
the Closing Date Net Working Capital as set forth in Buyer's Determination shall become final and binding upon the Parties for all purposes
hereunder.


 


(c)            If
the Closing Date Net Working Capital (as agreed between the Parties or as determined by the Independent Accountants or otherwise) (the
"Final Closing Date Net Working Capital") is greater than the Estimated Closing Date Net Working Capital, then
Buyer shall pay the amount of such excess to Seller, within 5 Business Days after such amounts are agreed or determined pursuant to Section 2.8(b),
by wire transfer of immediately available funds to an account designated by Seller. If the Final Closing Date Net Working Capital is less
than the Estimated Closing Date Net Working Capital, then Seller shall pay the amount of such deficiency to Buyer within 5 Business Days
after such amounts are agreed or determined pursuant to Section 2.8(b), by wire transfer of immediately available funds to an account
designated by Buyer.


 


Section 2.9. Purchase
Price Adjustment Based on Capacity and Third Party Contracts.


 


(a)            The
Base Purchase Price is based on the capacity of the Project recognized by MISO for the applicable planning period and made available by
Seller for sale to Buyer for the applicable Planning Years as set forth in the chart below. These capacity amounts of the Purchased Assets
reflect Seller’s existing commitments for the provision of capacity from the Purchased Assets to third parties:


 


	Planning Year	2025	2026	2027	2028	2029	2030	2031	2032	2033	2034	2035	2036	2037	2038	2039
	Capacity (ZRC)	358	482	480	596	688	739	739	789	800	800	828	828	828	828	828


 


(b)            To
accommodate Seller's desire to provide capacity for additional sales to third parties from the Purchased Assets prior to Closing, the
following formula will be used to adjust the Purchase Price paid at Closing (subject to the limitations on additional sales in Section 2.9(c)):


 


Purchase Price Adjustment = ZRCs of
capacity sold per year x ($71,250 – price of capacity sale in $/ZRC-year)


 






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(c)            Seller
may only provide capacity for sales of additional amounts of capacity from the Purchased Assets prior to Closing as set forth below. Any
revenues for such sales will be for the benefit of Buyer.


 


		1.	MISO Planning Year 2025 (June 1, 2025 through May 31, 2026) = 0 ZRCs






		2.	MISO Planning Year 2026 (June 1, 2026 through May 31, 2027) = 0 ZRCs






		3.	MISO Planning Years 2027 through 2039 (June 1, 2027 through May 31, 2040) = 45 ZRCs each year



 


(d)            If
Seller or its Affiliates reacquire some or all of the capacity that was sold to third parties up to the amounts shown in the chart below
(reacquired capacity amounts no more than those amounts sold by year), then the Purchase Price will be increased by the following formula
as long as the reacquired capacity is fully available to Buyer at Closing.


 


	Planning Year	2025	2026	2027	2028	2029	2030	2031	2032	2033	2034	2035	2036	2037	2038	2039
	Capacity (ZRC)	93	97	99	23	23	28	28	28	28	28	0	0	0	0	0


 


Purchase Price Increase =
ZRCs Reacquired (up to 475 ZRCs) x $20,250/ZRC-year.


 


For the avoidance of doubt,
the June 1 – May 31 timing above covers either a planning year (under the current MISO construct) or any subset of the
planning periods occurring within that 365-day period.


 


(e)            At
Closing, contracts of DIG and CMS GMP for the provision of capacity and energy from the Purchased Assets to CMS ERM shall be terminated.
At Closing, CMS ERM shall use commercially reasonable efforts to assign to Buyer CMS ERM’s contracts for the sale of capacity and
energy to third parties which rely on capacity and energy from the Purchased Assets for time periods after Closing (“Third Party
Contracts”) and such Third Party Contracts shall be included in the Assigned Contracts, and Buyer will be responsible to provide
capacity and energy under the assigned Third Party Contracts, and the associated costs, from the Purchased Assets. Buyer shall be entitled
to receive all revenues associated with the sales of capacity and energy from the Purchased Assets under the assigned Third Party Contracts.


 


Section 2.10. Allocation
of Purchase Price.


 


(a)            Within
30 days after the Closing Date, Buyer shall deliver to Seller a schedule allocating the Purchase Price (and all other capitalized costs)
among the Purchased Assets, grouped by the seven asset classes referred to in Treasury Regulations Section 1.1060- 1(c) (the
"Purchase Price Allocation Schedule"). Buyer shall permit Seller thirty (30) days to review and comment on Buyer's
proposed Purchase Price Allocation Schedule. Buyer shall make such revisions to its proposed Purchase Price Allocation Schedule as are
reasonably requested by Seller within such 30-day period and shall deliver to Seller a final Purchase Price Allocation Schedule within
fifteen (15) days of receiving Seller's comments. The Purchase Price Allocation Schedule shall be revised to take into account subsequent
adjustments to the Purchase Price, including the Final Closing Date Net Working Capital and any indemnification payments (which shall
be treated for Tax purposes as adjustments to the Purchase Price), as mutually agreed by the Parties and in accordance with the provisions
of Section 1060 of the Code and the Treasury Regulations thereunder.


 






    15 


     


    

 


(b)            The
Parties shall report the transaction for federal and state income Tax purposes on IRS Form 8594 in accordance with the Purchase Price
Allocation Schedule described in Section 2.7(a). Neither Party will take a position inconsistent with such allocation except with
the written consent of the other Party. Each of Seller and Buyer agrees to provide the other promptly with any other information required
to complete Form 8594.


 


(c)            If
the Parties are unable to agree on the Purchase Price Allocation Schedule pursuant to Section 2.10(a) or any subsequent adjustment
to the Purchase Price Allocation Schedule, the Parties shall refer such dispute to the Independent Accountants, which firm shall make
a final and binding determination as to all matters in dispute with respect to this Section 2.10(and only such matters) on a timely
basis and promptly shall notify the Parties in writing of its resolution. The Independent Accountants shall not have the power to modify
or amend any term or provision of this Agreement. Each Party shall bear and pay one-half of the fees and other costs charged by the Independent
Accountants with respect to its activities under this Section 2.10.


 


ARTICLE III. REPRESENTATIONS AND WARRANTIES
OF SELLER


 


Except as otherwise disclosed
in the Schedules delivered by Seller to Buyer corresponding to the particular section or subsection contained in this Article III
(it being understood that disclosure for one section shall be deemed to be disclosure for any other section as to which the applicability
is reasonably apparent from the face of the disclosure), Seller hereby represents and warrants to Buyer, as of the date hereof and as
of the Closing (except where such representation or warranty is expressly made as of another specific date), as follows:


 


Section 3.1. Organization.


 


DIG is a Michigan limited
liability company validly existing and in good standing under the Laws of its jurisdiction of formation. CMS GMP is a Michigan limited
liability company validly existing and in good standing under the Laws of its jurisdiction of formation. CMS ERM is a Michigan corporation
validly existing and in good standing under the Laws of its jurisdiction of incorporation. Seller is duly qualified or licensed to do
business in each other jurisdiction where the actions to be performed by it hereunder makes such qualification or licensing necessary,
except in those jurisdictions where the failure to be so qualified or licensed would not reasonably be expected to result in a Material
Adverse Effect on Seller's ability to perform such actions under this Agreement or the Ancillary Agreements to which Seller is party.


 


Section 3.2. Authority;
Enforceability.


 


Seller has all requisite corporate
or limited liability company power and authority, as applicable, to execute and deliver this Agreement and the Ancillary Agreements to
which Seller is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and
thereby. The execution and delivery by Seller of this Agreement and the Ancillary Agreements 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 and limited liability
company action, as applicable. This Agreement has been duly and validly executed and delivered by Seller and constitutes, and each Ancillary
Agreement to which Seller is a party when executed and delivered on the Closing Date will constitute, 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, moratorium
or other similar Laws relating to or affecting the rights of creditors generally, or by general equitable principles.


 






    16 


     


    

 


Section 3.3. No
Conflicts; Consents and Approvals.


 


The execution and delivery
by Seller of this Agreement and the Ancillary Agreements to which Seller is a party do not, and the performance by Seller of its obligations
under this Agreement and 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;


 


(b)            assuming
all of the Seller Consents set forth in Schedule 3.3(b) have been obtained, 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 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 Seller's
ability to perform its obligations hereunder; and


 


(c)            assuming
all required filings, waivers, approvals, consents, authorizations and notices set forth on Schedule 3.3(c) (collectively, the "Seller
Approvals"), Seller Consents and other notifications provided in the ordinary course of business have been made, obtained
or given, (i) conflict with, violate or breach any term or provision of any Law applicable to Seller; 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.


 


Section 3.4. [Intentionally
Omitted.]


 


Section 3.5. Brokers.


 


Seller has no Liability or
obligation to pay fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement for
which Buyer could become liable or obligated.


 


Section 3.6. Legal
Proceedings.


 


No Claim is pending against
Seller, Seller has not been served with notice of any Claim, and to Seller's Knowledge, none has been threatened against Seller that (a) affects
Seller or the Assets of Seller and would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect
with respect to Seller or the Assets of Seller or (b) seeks a writ, judgment, order, injunction or decree restraining, enjoining
or otherwise prohibiting or making illegal any of the transactions contemplated by this Agreement.


 






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Section 3.7. Compliance
with Laws and Orders.


 


Seller is, in all material
respects, in compliance with all Laws applicable to it and its operations or Purchased Assets, including the Project.


 


Section 3.8. Financial
Statements; No Undisclosed Liabilities.


 


Seller has previously delivered
to Buyer the Financial Statements of Seller as of and for the fiscal years ended December 31, 2019 and December 31, 2020, and
unaudited Financial Statements of Seller as of and for the three months then ended March 31, 2021. The Financial Statements have
been prepared in accordance with GAAP. Seller has no Liability that would be required to be reflected on any Financial Statement which
is not reflected or reserved against in such Financial Statement.


 


Section 3.9. Absence
of Certain Changes.


 


Since December 31, 2020,
Seller has operated in the ordinary course of business, consistent with past practices and there has not been any (a) Material Adverse
Effect with respect to Seller or the Assets of Seller or (b) event or condition that would reasonably be expected to prevent or delay
Seller from consummating the transactions contemplated by this Agreement.


 


Section 3.10. Taxes.


 


(a)            All
Tax Returns that are required to be filed on or before the Closing Date by Seller have been or will be duly and timely filed, taking into
account all permitted extensions, and are true, correct and complete in all material respects, (b) all Taxes required to be paid
by Seller with respect to the Purchased Assets (whether or not shown on any Tax Return) that are due and payable have been timely paid
in full, (c) all withholding Tax requirements imposed on Seller have been satisfied in full, except for amounts that are being contested
in good faith, (d) Seller does not have in force any waiver of any statute of limitations in respect of Taxes or any extension of
time with respect to a Tax assessment or deficiency, (e) there are no pending or active audits, examinations, Claims, assessments
or legal proceedings involving Tax matters or, to Seller's Knowledge, threatened audits or proposed deficiencies or other Claims for unpaid
Taxes of Seller, (f) Seller, with respect to the Purchased Assets, has no Liability for the Taxes of any other Person (i) as
a transferee or successor, (ii) by contract or (iii) otherwise, (g) Seller, under the federal check-the-box regulations,
is classified as an entity disregarded as separate from its owner for federal income Tax purposes and all applicable state income Tax
purposes and has been since inception, (h) there are no deficiencies asserted or assessments made as a result of any examination
of Tax Returns of Seller, (i) there are no Liens for Taxes (other than Permitted Liens) on any of the Assets of Seller, (j) with
respect to the Purchased Assets, there are no outstanding closing agreements, ruling requests, requests to change a method of accounting
or other matters pending with any Taxing Authority and (k) Seller is not a "tax-exempt
entity" or a "tax-exempt controlled entity" within the meaning of Section 168(h) of the Code. Seller will
provide copies of any correspondence with any Taxing Authority regarding Seller, the Business or Seller Assets for any Tax year still
open under the applicable statute of limitations, including but not limited to, any federal or state letter ruling requests or audit notices.


 






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Section 3.11. [Intentionally
Omitted]


 


Section 3.12. Contracts.


 


(a)            Schedule
3.12 sets forth a list as of the date of this Agreement of the following Contracts to which Seller is a party or by which the Assets of
Seller may be bound (Contracts that meet the descriptions in this Section 3.12 being collectively, the "Material Contracts"):


 


(i)              Contracts
for the purchase, exchange or sale of natural gas;


 


(ii)             Contracts
for the purchase, exchange, transmission or sale of electric power in any form, including energy, capacity or any ancillary services;


 


(iii)            Contracts
for the transportation of natural gas;


 


(iv)            interconnection
Contracts;


 


(v)             Contracts
for the purchase or sale of any Asset or that grant a right or option to purchase or sell any Asset;


 


(vi)            Contracts
for the provision or receipt of any work, goods or services or that grant a right or option to provide or receive any work, goods or services;


 


(vii)           Contracts
under which it has created, incurred, assumed or guaranteed any outstanding Indebtedness, or under which it has imposed a security interest
on any of its Assets, tangible or intangible, which security interest secures outstanding Indebtedness;


 


(viii)         any
collective bargaining Contracts or other employment Contracts;


 


(ix)            outstanding
futures, swap, collar, put, call, floor, cap, option or other Contracts that are intended to benefit from or reduce or eliminate the risk
of fluctuations in interest rates or the price of commodities, including electric power, in any form, including energy, capacity or any
ancillary services, natural gas or securities;


 


(x)             Contracts
that limit Seller's freedom to compete in any line of business or in any geographic area in connection with the Project;


 


(xi)            partnership,
joint venture, or limited liability company agreements;


 


(xii)           Contracts
that affect the Property including leases (including ground leases) or other land use agreements relating to the Property;


 


(xiii)          Contracts
with Governmental Authorities regarding Taxes, tax abatements, tax incentive agreements or any payments in lieu of Property Taxes or under
any other arrangements with a Taxing Authority, and water services; and


 






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(xiv)          any
other Contracts reasonably necessary for Seller to conduct its Business.


 


(b)            Seller
has provided Buyer with, or access to, copies of all Material Contracts.


 


(c)            Each
of the Material Contracts (other than any Material Contract which will terminate or expire by its terms prior to Closing without any further
Liability on the part of Seller) is in full force and effect and constitutes a legal, valid and binding obligation of Seller and, to Seller's
Knowledge, of the other parties thereto.


 


(d)            Seller
is not in breach or default under any Material Contract and, to Seller's Knowledge, no other party to any of the Material Contracts is
in breach or default thereunder nor has Seller given or received written notice to or from any Person relating to any alleged or potential
default that has not been cured, nor, has any event or circumstance occurred that, with notice or lapse of time or both, would constitute
an event of default thereunder.


 


Section 3.13. Ownership;
Liens.


 


(a)            Seller
has good and valid title to all of the Purchased Assets. The Purchased Assets are free and clear of Liens except for Permitted Liens.
The title insurance premium on each Title Policy has been paid and each Title Policy is in effect. The Property, the Project and the Business
comply with all applicable zoning, subdivision and land use Laws and special use Permits.


 


(b)            Seller
otherwise owns the Project and all other of the Purchased Assets free and clear of all Liens (except for Permitted Liens).


 


Section 3.14. Permits.


 


(a)            Schedule
3.14(a) sets forth all Permits held by Seller. Said Permits set forth on Schedule 3.14(a) constitute all Permits that are required
for the ownership and operation of the Project by Seller in the manner in which they are currently owned and operated. All Permits set
forth on Schedule 3.14(a) are in full force and effect.


 


(b)            Seller
is in compliance with all Permits set forth on Schedule 3.14(a) and Seller has not received any written notification from any Governmental
Authority alleging that it is in violation of any such Permits.


 


(c)            To
Seller's Knowledge, no event has occurred which with notice or lapse of time would constitute non-compliance with such terms and conditions
or cause any adverse modification, revocation, suspension or termination of any such Permit.


 


(d)            No
material action, or written deficiency notice, demand or notice of any challenge is pending or, to Seller's Knowledge, threatened, which
challenges the legality, validity or enforceability of any such Permit, or that attempts to modify in any manner the requirements pertaining
to any obtained Permit or application for a Permit.


 






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		Section 3.15.	Environmental Matters.



 


(a)        Seller has made available or disclosed to Buyer any knowledge of environmental
matters or copies of all assessments, notices of violation(s) or reports in the possession of Seller that relate to
environmental matters in connection with operation of the Project.


 


(b)          Seller
has constructed, owned and operated the Project, since its inception, in compliance with all applicable Environmental Laws, including
holding and complying with all Permits required under Environmental Laws for the ownership and operation of the Project, and Seller’s
representations and warranties under Section 3.14 apply with equal force to such Permits and are incorporated in this Section 3.15
by reference;


 


(c)      Except
as set forth in Schedule 3.15(f), Seller has not been served with notice of any Environmental Claims, actions, proceedings or investigations
that are currently outstanding, and no Environmental Claims are pending or, to Seller's Knowledge, threatened, against Seller by any Governmental
Authority or third party under any Environmental Laws;


 


(d)        there
is no site to which Seller has transported or arranged for the transport of Hazardous Materials associated with the Project which, to
Seller's Knowledge, is, or is threatened to become or otherwise likely to be, the subject of any Environmental Claim; and


 


(e)        there
has been no Release or threatened Release of any Hazardous Material at or from the Project in connection with construction of the Project
or any operations of or relating to the Project; and


 


(f)           Schedule
3.15(f) sets forth all emission reduction credits and emissions allowances that have been allocated to or are otherwise held by Seller
as of the date of this Agreement.


 


(g)          This
Section 3.15 contains the sole and exclusive representations and warranties of Seller with respect to environmental matters.


 


		Section 3.16.	Intellectual Property.



 


(a)          Seller
owns, or has permanent and indefeasible licenses or rights to use, all Intellectual Property currently used in or reasonably necessary
for the Business and otherwise for the operation and maintenance of the Project.


 


(b)          Seller
has not received from any third party a Claim in writing that Seller is infringing the Intellectual Property of such third party.


 


		Section 3.17.	[Intentionally Omitted.]



 


		Section 3.18.	Employees and Labor Matters.



 


(a)          Except
as identified on Schedule 3.18(a), Seller does not have any employees with respect to the Project;


 


(b)         the
persons identified on Schedule 3.18(b) provide full-time or recurring and continuous part-time on site services to Seller with respect
to the Project and are employed by a third party vendor pursuant to an agreement with such third-party vendor (persons identified on Schedules
3.18(a) and 3.18(b), collectively, the "Employees");


 






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(c)          Schedule
3.18(c) lists each Contract between a third-party vendor and Seller or any Affiliate of Seller pursuant to which employees of a third-party
vendor provide material on site employee services principally dedicated to Seller with respect to the Project;


 


(d)         there
has not occurred, nor, to Seller's Knowledge has there been threatened, a labor strike, request for representation, organizing campaign,
work stoppage, slowdown, or lockout or other labor dispute by or involving any of the Employees with respect to Seller in the past ten
years;


 


(e)        neither
Seller nor any of its Affiliates has received written notice of any unfair labor practice charge against Seller or any of its Affiliates
regarding practices/acts of Seller pending before the National Labor Relations Board; and neither Seller nor any of its Affiliates has
received notice that any petition respecting any Employees, or respecting any former employees of Seller or of its Affiliates or of a
third-party vendor who were principally dedicated to Seller, has been filed with the National Labor Relations Board;


 


(f)         neither
Seller nor any of its Affiliates have received any notice with respect to the Employees, or with respect to any former employees of Seller
or its Affiliates or a third-party vendor who were principally dedicated to Seller, of any charges before any Governmental Authority responsible
for the prevention of unlawful employment practices; and Seller and its Affiliates and, to Seller's Knowledge, any applicable third-party
vendor are in compliance with all applicable Laws respecting employment practices, occupational health and safety, labor relations, terms
and conditions of employment and similar Laws with respect to the Employees, and with respect to any former employees of Seller or its
Affiliates or, to Seller's Knowledge, of a third-party vendor who were principally dedicated to Seller; and


 


(g)          neither
Seller nor any of its Affiliates have received notice of any investigation related to the Employees, or related to any former employees
of Seller or its Affiliates or, to Seller's Knowledge, a third-party vendor who were principally dedicated to Seller, by a Governmental
Authority responsible for the enforcement of labor or employment Laws and regulations and, to Seller's Knowledge, no such investigation
is threatened.


 


		Section 3.19.	Employee Benefits.



 


(a)          Schedule
3.19 contains a complete list of all Benefit Plans. Complete copies of all Benefit Plans and of summary plan descriptions have been made
available to Buyer for review. Each Benefit Plan has been administered in accordance with its terms in all material respects and Seller
has met its obligations with respect to such Benefit Plan and has made all required contributions thereto. Seller and all Benefit Plans
are in compliance in all material respects with applicable Laws, including but not limited to, provisions of ERISA and the Code.


 


(b)        All
the Benefit Plans that are intended to be qualified under Section 401(a) of the Code have received determination or opinion
letters from the Internal Revenue Service to the effect that such Benefit Plans are qualified and the plans and the trusts related thereto
are exempt from federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code; no such determination or opinion
letter has been revoked; and, to the Knowledge of Seller, (i) such revocation has not been threatened and (ii) no act or omission
has occurred, that would adversely affect a Benefit Plan's qualification.


 






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(c)         There
does not now exist, nor do any circumstances exist that would result in, any Controlled Group Liability that would be a Liability of Buyer
following the Closing. Without limiting the generality of the foregoing, neither Seller nor any ERISA Affiliate has engaged in any transaction
described in Section 4069 or Section 4204 of ERISA.


 


(d)        No
act or omission has occurred and no condition exists with respect to any Benefit Plan that would subject Seller to any material fine,
penalty, Tax or Liability of any kind imposed under applicable Laws, including but not limited to, ERISA or the Code.


 


(e)         No
Benefit Plan contains any term or provision, or is subject to any Law, that would prohibit the transactions contemplated by this Agreement
or that would give rise to the vesting of benefits, payments, or Liabilities as a result of the transactions contemplated by this Agreement,
except to the extent that full vesting is required under Section 411 of the Code.


 


(f)          All
Benefit Plans may be amended or terminated by Seller in any manner and at any time, without the consent of any person covered by any such
Benefit Plan and without any further material Liability for benefits that may be accrued or expenses that may be incurred after the date
of such termination or amendment, other than benefits that may be required under the terms of such Benefit Plans or benefits required
under Code Section 4980B.No suit, action or other litigation, excluding Claims for benefits incurred in the ordinary course of plan
activities have been brought against or with respect to any Benefit Plan, and no suit, action or other litigation is threatened by, against,
or relating to any Benefit Plan, and Seller does not have any knowledge of any fact that could form the basis for any such suit, action
or litigation. No Benefit Plans are presently under audit or examination by the Internal Revenue Service, the Department of Labor, or
any other governmental agency or entity, and no matters are pending with respect to any Benefit Plan under the Employee Plans Compliance
Resolution System, the Delinquent Filer Compliance Program, or the Voluntary Fiduciary Correction Program.


 


		Section 3.20.	Inventory.



 


All of Seller's inventory
(including spare parts) are of a quality and quantity usable in the ordinary and usual course of business, except for obsolete items and
items of below-standards quality, all of which have been written off or written down to net realizable value.


 


		Section 3.21.	Insurance.



 


Seller
has in full force and effect policies of insurance with respect to the Business and the Purchased Assets of the Project against such casualties
and contingencies and in such amounts, types and forms as are customarily appropriate for its Business and Purchased Assets. Schedule
3.21 contains a list and description of all policies of insurance and bonds carried and owned by Seller relating to the Business or the
Assets of Seller; including any claims or claims notices filed under those policies. Seller is not default under any such policy of insurance
or bond such that it can be canceled and all claims thereunder have been filed in a timely fashion. Seller has filed claims with,
or given notice of claims, to its insurers or bonding companies in timely fashion with respect to all matters and occurrences for which
it believes Seller has coverage. Schedule 3.21 includes all outstanding claims notices filed by Seller relating to the Business or the
Assets of Seller.


 






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		Section 3.22.	[Reserved.]



 


		Section 3.23.	FERC, NERC, DOE and/or MISO Matters.



 


(a)      Seller
has made available to Buyer copies of all reports of assessments, investigations, compliance audits, remedial actions, or other investigative
or response activities conducted at or with respect to the Project regarding any FERC-, NERC-, DOE-, and/or MISO-related requirements,
including cyber security and testing requirements, that are in the possession of Seller.


 


(b)          Except
as set forth on Schedule 3.23(b), Seller and the Project have operated in compliance in all material respects with all applicable FERC-,
NERC-, DOE- and/or MISO-related requirements, including cyber security and testing requirements.


 


(c)         Except
as set forth on Schedule 3.23(c), Seller has not been served with notice of any actual or threatened notice of violation of any FERC-,
NERC-, DOE-, and/or MISO-related requirements, or other action, proceeding, investigation, or inquiry pursuant to any FERC-, NERC-, DOE-,
and/or MISO-related requirements, and no Claim regarding any FERC-, NERC-, DOE-, and/or MISO-related requirements is pending or, to Seller's
Knowledge, threatened, against Seller.


 


ARTICLE IV. REPRESENTATIONS AND WARRANTIES
OF BUYER


 


Except as otherwise disclosed
in the disclosure schedules delivered by Buyer to Seller corresponding to the particular section or subsection contained in this Article IV
(it being understood that disclosure for one section shall be deemed to be disclosure for any other section as to which the applicability
is reasonably apparent from the face of the disclosure) or as otherwise expressly disclosed in this Agreement, Buyer hereby represents
and warrants to Seller, as of the date hereof and as of the Closing (except where such representation or warranty is expressly made as
of another date), as follows:


 


		Section 4.1.	Organization.



 


Buyer is a corporation duly
formed, validly existing and in good standing under the Laws of the State of Michigan.


 


		Section 4.2.	Authority; Enforceability.



 


Buyer has all requisite corporate
power and authority to enter into this Agreement and the Ancillary Agreements to which Buyer is a party, to perform its obligations hereunder
and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Buyer of this Agreement
and the Ancillary Agreements to which Buyer is a party and the performance by Buyer of its obligations under this Agreement and the Ancillary
Agreements to which Buyer is a party have been duly and validly authorized by all necessary corporate action on behalf of Buyer. This
Agreement has been duly and validly executed and delivered by Buyer and constitutes, and each Ancillary Agreement to which the Buyer is
a party when executed and delivered on the Closing Date will constitute, the legal, valid and binding obligation of Buyer enforceable
against Buyer in accordance with its terms except as the same may be limited by bankruptcy, insolvency, moratorium or other similar Laws
relating to or affecting the rights of creditors generally or by general equitable principles.


 






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		Section 4.3.	No Conflicts.



 


The execution and delivery
by Buyer of this Agreement and the Ancillary Agreements to which Buyer is a party do not, and the performance by Buyer of its obligations
hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby will not:


 


(a)          conflict
with or result in a violation or breach of any of the terms, conditions or provisions of Buyer's Organizational Documents;


 


(b)      assuming
all Buyer Approvals have been made, obtained or given, (i) conflict with, violate or breach any term or provision of any Law applicable
to Buyer or any of its Assets which would reasonably be expected to result in a Material Adverse Effect on Buyer's ability to perform
its obligations hereunder or (ii) require any material 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 reasonably be expected to result in a Material Adverse Effect on Buyer's
ability to perform its obligations hereunder.


 


		Section 4.4.	Legal Proceedings.



 


No Claim is pending against
Buyer, Buyer has not been served with notice of any Claim, and to Buyer's knowledge, none is threatened, against Buyer which seeks a writ,
judgment, order or decree restraining, enjoining or otherwise prohibiting or making illegal the transactions contemplated by this Agreement.


 


		Section 4.5.	Brokers.



 


Buyer does not have any Liability
or obligation to pay fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement
for which Seller could become liable or obligated.


 


		Section 4.6.	Sufficiency of Funds.



 


Buyer has sufficient cash
on hand or other sources of immediately available funds to enable it to make payment of the Purchase Price and consummate the transactions
contemplated by this Agreement.


 






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		Section 4.7.	Solvency.



 


Immediately after giving effect
to the transaction contemplated hereby, Buyer shall be solvent and shall: (a) be able to pay its debts as they become due; (b) own
property that has a fair saleable value greater than the amounts required to pay its debts (including a reasonable estimate of the amount
of all contingent Liabilities); and (c) have adequate capital to carry on its business. No transfer of property is being made and
no obligation is being incurred in connection with the transactions contemplated hereby with the intent to hinder, delay or defraud either
present or future creditors of Buyer or Seller. In connection with the transaction contemplated hereby, Buyer has not incurred, nor plans
to incur, debts beyond its ability to pay as they become absolute and matured.


 


		Section 4.8.	Independent Investigation.



 


(a)          Buyer
acknowledges that (i) Buyer, either alone or together with any Persons Buyer has retained to advise it with respect to the transactions
contemplated hereby ("Advisors") has knowledge and experience in transactions of this type and in the business of Seller,
and is therefore capable of evaluating the risks and merits of acquiring the Purchased Assets, (ii) it has relied on its own independent
investigation, and has not relied on any information furnished by Seller or any representative or agent thereof or any other Person in
determining to enter into this Agreement (except for such representations or warranties contained in this Agreement or the Ancillary Agreements),
(iii) neither Seller nor any representative or agent of Seller or any other Person has given any investment, legal or other advice
or rendered any opinion as to whether the transaction is prudent, and Buyer is not relying on any representation or warranty by Seller
or any representative or agent thereof except as set forth in this Agreement, (iv) Buyer has conducted due diligence that it deems
appropriate, including a review of the documents contained in a data room prepared by or on behalf of Seller, (v) Seller made available
to Buyer documents, records and books pertaining to Seller that Buyer's attorneys, accountants, Advisors, if any, and Buyer have requested
and (vi) Buyer and its Advisors, if any, have had the opportunity to visit Seller, its facilities, plants, offices and other properties
and ask questions and receive answers to Buyer's satisfaction concerning Seller and the terms and conditions of this Agreement. Nothing
in this Section shall preclude Buyer from bringing a Claim against Seller for fraud.


 


(b)        Buyer
has received certain projections and other forecasts, including projected financial statements, cash flow items, capital expenditure budgets
and certain business plan information and acknowledges that (i) there are uncertainties inherent in attempting to make such projections
and forecasts and, accordingly, it is not relying on them, (ii) Buyer is familiar with such uncertainties and is taking full responsibility
for making its own evaluation of the adequacy and accuracy of all such projections and forecasts, (iii) Buyer has no Claim under
this Agreement against anyone with respect to the accuracy of such projections and forecasts and (iv) Seller has made no representation
or warranty with respect to such projections and forecasts. Nothing in this Section shall preclude Buyer from bringing a Claim against
Seller for fraud.


 






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ARTICLE V. COVENANTS


 


The Parties hereby covenant and agree as follows:


 


		Section 5.1.	Regulatory and Other Approvals.



 


From the date of this Agreement
until Closing (the "Interim Period"):


 


(a)        The
Parties will, in order to consummate the transactions contemplated hereby, take all commercially reasonable efforts necessary, and proceed
diligently and in good faith and use all commercially reasonable efforts, as promptly as practicable to obtain the Seller Approvals, Seller
Consents, the Acceptable Orders and Buyer Approvals and to make all required filings required to be made by it with, and to give all required
notices to, Governmental Authorities, and 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. Additionally, Seller will cooperate
with Buyer in making Buyer the "Asset Owner" (as defined in the rules of MISO) with respect to the Project as soon as permitted
following the Closing.


 


(b)         The
Parties will provide prompt notification to each other when any such approval referred to in Section 5.1(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 contemplated by this Agreement.


 


(c)          In
furtherance of the foregoing covenants:


 


(i)          Each
Party shall prepare, as soon as is reasonably practical following the execution of this Agreement, all necessary filings in connection
with the transactions contemplated by this Agreement that may be required to be filed by such Party with the FERC, the MPSC or any other
federal, state or local Laws. Each Party shall submit such filings as soon as reasonably practicable. Notwithstanding the foregoing, the
filing for authorization from the FERC for the acquisition of the Purchased Assets by Buyer from Seller pursuant to Section 203 of
the FPA shall be made within 540 days of the execution of this Agreement, subject to extension of such period upon consent of the other
Party, which consent shall not be unreasonably withheld. The Parties 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 Party shall
have the right to review in advance all information related to Seller or Buyer, as applicable, and the transactions contemplated by this
Agreement with respect to any filing made by the other Party in connection with the transactions contemplated by this Agreement.


 


(ii)         The
Parties shall not, and shall cause their respective Affiliates not to, take any action that is intended to adversely affect the approval
of any Governmental Authority of any of the filings referenced in clause (i).


 


(iii)          Seller
shall file with the appropriate Governmental Authority an application for the transfer of all Permits held by Seller with respect to the
Project to Buyer.


 


(d)        During
the Interim Period, Seller shall timely and properly make all submittals and reports, shall pay all fees, and otherwise do all things
necessary to maintain in full force and effect and comply in all material respects with, each and every Permit required for the ownership
and operation of the Project as it is currently operated. In the event of any actual or threatened cancellation, revocation, termination,
suspension, nonrenewal, or adverse modification of any such Permit, Seller shall promptly notify Buyer in writing and shall pursue all
available legal and equitable remedies for the purpose of preserving such Permit and the currently prevailing terms thereof.


 






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(e)         Notwithstanding
the foregoing, nothing in this Section 5.1 shall require, or be construed to require, Buyer or any of its Affiliates to agree to
(i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of Buyer or any
of its Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses
or interests which, in either case, could reasonably be expected to result in a Material Adverse Effect with respect to Buyer or materially
and adversely impact the economic or business benefits to Buyer of the transactions contemplated by this Agreement; or (iii) any
material modification or waiver of the terms and conditions of this Agreement.


 


		Section 5.2.	Access of Buyer and Seller.



 


(a)          During
the Interim Period, Seller will, and will cause its Representatives to (i) provide Buyer and its Representatives with reasonable
access, upon reasonable prior notice and during normal business hours, to the Property and to the officers and employees of Seller and
its Affiliates who have significant responsibility for the Project, but only to the extent that such access does not unreasonably interfere
with the business of Seller or the Business and that such access is reasonably related to the requesting Party's obligations and rights
hereunder, and subject to compliance with applicable Laws and any Contracts or Permits to which Seller or any of its Affiliates is a party;
provided, however, that Seller shall have the right to (x) have a Representative present for any communication with employees or
officers of Seller or its Affiliates, (y) impose reasonable restrictions and requirements for safety purposes and (z) restrict
access to any privileged information relating to any pending or threatened Claim, (ii) subject to the foregoing clause (z), furnish
Buyer, Buyer's Representatives and Buyer's prospective lenders and their representatives (collectively, "Buyer's Advisors")
with copies of all such Contracts, books and records, and other existing documents and data as Buyer may reasonably request, and
(iii) furnish Buyer and Buyer's Advisors with such additional financial, operating, and other data and information as Buyer may reasonably
request.


 


(b)          During
the Interim Period, Seller shall afford Buyer and Buyer's Advisors the right to conduct an environmental assessment of the Property in
one or more phases, including the procurement and analysis of samples of soil, groundwater, indoor air, or any other environmental medium,
and any building component or other material located at the Property. The cost of the environmental assessment will be borne by Buyer.
Seller will provide access and information to, and otherwise cooperate with, Buyer and Buyer's Advisors in the environmental assessment.
Buyer and Buyer's Advisor's will have the right to interview representatives of Seller having knowledge of conditions and events relevant
to the operating history or environmental condition of the Property. If any Property is a "facility" within the meaning of Part 201
of the Michigan Natural Resources and Environmental Protection Act, MCL 324.20101 et seq., Buyer may prepare and submit to the Michigan
Department of Environment, Great Lakes & Energy a baseline environmental assessment pursuant to MCL 324.20126 ("BEA").


 






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		Section 5.3.	Certain Restrictions.



 


Except as expressly consented
to in writing by Buyer, during the Interim Period, Seller will (a) operate the Project and all Purchased Assets in the ordinary course
of business consistent with Prudent Engineering and Operating Practices, (b) preserve, maintain and protect in all material respects
consistent with past practices the Project, all Purchased Assets, rights, the Property and other properties and goodwill of Seller (including
maintaining in all material respects Seller's relationships with customers, suppliers and Governmental Authorities), and (c) maintain
the Permits in accordance with past practices. Without limiting the foregoing, except as expressly consented to in writing by Buyer, during
the Interim Period, Seller shall not, with respect to the Project, Purchased Assets or the Property:


 


(i)           (A) create
any Lien (other than a Permitted Lien) against any of the Assets of Seller, or (B) permit any Lien (other than a Permitted Lien)
against any of the Assets of Seller;


 


(ii)        (A) enter
into any Contract that is effective beyond May 1, 2025 involving total consideration throughout its term in excess of $50,000 individually
or $500,000 in the aggregate for all such Contracts or (B) grant any waiver of any material term under, or give any material consent
with respect to, any Contract involving total consideration throughout its term in excess of $50,000 individually or $500,000 in the aggregate
for all such waivers;


 


(iii)         sell
or dispose of any of its material assets or properties, other than sales or dispositions in the ordinary course of business (including
sales or dispositions pursuant to power purchase or sale Contracts), sales or dispositions of obsolete or surplus assets, sales or dispositions
in connection with the normal repair and/or replacement of assets or properties, sales or dispositions of Excluded Assets, or sales or
dispositions in accordance with any Material Contract.


 


(iv)          sell,
transfer, assign or convey the emissions allowances or emission reduction credits set forth on Schedule 3.15(f) or any emissions
allowances or emission reduction credits allocated to Seller after the date hereof; provided that nothing in this clause (iv) shall
restrict the use after the date hereof by Seller of any emissions allowances or emission reduction credits in the ordinary course of business;


 


(v)         other
than accounts payable in the ordinary course of business, incur, create, assume or otherwise become liable for Indebtedness, issue any
debt securities or assume or guarantee the obligations of any other Person;


 


(vi)         change
any accounting method or practice in a manner that is inconsistent with past practice in a way that may adversely affect the Business,
the Purchased Assets or the Property;


 


(vii)       fail
to maintain its corporate or limited liability company existence, as applicable, merge or consolidate with any other Person or acquire
all or substantially all of the Assets of any other Person or take any other action that would cause Seller to be treated as other than
a disregarded entity for federal income Tax purposes prior to the Closing;


 






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(viii)       issue,
reserve for issuance, pledge or otherwise encumber, sell or redeem or enter into any Contract with respect to any Equity Interests or
other Equity Securities of Seller;


 


(ix)           liquidate,
dissolve, recapitalize, reorganize or otherwise wind up its business or operations;


 


(x)          purchase
any securities of any Person, except for short-term investments made in the ordinary course of business consistent with past practices;


 


(xi)           amend
or modify its Organizational Documents;


 


(xii)          cancel
any Indebtedness or settle or waive any Claims or rights having a value in excess of $25,000;


 


(xiii)         make
any new, or change any existing, election with respect to Taxes, or settle any Tax Liability that may adversely affect Buyer or Seller
after the Closing;


 


(xiv)         incur
any capital expenditure or major maintenance expenditure in excess of the amounts set forth on the Budget;


 


(xv)       except
in the ordinary course of business consistent with past practices or as otherwise required by the terms of any collective bargaining agreement,
increase salaries or benefits payable to the Employees;


 


(xvi)         fail
to discharge any material Liability of Seller or make any material payment of Seller as it comes due except in connection with a reasonable
good faith dispute;


 


(xvii)       (A) amend,
modify or grant any waiver with respect to any Assigned Contract, except for (i) amendments, modifications or waivers that (A) do
not extend the term of any Assigned Contract beyond the Closing Date, (B) are not material, or (C) are needed in order to operate
the Business in accordance with Prudent Engineering and Operating Practices;


 


(xviii)      declare
or pay any dividends or other distributions of cash or other Assets of Seller; or


 


(xix)        agree
or commit to do any of the foregoing.


 


(xx)         Notwithstanding
the foregoing, Seller shall have the right to conduct, prosecute, compromise or settle any and all hearings, appeals, rate cases or other
proceedings. Seller shall provide Buyer the opportunity to review and advise on any material matters under this subsection (x)(x).


 






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		Section 5.4.	Termination of Certain Services and Contracts.



 


Notwithstanding anything in
this Agreement to the contrary, at or prior to the Closing, Seller shall (a) terminate or sever, effective upon or before the Closing,
any services provided to Seller with respect to the Project or the Property by an Affiliate of Seller and that are not being assigned
to Buyer, including the termination or severance of insurance policies (including those policies referred to in Section 5.7), Tax
services, legal services and banking services (to include the severance of any centralized clearance accounts), terminate or assign to
Buyer each Contract listed on Schedule 5.4, and cause all Claims or obligations (contingent or otherwise) with respect to the Project
or the Property between Seller, on one hand, and an Affiliate of Seller, on the other, to be released effective immediately prior to Closing
(collectively such services, Contracts, Claims or obligations, the "Terminated Contracts").


 


		Section 5.5.	Employee and Benefit Matters.



 


(a)            From
time to time prior to the Closing Date, Seller shall update Schedules 3.18(a) and 3.18(b) to (i) remove any Person who
ceases to be an Employee after the date hereof and (ii) add any Person who becomes an Employee after the date hereof.


 


(b)            Within
a reasonable time prior to Closing, Seller shall provide Buyer with such pertinent data or information as Buyer shall reasonably require
to determine each Employee's service, compensation or any other information related to benefits. To the extent the consent of an Employee
is required in order for Seller to deliver any such pertinent data, records or information to Buyer, Seller agrees to use its commercially
reasonable efforts to secure such consent.


 


		Section 5.6.	Indebtedness.



 


Notwithstanding anything in
this Agreement to the contrary, prior to or at the Closing, Seller shall cause any and all Indebtedness of Seller with respect to the
Project or the Purchased Assets to be paid in full and any and all Liens securing any such Indebtedness to be released such that Buyer
shall acquire the Purchased Assets free of any such Indebtedness or any such Liens.


 


		Section 5.7.	Insurance.



 


Seller shall maintain or cause
to be maintained in full force and effect the material insurance policies covering the Assets of Seller with respect to the Project and
the Purchased Assets until the Closing or shall replace them with reasonably comparable policies. All such insurance coverage shall be
terminated as of the Closing. Without limiting the rights of Buyer set forth elsewhere in this Agreement, for a period of two years after
the Closing Date, if any claims may reasonably be made, or Losses occur prior to the Closing Date, that relate to the Project or the Business,
and such claims, or the claims associated with such Losses, may be made against third-party insurance policies retained by Seller or its
Affiliates, then Seller (on behalf of itself and its Affiliates) shall, at Buyer's request, use its commercially reasonable efforts in
an effort to permit Buyer in cooperation with Seller, after the Closing Date, to file, notice and otherwise continue to pursue such claims
and recover proceeds under the terms of such policies (but only to the extent the terms and conditions of such policies reasonably would
provide coverage for such claims, or the claims associated with such Losses), and, subject to all of the foregoing, Seller (on behalf
of itself and its Affiliates) agrees to otherwise reasonably cooperate with Buyer or its Affiliates to make the benefits of any such third-party
insurance policies available to Buyer or its Affiliates.


 






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		Section 5.8.	Transfer Taxes; Property Taxes.



 


(a)            Transfer
Taxes. Notwithstanding anything in this Agreement to the contrary, Seller shall pay for any Transfer Taxes imposed on Buyer or
Seller by Law as a result of the transactions hereunder. The Transfer Tax Affidavits shall: (i) be mutually prepared by Buyer and
Seller, (ii) be acceptable to Buyer and Seller, and (iii) conform to Michigan Law.


 


(b)            Property
Taxes.


 


(i)            Any
special assessments outstanding on or with respect to the Property and/or the Project (or proposed to be assessed on or with respect to
the Property and/or the Project even if not yet a Lien), whether or not same have become due and payable on or before the Closing Date
(including, in the case of special assessments payable in installments, any installments that will become payable after the Closing Date),
shall be paid by Seller in full prior to Closing without any charge to, reimbursement from or proration with the Buyer.


 


(ii)            All
Property Taxes, other than special assessments as addressed in Subsection 5.8(b)(i), on the Property or otherwise on the Project shall
be prorated at Closing as follows: Any such Property Taxes shall be deemed to cover the calendar year in which the applicable Property
Tax Lien Date occurs. Any such Property Taxes for which the applicable Property Tax Lien Date occurs in calendar years prior to the calendar
year of Closing shall be paid by Seller in full prior to Closing without any reimbursement from or proration with Buyer. Any such Property
Taxes for which the applicable Property Tax Lien Date occurs in the calendar year of Closing shall be prorated at the Closing so that
Seller (without any charge to or reimbursement from the Buyer) shall be charged with such Property Taxes from the first of the calendar
year to the Closing Date and Buyer charged with such Property Taxes for the balance of said calendar year. With respect to any bill for
Property Taxes proratable hereunder that has not yet been issued as of the Closing Date, the current taxable value and tax rate shall
be assumed to apply and used in proration hereunder.


 


(iii)            With
respect to Property Taxes for which the applicable Property Tax Lien Date occurs in the calendar year of Closing, Buyer shall have the
right to participate in the appeal, settlement or compromise of any proceeding to determine the value of the Project for purposes of Property
Taxes. Seller shall take such action in connection with any such proceeding as Buyer shall reasonably request from time to time to implement
the preceding sentence, including the selection of counsel and experts and the execution of powers of attorney. During the Interim Period,
Seller shall not settle any proceeding with respect to Property Taxes that could materially affect Buyer in the calendar year of Closing
without Buyer's prior written consent.


 






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(iv)            During
the Interim Period, Seller shall take appropriate action to ensure the continuation of existing Project Property Tax incentives, exemptions
and abatements, including but not limited to, air and water pollution control tax exemption certificates, industrial facility tax abatements
payment in lieu of taxes or renaissance zones. Further, Seller shall participate and take appropriate actions to transfer ownership or
registration of such incentives, abatements or exemptions to the Buyer.


 


 


		Section 5.9.	Books and
Records.



 


Seller
shall deliver the books and records set forth on Schedule 5.9 to Buyer as promptly as practicable following the Closing Date (it being
agreed that Seller may retain a copy thereof). Not later than 30 days after Closing, a breakdown of the Purchase Price in accordance with
the property retirement unit categories and other systems of account together with all books and records substantiating the Purchase Price
breakdown shall be delivered to Buyer. For physical Project Assets, Seller will provide the following: retirement unit, quantity, cost, ID
number, make, model, serial number and unit number. For land, Seller will provide the parcel and deed information.


 


		Section 5.10.	Intentionally Omitted.



 


		Section 5.11.	Casualty.



 


If any Asset of Seller is
damaged or destroyed by fire, storm, explosion or other casualty loss after the date hereof and prior to the Closing (a "Casualty
Loss"), and (a) the cost of restoring such damaged or destroyed Asset to a condition reasonably comparable to its prior
condition plus (b) the amount of any lost profits reasonably expected to accrue after Closing as a result of such Casualty Loss (net
of and after giving effect to any insurance proceeds available to the Buyer for such restoration and lost profits) (such costs and lost
profits, as estimated by a qualified firm selected by Buyer and reasonably acceptable to Seller acting in good faith, the "Restoration
Cost") does not exceed 10% of the Base Purchase Price, the amount of the Purchase Price shall be reduced by the estimated
Restoration Cost, and such Casualty Loss shall not affect the Closing. If the estimated Restoration Cost is in excess of 10% of the Base
Purchase Price, Buyer may, by notice to Seller within 90 days after the date of such Casualty Loss, elect to (y) reduce the Purchase
Price by the estimated Restoration Cost, or (z) terminate this Agreement, in each case by providing written notice to Seller. If
Buyer does not make any such election within 90 days after the date of such Casualty Loss, Seller may elect to terminate this Agreement,
provided that Seller first gives Buyer written notice of termination within 10 Business Days after the end of such 90-day period and Buyer
does not make an election within the 10-Business Day period.


 






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		Section 5.12.	Condemnation.



 


If any Purchased Assets of
Seller is taken by condemnation after the date hereof and prior to the Closing and such Purchased Assets have the sum of (a) the
reduction or loss in value of the Property and/or Project and/or portion(s) thereof plus (b) to the extent not included in preceding
clause (a), the amount of any lost profits reasonably expected to accrue after Closing as a result of such condemnation (net of and after
giving effect to any condemnation award) (such reduction or loss in value and lost profits, as estimated by a qualified firm selected
by Buyer and reasonably acceptable to Seller acting in good faith, the "Condemnation Value'') not in excess of 10%
of the Base Purchase Price, the Purchase Price shall be reduced by such estimated Condemnation Value (less the amount of any condemnation
award that will accrue to Buyer), and such condemnation shall not affect the Closing. If the estimated Condemnation Value is in excess
of 10% of the Base Purchase Price, Buyer may, by notice to Seller within 90 days after the award of condemnation proceeds, elect to (y) reduce
the Purchase Price by such estimated Condemnation Value (after giving effect to any condemnation award that will accrue to Buyer) or (z) terminate
this Agreement, in each case by providing written notice to Seller. If Buyer does not make any such election within 90 days after the
date of such condemnation award, Seller may elect to terminate this Agreement, provided that Seller first gives Buyer written notice of
termination within 10 Business Days after the end of such 90-day period and Buyer does not make an election within the 10-Business-Day
period.


 


		Section 5.13.	Confidentiality.



 


(a)            Any
information or materials furnished by Seller to Buyer or Buyer to Seller on and after the date of this Agreement shall be subject to the
Confidentiality Agreement; provided that Buyer shall not have any obligation to maintain the confidentiality of any information with respect
to the Purchased Assets, the Project, the Business or any other information transferred to Buyer under this Agreement from and after the
Closing. In the event of any conflict between this Agreement and the Confidentiality Agreement, this Agreement shall prevail.


 


(b)            Notwithstanding
the above and anything in the Confidentiality Agreement to the contrary, Buyer may provide confidential information to any Governmental
Authority with jurisdiction as necessary to comply with Section 5.1.


 


		Section 5.14.	Public Announcements.



 


Unless required by Law, court
process or by the rules of a national securities exchange to make such disclosure, (in which case, Seller shall, if permissible under
Law, give Buyer at least 24 hours' notice prior to such required disclosure), neither Seller nor any of its Affiliates shall make any
public announcement of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media before Buyer
has made a public announcement of this Agreement or the transactions contemplated hereby.


 


		Section 5.15.	Distributions.



 


For the avoidance of doubt,
the Parties hereby acknowledge and agree that Seller shall not, during the Interim Period, distribute any of the cash, accounts receivable
or other assets held by Seller with respect to the Project or the Purchased Assets to its Affiliates.


 


		Section 5.16.	Further Assurances.



 


Subject to the terms and conditions
of this Agreement, at any time or from time to time after the Closing, at any Party's request and without further consideration, the other
Party shall execute and deliver to such Party such other instruments of sale, transfer, conveyance, assignment and confirmation, provide
such materials and information and take such other actions as such Party may reasonably request in order to consummate the transactions
contemplated by this Agreement.


 






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		Section 5.17.	Monthly Operating Report.



 


During the Interim Period,
Seller will, promptly after its preparation, and in no event later than 10 days after the end of each calendar month, provide Buyer with
a monthly operating report in the form of attached Schedule 5.17.


 


		Section 5.18.	Intentionally Omitted.



 


		Section 5.19.	Financial Statements.



 


During the Interim Period,
Seller shall deliver to Buyer true and correct copies of Financial Statements of Seller prepared in accordance with GAAP no later than
60 days after each year end and no later than 45 days after each quarter end.


 


		Section 5.20.	Intentionally Omitted.



 


		Section 5.21.	No Solicitation of Other Bids.



 


(a)            Seller
shall not, and shall not authorize or permit any of its Affiliates or any of its or their Representatives to, directly or indirectly,
(i) encourage, solicit, initiate, facilitate or continue inquiries regarding an Acquisition Proposal; (ii) enter into discussions
or negotiations with, or provide any information to, any Person concerning a possible Acquisition Proposal; or (iii) enter into any
agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. Seller shall immediately cease and cause to
be terminated, and shall cause its Affiliates and all of its and their Representatives to immediately cease and cause to be terminated,
all existing discussions or negotiations with any Persons conducted heretofore with respect to, or that could lead to, an Acquisition
Proposal. For purposes hereof, "Acquisition Proposal" means any inquiry, proposal or offer from any Person (other
than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any
portion of the Business, the Project or the Purchased Assets, but does not include any inquiry, proposal or offer with respect to the
sale of electricity, capacity or ancillary services by Seller.


 


(b)            In
addition to the other obligations under this Section 5.21, Seller shall promptly (and in any event within 3 Business Days after receipt
thereof by Seller or its Representatives) advise Buyer orally and in writing of any Acquisition Proposal, any request for information
with respect to any Acquisition Proposal, or any inquiry with respect to or which could reasonably be expected to result in an Acquisition
Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the Person making the
same.


 


(c)            Seller
agrees that the rights and remedies for noncompliance with this Section 5.21 shall include having such provision specifically enforced
by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable
injury to Buyer and that money damages would not provide an adequate remedy to Buyer.


 






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Section 5.22           Current
Evidence of Title. At any time prior to the Closing, Buyer may obtain for each parcel, tract and subdivided land lot of real property
included in the Property:


 


(a)            Title
Commitments. From a title company selected by Buyer ("Title Insurer"), title commitments issued by the
Title Insurer to insure title to all Property and insurable appurtenances, if any, in the amount of the Purchase Price covering such Property,
naming Buyer as the proposed insured and having an effective date after the date of this Agreement, wherein Title Insurer will agree to
issue an owner's policy of title insurance (or leasehold owner’s policy as the case may be) (ALTA 1992 Form B), without the
standard printed exceptions and with the Endorsements (defined below) (each a "Title Commitment", and collectively,
the "Title Commitments") and complete legible copies of all recorded documents listed therein (the "Recorded
Documents"). Seller and Buyer shall split 50/50 the cost of each such Title Commitment.


 


(b)            Survey.
An ALTA/ASCM land title survey of each parcel, tract and subdivided land lot of real property included in the Property, as-built, by a
land surveyor licensed in Michigan and bearing a certificate, signed and sealed by the surveyor, that is selected by Buyer that reflects,
without limitation, the locations of all building lines, easements and areas affected by any Recorded Documents affecting such Property
as disclosed in the applicable Title Commitment (identified by recording or filing information) as well as any encroachments onto the
Property or by any part of the Property onto any easement area or adjoining property (each, a "Survey"). Buyer
will be responsible for the cost of the Survey.


 


		Section 5.23	Title
Policy.



 


(a)            Requirements.
Each Title Commitment will include the Title Insurer's requirements for issuing its ALTA 1992 Form B title policy (owner’s
or leasehold owner’s as the case may be) without standard printed exceptions, which requirements will be met by Seller on or before
the Closing Date (including those requirements to issue the endorsements described below and those that must be met by releasing or satisfying
Liens, but excluding Permitted Liens and those requirements that are to be met solely by Buyer). Each Title Commitment will provide for
the following endorsements, together with any other endorsements that Buyer or its lender may reasonably request after receiving the Title
Commitment and Survey (endorsements only applicable to leasehold owner’s policies in italics) ("Endorsements"):


 


		i.	ALTA 17-06/17.1-06 (Access and
Entry)
		ii.	ALTA 18-06 (Single Tax Parcel)
		iii.	ALTA 22-06 (Location)
		iv.	ALTA 9.2-06 (Covenants, Conditions
and Restrictions)
		v.	ALTA Form 13-06 (Leasehold-Owner’s
Policy)
		vi.	ALTA 28.1-06 (Encroachments-Boundaries
and Easements)
		vii.	ALTA 35-06 (Minerals and Other
Subsurface Substances)
		viii.	ALTA 25-06 (Same as Survey)
		ix.	ALTA 3.1-06 (Zoning)
		x.	Removal of Standard Exceptions
		xi.	Deletion of Arbitration
		xii.	ALTA Form 36-06 Energy
(Leasehold/Easement-Owners Policy)
		xiii.	ALTA Form 36.2-06 Energy
(Leasehold- Owners Policy)



 






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		xiv.	ALTA Form 36.4-06 Energy
(Covenants, Conditions and Restrictions)
		xv.	ALTA Form 36.6-06 Energy
(Encroachments) (TC)
		xvi.	ALTA Form 36.7-06 Energy
(Fee Estate-Owners Policy)
		xvii.	Zoning (ALTA 3.1 plus parking),
covenants, conditions and restrictions



 


(b)            Objections.     If
any of the following occur (collectively, a "Title Objection"): (i) any Title Commitment or other evidence
of title or search of the appropriate real estate records discloses that any party other than Seller has title to the insured estate covered
by the Title Commitment; (ii) any title exception is disclosed in any Title Commitment that is not one of the Permitted Liens; or
(iii) the Survey discloses any material matter that does or may have an adverse effect on the operation of the Business or the value
of the property in question; then Buyer will notify Seller in writing of such matters at least 180 days prior to the Closing Date (unless
such matter is first disclosed to Buyer after such date in which case Buyer shall promptly notify Seller upon receipt of such disclosure).


 


(c)            Curing.
Seller will use its best efforts to cure each Title Objection and take all steps required by the Title Insurer to eliminate each Title
Objection as an exception applicable to any Title Commitment.


 


(d)            No
Waiver. Nothing herein waives Buyer's right to Claim a breach of a representation or warranty or to Claim a right to indemnification
if Buyer suffers any damages as a result of a misrepresentation with respect to the condition of title to the Property.


 


(e)            Fees.
At Closing, Seller will pay all recording and filing costs in connection with curing title to the Property and the transfer taxes for
the Warranty Deeds. Buyer will pay the recording fee for the Warranty Deeds. Seller and Buyer will each pay one-half of any closing fee
charged by the title company conducting the Closing. At Closing, Buyer shall pay the title premium for Buyer's owner's policy of title
insurance for the Property in the amount of the Purchase Price allocated to such property and all endorsements thereto.


 


ARTICLE VI. BUYER'S CONDITIONS TO CLOSING


 


The obligation of Buyer to
consummate the Closing is subject to the fulfillment of each of the following conditions (except to the extent waived in writing by Buyer):


 


		Section 6.1.	Representations
and Warranties.



 


(a)            All
representations and warranties made by Seller in ARTICLE III shall be true and accurate on and as of the Closing Date as though made
on and as of the Closing Date, except for (i) changes expressly permitted or contemplated hereby, or (ii) representations and
warranties which are as of a specific date, which shall be true and accurate as of such date.


 


(b)            Since
the date of this Agreement, there has not been any Material Adverse Effect with respect to Seller or the Assets of Seller.


 






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		Section 6.2.	Performance.



 


Seller shall have performed
and complied with all agreements, covenants and obligations required by this Agreement to be performed or complied with by Seller at or
before the Closing.


 


		Section 6.3.	Officer's
Certificate.



 


Seller shall have delivered
to Buyer at the Closing a certificate of an officer of Seller, dated as of the Closing Date, affirming and certifying the matters set
forth in Section 6.1 and Section 6.2.


 


		Section 6.4.	Orders and Laws.



 


There shall be no effective
injunction, writ or restraining order or any order of any nature issued by a Governmental Authority of competent jurisdiction to the effect
that the purchase and sale of the Purchased Assets and the other transactions contemplated pursuant to this Agreement may not be consummated
as provided in this Agreement and no proceeding or lawsuit shall have been commenced by any Governmental Authority which may result in
any such injunction, writ or restraining order or to otherwise prohibit or make illegal the consummation of the transactions contemplated
by this Agreement.


 


		Section 6.5.	Consents and Approvals.



 


The Buyer Approvals, Seller
Approvals, Seller Consents, and the Acceptable Orders shall have been duly obtained, made or given and shall be in full force and effect,
and all terminations or expirations of waiting periods imposed by any Governmental Authority shall have occurred.


 


		Section 6.6.	Resignation of Members, Managers, Officers and Directors.



 


Seller shall have caused the
resignation or removal of all members, managers, partners, officers and directors, as applicable, nominated or appointed by Seller or
its Affiliates to any board or operating, management or other committee relating to the Project or established under Seller's Organizational
Documents, and shall have delivered to Buyer at the Closing evidence of such resignations or removals.


 


		Section 6.7.	Release of Indebtedness; Release of Liens.



 


Seller shall have delivered
to Buyer evidence, satisfactory to Buyer, of Seller's compliance with Section 5.6.


 


		Section 6.8.	Owner's
Title Policy.



 


Buyer shall have obtained
an owner's title policy (or leasehold owner’s title policy as the case may be) for each parcel, tract and subdivided land lot of
real property included in the Property acceptable to Buyer, in the amounts, with the endorsements and otherwise meeting the requirements
of Section 5.22 and 5.23 (each a "Title Policy" and collectively, the "Title Policies").


 






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		Section 6.9.	Remediation
Obligations.



 


The Dearborn Industrial Generating
facility currently has obligations to AK Steel Corporation ("AK Steel") regarding certain water discharges under
the Conformed and Amended Agreement between Dearborn Industrial Generation, LLC and AK Steel Corporation (as successor to Severstal North
America, Inc.), dated February 1, 2008, as amended by the First Amendment to Conformed and Amended Agreement dated December 31,
2019 (the "Water Limit Obligations"). The Dearborn Industrial Generating facility is authorized to discharge from
the facility under National Pollutant Discharge Elimination System Permit No. MI0056235 issued by the Michigan Department of Environmental
Quality (now the Michigan Department of Environment, Great Lakes & Energy or "EGLE") (the "NPDES Permit").
Prior to Closing, at its own cost Seller shall complete, to Buyer’s reasonable satisfaction, a solution to achieve full compliance
with the Water Limit Obligations, all existing or future NPDES Permit limits, and any limits contained in any other existing or future
permits, Laws, rules, or regulations governing discharges from the Dearborn Industrial Generating facility (the "Remediation
Obligations"). All plans for the Remediation Obligations shall be subject to Buyer’s reasonable review and approval
prior to their implementation. If the Remediation Obligations are not completed as provided in this Section, then the Purchase Price shall
be reduced up to $20,000,000 (the "Purchase Price Reduction") based on a mutual agreement between Buyer and Seller.
Once the Purchase Price Reduction is reflected in the Closing statement, then (i) all indemnity obligations by Seller set forth in
Section 9.1(a) and termination rights by Buyer under Section 8.1 solely in connection with breaches of the Remediation
Obligations, shall be deemed terminated; and (ii) Buyer shall be deemed to have assumed responsibility for all costs and expenses
attributable to the Remediation Obligations and all Losses with respect thereto shall be deemed as Assumed Liabilities, except with respect
to any Claim by AK Steel, EGLE and Ford Motor Company solely in connection with Seller’s Remediation Obligations (collectively,
 "Remediation Indemnity Obligations"). Seller agrees to indemnify Buyer for all such Remediation Indemnity Obligations
pursuant to Section 9.1 against all Losses subject to Section 9.2 resulting from such breaches of Seller’s Remediation
Obligations.


 


		Section 6.10.	Due
Diligence.



 


Buyer is satisfied with each
Estoppel Certificate and the results of its environmental and real property due diligence.


 


ARTICLE VII. SELLER'S CONDITIONS TO CLOSING


 


The obligation of Seller to
consummate the Closing is subject to the fulfillment of each of the following conditions (except to the extent waived in writing by Seller):


 


		Section 7.1.	Representations and Warranties.



 


The representations and warranties
made by Buyer in ARTICLE IV shall be true and accurate on and as of the Closing Date as though made on and as of the Closing Date,
except for (i) changes expressly permitted or contemplated hereby; or (ii) representations and warranties which are as of a
specific date, in which event they shall be true and accurate as of such date.


 






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		Section 7.2.	Performance.



 


Buyer shall have performed
and complied with all agreements, covenants and obligations required by this Agreement to be so performed or complied with by Buyer at
or before the Closing.


 


		Section 7.3.	Officer's Certificate.



 


Buyer shall have delivered
to Seller at the Closing a certificate of an officer of Buyer, dated as of the Closing Date, affirming and certifying the matters set
forth in Section 7.1 and Section 7.2.


 


		Section 7.4.	Orders and
Laws.



 


There shall be no effective
injunction, writ or restraining order or any order of any nature issued by a Governmental Authority of competent jurisdiction to the effect
that the purchase and sale of the Purchased Assets and the other transactions contemplated pursuant to this Agreement may not be consummated
as provided in this Agreement and no proceeding or lawsuit shall have been commenced by any Governmental Authority which may result in
any such injunction, writ or restraining order or to otherwise prohibit or make illegal the consummation of the transactions contemplated
by this Agreement.


 


		Section 7.5.	Consents
and Approvals.



 


The Seller Approvals shall
have been duly obtained, made or given and shall be in full force and effect, and all terminations or expirations of waiting periods imposed
by any Governmental Authority shall have occurred.


 


ARTICLE VIII. TERMINATION


 


		Section 8.1.	Termination.



 


This Agreement may be terminated,
and the transactions contemplated hereby may be abandoned, at any time before the Closing as follows:


 


(a)            by
Seller, by written notice to Buyer, if Buyer has breached any representation, warranty, covenant, agreement or obligation in this Agreement
and such breach has not been cured within 30 days following written notification thereof; provided, however, that if, at the end of such
30-day period, Buyer is endeavoring in good faith, and proceeding diligently, to cure such breach, Buyer shall have an additional 90 days
in which to effect such cure;


 


(b)            by
Buyer, by written notice to Seller, if Seller has breached any representation, warranty, covenant, agreement or obligation in this Agreement
and such breach has not been cured within 30 days following written notification thereof; provided, however, that if, at the end of such
30-day period, Seller is endeavoring in good faith, and proceeding diligently, to cure such breach, Seller shall have an additional 90
days in which to effect such cure;


 






    40


     


    

 






(c)       by
Buyer or Seller, by notice to the other, on or after May 1, 2027, or such later date as the Buyer and Seller may agree in writing;
provided that Buyer cannot terminate under this provision if the failure of the Closing to occur is the result of the failure on the part
of Buyer to perform any of its obligations hereunder and Seller cannot terminate this Agreement under this provision if the failure of
the Closing to occur is the result of the failure on the part of Seller to perform any of its obligations hereunder;


 


(d)       by
Buyer or Seller, in accordance with Section 5.11 or Section 5.12;


 


(e)       by
Buyer if it is not satisfied with the results of its environmental or real property due diligence so long as notice is given by October 31,
2022;


 


(f)        to
the extent that any of the exhibits or schedules indicate that they will be completed after the signing this Agreement, then the parties
will work together to complete such exhibits and/or schedules. If any of the exhibits or schedules are not completed within one month
following the date of this Agreement, then either party will have the right to terminate this Agreement; or


 


(g)       by
mutual written consent of Buyer and Seller.


 


Section 8.2.                 Effect
of Termination.


 


(a)       If
this Agreement is validly terminated pursuant to Section 8.1, there will be no Liability or obligation on the part of Seller or
Buyer (or any of their respective Representatives or Affiliates), except as provided in this Section 8.2 and Section 8.3.


 


(b)       Regardless
of the reason for termination, Section 5.13 (with respect to information or materials subject to the Confidentiality Agreement),
Section 5.14, this Section 8.2, Section 8.3, Section 9.4(a), and Section 9.4(b) and ARTICLE X will
survive any termination of this Agreement, and each Party shall continue to be liable for any breach of this Agreement by it occurring
prior to such termination.


 


Section 8.3.                 Specific
Performance and Other Remedies.


 


Each Party hereby acknowledges
that the rights of each Party to consummate the transactions contemplated hereby are special, unique and of extraordinary character and
that, if either Party violates or fails or refuses to perform any covenant or agreement made by it herein, the non-breaching Party may
be without an adequate remedy at law. If either Party violates or fails or refuses to perform any covenant or agreement made by such Party
herein, the non-breaching Party or Parties may, subject to the terms hereof and in addition to any remedy at law for damages or other
relief, institute and prosecute an action in any court of competent jurisdiction to enforce specific performance of such covenant or agreement
or seek any other equitable relief.


 


ARTICLE IX. INDEMNIFICATION, LIMITATIONS
OF LIABILITY AND WAIVERS


 


Section 9.1.                 Indemnification.


 


(a)       Subject
to Section 9.2, from and after the Closing, Seller shall defend and hold harmless Buyer and its stockholders, partners, members,
officers, employees, Affiliates and Representatives (collectively, the "Buyer Indemnified Parties") from and
against all Losses incurred or suffered by any Buyer Indemnified Party resulting from:


 


(i)         any
breach or inaccuracy as of the Closing Date (as though made on and as of the Closing Date except to the extent otherwise provided in
this Agreement) of any representation or warranty of Seller contained in this Agreement, any Ancillary Agreement or any certificates
delivered in connection herewith or therewith;


 






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(ii)        any
breach of any covenant or agreement of Seller contained in this Agreement, any Ancillary Agreement or any certificates delivered in connection
herewith or therewith;


 


(iii)       the
Excluded Liabilities; and


 


(iv)       any
Environmental Liability of Seller related to the Property.


 


(b)       Subject
to Section 9.2, from and after Closing, Buyer shall indemnify, defend and hold Seller and its stockholders, partners, members, officers,
employees, Affiliates and Representatives (collectively, the "Seller Indemnified Parties" and, together with
Buyer Indemnified Parties, the "Indemnified Parties") harmless from and against all Losses incurred or suffered
by any Seller Indemnified Party resulting from:


 


(i)         any
breach or inaccuracy as of the Closing Date (as though made on and as of the Closing Date except to the extent otherwise provided in this
Agreement) of any representation or warranty of Buyer contained in this Agreement, any Ancillary Agreement or any certificates delivered
in connection herewith or therewith; and


 


(ii)        any
breach of any covenant or agreement of Buyer contained in this Agreement, any Ancillary Agreement or any certificates delivered in connection
herewith or therewith.


 


(c)       For
purposes of this Section 9.1, the amount of any Losses associated with any inaccuracy in or breach of any representation or warranty
set forth in this Agreement (but not for purposes of determining the existence of such inaccuracy or breach) shall be determined without
regard for any materiality, "Material Adverse Effect" or similar qualification.


 


Section 9.2.                 Limitations
of Liability.


 


Notwithstanding anything in
this Agreement to the contrary:


 


(a)       the
representations, warranties, covenants, agreements and obligations in this Agreement or any Ancillary Agreement shall survive the Closing;
provided, however, that except for Claims arising out of or related to fraud (but not constructive fraud) no Party may make or bring
a Claim for Liability (i) with respect to any representations or warranties (or in any certificate relating thereto) contained in
ARTICLE III or ARTICLE IV (other than those representations and warranties contained in Section 3.1 (Organization), Section 3.2
(Authority; Enforceability), Section 3.3 (No Conflicts; Consents and Approvals), Section 3.5 (Brokers), Section 3.13 (Ownership;
Liens), (collectively, the "Fundamental Representations") or Section 3.10 (Taxes)) after two years following
the Closing Date, (ii) with respect to the representations and warranties contained in the Fundamental Representations, after the
five-year anniversary of the Closing Date, and (iii) with respect to the representations and warranties contained in Section 3.10
(Taxes), after 60 days following the expiration of the applicable statute of limitations;


 






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(b)       Seller
shall have no Liability for a breach of this Agreement (other than any Excluded Liabilities, any breach of the Fundamental Representations,
a breach of a representation or warranty contained in Section 3.10 (Taxes) or a matter covered by Section 5.8 (Transfer Taxes;
Property Taxes)) until the aggregate amount of all Losses incurred by Buyer equals or exceeds $1,000,000 (the "Deductible
Amount"), in which event Seller shall be liable for Losses only to the extent they are in excess of the Deductible Amount
(except as otherwise set forth in this Section 9.2);


 


(c)       except
for fraud (but not constructive fraud), intentional or willful misconduct, in no other event shall Seller's aggregate Liability arising
out of or relating to Losses under Section 9.1(a)(i) or Buyer's aggregate Liability arising out of or relating to Losses under
Section 9.1(b)(i) exceed $100,000,000; and


 


(d)       no
Indemnifying Party shall have any Liability under this ARTICLE IX to indemnify any Indemnified Party with respect to a Loss to the
extent that the Loss arose from or was exacerbated by any action taken directly by any Indemnified Party on or after the Closing Date.


 


Section 9.3.                 No
Other Representations or Warranties.


 


EXCEPT FOR THE REPRESENTATIONS
AND WARRANTIES CONTAINED IN ARTICLE III, NEITHER SELLER NOR ANY OTHER PERSON MAKES ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR
WARRANTY ON BEHALF OF SELLER. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE IV, NEITHER THE BUYER NOR ANY OTHER
PERSON MAKES ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY ON BEHALF OF BUYER.


 


Section 9.4.                Waiver
of Remedies.


 


(a)       The
Parties hereby agree that, except with respect to Claims for fraud (but not constructive fraud), no Party shall have any Liability, and
no Party shall make any Claim, for any Loss or other matter under, relating to or arising out of this Agreement, or the Closing Certificates,
whether based on contract, tort, strict Liability, other Laws or otherwise, except as provided in Section 5.10, ARTICLE VIII
and ARTICLE IX.


 


(b)       NOTWITHSTANDING
ANYTHING IN THIS AGREEMENT TO THE CONTRARY, Except WITH RESPECT TO (1) A CLAIM BY A THIRD PARTY THAT FALLS WITHIN AN INDEMNIFYING
PARTY'S OBLIGATIONS UNDER ARTICLE IX AND (2) FOR PURPOSES OF CALCULATING RESTORATION COST UNDER SECTION 5.11 OR CONDEMNATION
VALUE UNDER SECTION 5.12, NO PARTY SHALL BE LIABLE FOR SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES
OR LOST PROFITS, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OTHER LAW OR OTHERWISE AND WHETHER OR NOT ARISING FROM THE OTHER PARTY'S
SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT ("NON-REIMBURSABLE DAMAGES").


 






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Section 9.5.                 Procedure
with Respect to Third-Party Claims.


 


(a)       If
any Party becomes subject to a pending or threatened Claim of a third party and such Party (the "Claiming Party") believes
it has a Claim against the other Party (the "Responding Party") as a result, then the Claiming Party shall promptly
notify the Responding Party in writing of the basis for such Claim setting forth the nature of the Claim in reasonable detail. The failure
of the Claiming Party to so notify the Responding Party shall not relieve the Responding Party of Liability hereunder except to the extent
that the defense of such Claim is materially prejudiced by the failure to give such notice.


 


(b)       If
any proceeding is brought by a third party against a Claiming Party and the Claiming Party gives notice to the Responding Party pursuant
to this Section 9.5, the Responding Party shall be entitled to participate in such proceeding and, to the extent that it wishes,
to assume the defense of such proceeding, if (i) the Responding Party provides written notice to the Claiming Party that the Responding
Party intends to undertake such defense, (ii) the Responding Party conducts the defense of the third-party Claim actively and diligently
with counsel reasonably satisfactory to the Claiming Party and (iii) if the Responding Party is a party to the proceeding, the Responding
Party or the Claiming Party has not determined in good faith that joint representation would be inappropriate because of a conflict in
interest. The Claiming Party, in its sole discretion, shall have the right to employ separate counsel (who may be selected by the Claiming
Party in its sole discretion) in any such action and to participate in the defense thereof, and the fees and expenses of such counsel
shall be paid by such Claiming Party. Notwithstanding the preceding sentence, to the extent that the Claiming Party incurs fees and expenses
because of the Claiming Party's good faith determination that it must engage separate counsel because of a conflict of interest under
Section 9.5(b)(iii), the fees and expenses of such separate counsel shall be paid by the Responding Party pursuant to Section 9.5(c).
The Claiming Party and the Responding Party shall fully cooperate with each other and their respective counsel in the defense or compromise
of such Claim. If the Responding Party assumes the defense of a proceeding, no compromise or settlement of such Claims may be effected
by the Responding Party without the Claiming Party's consent unless (x) there is no finding or admission of any violation of Law
or any violation of the rights of any Person and no adverse effect on any other Claims that may be made against the Claiming Party and
(y) the sole relief provided is monetary damages that are paid in full by the Responding Party.


 


(c)       If
(i) notice is given to the Responding Party of the commencement of any third-party legal proceeding and the Responding Party does
not, within 30 days after the Claiming Party's notice is given, give notice to the Claiming Party of its election to assume the defense
of such legal proceeding, (ii) any of the conditions set forth in clauses (i) through (iii) of Section 9.5(b) above
become unsatisfied or (iii) a Claiming Party determines in good faith that there is a reasonable probability that a legal proceeding
may adversely affect it other than as a result of monetary damages for which it would be entitled to indemnification from the Responding
Party under this Agreement, then the Claiming Party shall (upon notice to the Responding Party) have the right to undertake the defense,
compromise or settlement of such Claim; provided, however, that the Responding Party shall reimburse the Claiming Party for the costs
of defending against such third-party Claim (including reasonable attorneys' fees and expenses) and shall remain otherwise responsible
for any Liability with respect to amounts arising from or related to such third-party Claim, to the extent it is ultimately determined
that such Responding Party is liable with respect to such third-party Claim for a breach under this Agreement. The Responding Party may
elect to participate in such legal proceedings, negotiations or defense at any time at its own expense.


 






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ARTICLE X. MISCELLANEOUS


 


Section 10.1.               Notices.


 


(a)       Unless
this Agreement specifically requires otherwise, any notice, demand or request provided for in this Agreement, or served, given or made
in connection with it, shall be in writing and shall be deemed properly served, given or made if delivered in person or sent by registered
or certified mail, postage prepaid, or by a nationally recognized overnight courier service that provides a receipt of delivery, in each
case, to the Parties at the addresses specified below:


 


If to Buyer, to:


 


Consumers Energy Company


One Energy Plaza


Jackson, MI 49201


Attn: President


 


With copies to:


 


Consumers Energy Company


One Energy Plaza


Jackson, MI 49201


Attn: General Counsel


 


If to Seller, to:


 


c/o CMS Enterprises


One Energy Plaza


Jackson, MI 49201


Attn: Richard R. Mukhtar


 


With copies to:


 


Pillsbury Winthrop Shaw Pittman LLP


31 West 52nd Street


New York, NY 10019


Attn: Mona E. Dajani


 






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(b)       Notice
given by personal delivery, mail or overnight courier pursuant to this Section 10.1 shall be effective upon physical receipt.


 


Section 10.2.               Entire
Agreement.


 


This Agreement supersedes
all prior discussions and agreements between the Parties with respect to the subject matter hereof, and this Agreement, the Ancillary
Agreements and the other documents delivered pursuant to this Agreement contain the sole and entire agreement between the Parties hereto
with respect to the subject matter hereof.


 


Section 10.3.               Expenses.


 


Except as otherwise expressly
provided in this Agreement, whether or not the transactions contemplated hereby are consummated, each Party will pay its own costs and
expenses incurred in anticipation of, relating to and in connection with the negotiation and execution of this Agreement and the transactions
contemplated hereby.


 


Section 10.4.               Disclosure.


 


From time to time prior to
the Closing Date, Seller will add, supplement or amend and deliver updates to with respect to any
matter hereafter arising or discovered which, if existing or known as of the date of this Agreement or thereafter, would have been required
to be set forth or described in such Schedules or as necessary to complete or correct any information in such Schedules or include
in the Schedules items that are not material in order to avoid any misunderstanding. Any such inclusion, or any references to dollar amounts,
shall not be deemed to be an acknowledgment or representation that such items are material, to establish any standard of materiality or
to define further the meaning of such terms for purposes of any provision of this Agreement that establishes a standard of materiality.
Information disclosed in any Schedule shall constitute a disclosure for purposes of all other Schedules notwithstanding the lack of specific
cross-reference thereto, but only to the extent the applicability of such disclosure to such other Schedule is relevant to the other Schedule
and reasonably apparent. For purposes of determining whether the conditions set forth in ARTICLE VI
 have been fulfilled, the Schedules to Seller’s representations and warranties contained in this Agreement shall be deemed
to include only that information contained therein on the date of this Agreement and shall be deemed to exclude all information contained
in any addition, supplement or amendment thereto; provided, however, that if Closing shall occur, then all matters disclosed
pursuant to any such addition, supplement or amendment at or prior to Closing shall be waived and deemed part of the Schedules for all
purposes. Disclosure of such additional information will not be deemed to enlarge or enhance any of the representations or warranties
in this Agreement.


 


Section 10.5.               Waiver.


 


Any term or condition of this
Agreement may be waived at any time by the Party that is entitled to the benefit thereof, but no such waiver shall be effective unless
set forth in a written instrument duly executed by or on behalf of the Party waiving such term or condition. No waiver by any Party of
any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by Law or otherwise afforded,
will be cumulative and not alternative.


 






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Section 10.6.               Amendment.


 


This Agreement may be amended,
supplemented or modified only by a written instrument duly executed by or on behalf of each Party.


 


Section 10.7.               No
Third-Party Beneficiary.


 


Except for the provisions
of Section 9.1(a) and (b) (which are intended for the benefit of the Persons identified therein), the terms and provisions
of this Agreement are intended solely for the benefit of the Parties and their respective successors or permitted assigns, and it is not
the intention of the Parties to confer third-party beneficiary rights upon any other Person, including, without limitation, any employee,
any beneficiary or dependents thereof, or any collective bargaining representative thereof.


 


Section 10.8.               Assignment;
Binding Effect.


 


Buyer may assign its rights
and obligations hereunder to any Affiliate or Affiliates, or to Buyer's lenders for collateral security purposes, but such assignment
shall not release Buyer from its obligations hereunder. Except as provided in the preceding sentence, neither this Agreement nor any right,
interest or obligation hereunder may be assigned by any Party without the prior written consent of the other Party, and any attempt to
do so will be void, except for assignments and transfers by operation of Law. Subject to this Section 10.8, this Agreement is binding
upon, inures to the benefit of and is enforceable by the Parties and their respective successors and permitted assigns.


 


Section 10.9.               Headings.


 


The headings used in this
Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof.


 


Section 10.10.             Invalid
Provisions.


 


If any provision of this Agreement
is held to be illegal, invalid or unenforceable under any present or future Law, and if the rights or obligations of any Party under this
Agreement will not be materially and adversely affected thereby, such provision will be fully severable, this Agreement will be construed
and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, the remaining provisions of this
Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance
herefrom and in lieu of such illegal, invalid 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 illegal, invalid or unenforceable provision as may be possible.


 


Section 10.11.             Counterparts;
Facsimile.


 


This Agreement may be executed
in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
Any electronic or facsimile copies hereof or signature hereon shall, for all purposes, be deemed originals.


 






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Section 10.12.             Governing
Law; Venue; and Jurisdiction.


 


(a)       This
Agreement shall be governed by and construed in accordance with the Laws of the State of Michigan, without giving effect to any conflict
or choice of law provision that would result in the imposition of another state's Law.


 


(b)      THE
PARTIES HEREBY IRREVOCABLY AGREE THAT THE EXCLUSIVE JURISDICTION TO HEAR ANY CIVIL ACTIONS ARISING OUT OF OR RELATED TO THIS AGREEMENT
SHALL BE IN ANY STATE OR FEDERAL COURT IN THE STATE OF MICHIGAN AND EACH PARTY HEREBY SUBMITS AND CONSENTS TO THE JURISDICTION OF SUCH
COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING THAT IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. EACH PARTY HEREBY WAIVES, AND SHALL NOT ASSERT AS A DEFENSE IN ANY LEGAL DISPUTE, THAT (A) SUCH PARTY IS NOT SUBJECT THERETO,
(B) SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SUCH COURT, (C) SUCH PARTY'S PROPERTY
IS EXEMPT OR IMMUNE FROM EXECUTION UNDER SUCH COURT'S JURISDICTION, (D) SUCH ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM OR (E) THE VENUE OF SUCH ACTION, SUIT OR PROCEEDING IS IMPROPER. EITHER PARTY FURTHER AGREES IT WILL NOT OBJECT TO ANY MOTION
TO TRANSFER A SUIT, ACTION OR PROCEEDING FILED IN ANY OTHER FORUM TO SUCH COURT. A FINAL JUDGMENT IN ANY ACTION, SUIT OR PROCEEDING DESCRIBED
IN THIS Section 10.12 FOLLOWING THE EXPIRATION OF ANY PERIOD PERMITTED FOR APPEAL AND SUBJECT TO ANY STAY DURING APPEAL SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE LAWS.


 


(c)       EACH
PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY.


 


Section 10.13.             No
Partnership or Joint Venture.


 


The Parties do not intend
to create a partnership or joint venture by virtue of this Agreement. No Party shall owe any fiduciary duty to any other Party by virtue
of this Agreement, any Ancillary Agreement or otherwise.


 






    48 


     


    

 


Section 10.14.             Acknowledgment.


 


(a)       BUYER
ACKNOWLEDGES THAT NEITHER SELLER NOR ANY OTHER PERSON HAS MADE ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, AS TO THE ACCURACY
OR COMPLETENESS OF ANY INFORMATION REGARDING SELLER OR THE CONDITION OF THE PURCHASED ASSETS, VALUE OR QUALITY OF THE PURCHASED ASSETS
OR OPERATIONS OR THE PROSPECTS, (FINANCIAL OR OTHERWISE), RISKS, AND OTHER INCIDENTS OF SELLER NOT INCLUDED IN THIS AGREEMENT AND THE
SCHEDULES. Nothing in this Section shall preclude Buyer from bringing a claim against Seller
for fraud.


 


(b)       EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN OR IN THE ANCILLARY AGREEMENTS, SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR
NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF THE ASSETS OR OPERATIONS OF SELLER OR THE PROSPECTS (FINANCIAL AND
OTHERWISE), RISKS AND OTHER INCIDENTS OF SELLER AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE, SUITABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO SUCH ASSETS, OR ANY PART THEREOF, OR AS TO THE WORKMANSHIP THEREOF, OR THE
ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, OR COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS, OR AS TO THE CONDITION OF, OR
THE RIGHTS OF SELLER IN, OR ITS TITLE TO, ANY OF ITS ASSETS, OR ANY PART THEREOF. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN THE RELATED
AGREEMENTS, NO MATERIAL OR INFORMATION PROVIDED BY OR COMMUNICATIONS MADE BY SELLER OR ANY OF THEIR RESPECTIVE REPRESENTATIVES WILL CAUSE
OR CREATE ANY WARRANTY, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF SUCH ASSETS. Nothing
in this Section shall preclude Buyer from bringing a claim against Seller for fraud.


 


[signature page follows]


 






    49 


     


    

 


IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized representative of each Party as
of the date first above written.


 


	 	SELLER:
	 	 	 
	 	DEARBORN INDUSTRIAL GENERATION, L.L.C.
	 	 	 
	 	 	 
	 	By:	/s/ Richard M. Mukhtar
	 	Name:	Richard M. Mukhtar
	 	Title:	President and Chief Executive Officer
	 	 	 
	 	CMS GENERATION MICHIGAN POWER, L.L.C.
	 	 	 
	 	By:	/s/ Richard M. Mukhtar
	 	Name:	Richard M. Mukhtar
	 	Title:	President and Chief Executive Officer
	 	 	 
	 	 	 
	 	CMS ENERGY RESOURCE MANAGEMENT COMPANY
	 	 	 
	 	By:	/s/ Richard M. Mukhtar
	 	Name:	Richard M. Mukhtar
	 	Title:	President and Chief Executive Officer
	 	 	 
	 	 	 
	 	BUYER:
	 	 	 
	 	CONSUMERS ENERGY COMPANY
	 	 	 
	 	 	 
	 	By:	/s/ Garrick J. Rochow
	 	Name:	Garrick J. Rochow
	 	Title:	President and Chief Executive Officer