Exhibit 2.1

EXECUTION VERSION

This CONTRIBUTION AGREEMENT (this “Agreement”) is entered into as of May 19, 2022, by and between GREENBACKER GROUP LLC, a Delaware limited liability company (“Group LLC”), and GREENBACKER RENEWABLE ENERGY COMPANY LLC, a Delaware limited liability company ( “GREC LLC”). GREC LLC and Group LLC are collectively referred to herein as the “Parties,” and each, a “Party.” Capitalized terms used in this Agreement shall have the meanings ascribed to such terms in Article VIII to this Agreement.

RECITALS

WHEREAS, GREC LLC is an externally managed clean energy company that operates to acquire and manage income-generating renewable energy and energy efficiency and sustainable development projects and other energy related businesses, as well as to finance the construction and/or operation of the foregoing;

WHEREAS, Greenbacker Capital Management LLC, a Delaware limited liability company (“Manager”) and wholly owned subsidiary of Group LLC, is a renewable energy, energy efficiency, and sustainability related project acquisition, advisory, consulting, and development company that is registered as an investment adviser under the Investment Advisers Act of 1940, and is retained by GREC LLC as the external manager to furnish advisory and management services to it and its subsidiaries;

WHEREAS, GREC LLC currently conducts substantially all of its business through its wholly owned subsidiary, Greenbacker Renewable Energy Corporation, a Maryland corporation (“GREC Corp”);

WHEREAS, the Parties desire to internalize the management functions of the Manager and certain other entities which provide investment advisory, administrative, and other services to GREC LLC within GREC Corp;

WHEREAS, upon completion of the management internalization, GREC Corp will operate as a fully integrated and internally managed clean energy ownership, development, and finance company that will also offer asset management services to managed funds and other third parties;

WHEREAS, in addition to Group LLC’s ownership of all of the issued and outstanding membership interests in Manager (the “Manager Interests”), prior to the date hereof, Group LLC acquired the 1% membership interest that it did not already hold in each of Greenbacker Administration, LLC, a Delaware limited liability company (“Administration LLC”), which provides administrative services, and Greenbacker Holdings LLC, a Delaware limited liability company (“Holdings LLC”), which provides payroll and personnel services, from MP Channelview LLC, resulting in Group LLC owning all of issued and outstanding membership interests in each of Administration LLC (the “Administration Interests”) and Holdings LLC (the “Holdings Interests”) as of the date hereof;

WHEREAS, in addition, Group LLC owns a seventy-five percent (75%) membership interest (the “GDOGP Interests,” and together with the Administration Interests, Holdings Interests, and Manager Interests, the “Contributed Interests”) in Greenbacker Development Opportunities GP I, LLC, a Delaware limited liability company (“GDOGP,” and together with Administration LLC, Holdings LLC, and the Manager, the “Contributed Companies”);

WHEREAS, in furtherance of the management internalization, Group LLC will transfer and contribute all of its right, title, and interest in and to the Contributed Interests and the Contributed Assets (as herein defined) to GREC LLC, subject to the Assumed Liabilities (as herein defined) and the terms and conditions set forth in this Agreement, in exchange for (i) 24,365,133 Class P-I common shares, par value $0.001 per share, of GREC LLC (the “GREC LLC Common Shares”), and (ii) 13,071,153 Class EO Common Shares, par value $0.001 per share, of GREC LLC (the “Earnout Shares” and collectively, such contribution and assignment is referred to herein as the “Contribution”);

WHEREAS, immediately following the consummation of the Contribution, it is contemplated that GREC LLC shall contribute all of the Contributed Interests and Contributed Assets, subject to certain assumed liabilities, to GREC Corp in exchange for 9,162,012 shares of common stock, par value $0.001 per share, of GREC Corp (the “Second Contribution,” and together with the Contribution, the “Internalization Transaction”);

WHEREAS, it is contemplated that following the Second Contribution, Group LLC may, subject to the terms and conditions specified in this Agreement, distribute, transfer, and assign, the GREC LLC Common Shares and Earnout Shares it receives in connection with the Contribution to its members;

WHEREAS, in accordance with the terms of the Fourth Amended and Restated Limited Liability Company Operating Agreement of GREC LLC, dated as of November 17, 2020 (such operating agreement, as amended through the date of this Agreement, the “GREC LLCA”), a wholly owned subsidiary of the Manager is the holder of a special unit of membership interest in GREC LLC (the “Special Unit”), which entitled it to receive (i) quarterly performance payments based on increases in net asset value and distributions made by GREC LLC to its members during the quarter (the “Quarterly Performance Feature”), and (ii) until completion of the transaction described in the next recital, additional amounts based on returns achieved by GREC LLC members upon the occurrence of a Liquidation or Listing (as defined in the GREC LLCA) undertaken by GREC LLC (the “Liquidation Performance Feature”);

WHEREAS, the Special Unit shall be entitled to a zero balance in its Capital Account (as defined in the GREC LLCA) as of immediately prior to the Internalization Transaction, and is being contributed in connection with the Internalization Transaction, and thereafter will be cancelled and terminated, and because the amounts, if any, payable in respect of the Liquidation Performance Feature of the Special Unit is not determinable until the occurrence of a liquidity event described in the GREC LLCA, a new membership interest (the “Liquidation Performance Unit”), the terms of which are set forth in that certain Fifth Amended and Restated Limited Liability Company Agreement which will be adopted concurrently with the execution of this Agreement (as so amended, the “Amended GREC LLCA”) and which provides for the payment of an incentive distribution based on the Liquidation Performance Feature of the existing Special Unit was issued by GREC LLC to a newly formed and wholly owned subsidiary of Group LLC;

WHEREAS, following the Second Contribution, Holdings LLC will merge with and into Administration LLC, with Administration LLC surviving the merger; and

WHEREAS, the independent directors of the Board of Directors of GREC LLC, who represent a majority of the Board of Directors of GREC LLC, in consultation with the independent directors’ independent financial and legal advisors, have evaluated and negotiated the terms of this Agreement, the Internalization Transaction, and the other transactions contemplated by this Agreement, have unanimously approved this Agreement, the Internalization Transaction, and the other transactions contemplated by this Agreement, and have determined that this Agreement, the Internalization Transaction, and the other transactions contemplated by this Agreement are fair and reasonable to GREC LLC and reflect terms and conditions not less favorable to GREC LLC than those available from unaffiliated third parties, and that the consideration offered by GREC LLC in such transaction is not in excess of the appraised value of the consideration received by GREC LLC in such transaction; and

WHEREAS, the board of directors of Group LLC have evaluated and negotiated the terms of this Agreement, the Internalization Transaction, and the other transactions contemplated by this Agreement, and have unanimously approved this Agreement, the Internalization Transaction, and the other transactions contemplated by this Agreement, and determined that this Agreement, the Internalization Transaction, and the other transactions contemplated by this Agreement are fair and reasonable to Group LLC.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Article I

CONTRIBUTION

Section 1.1.      Contribution of the Contributed Interests and Contributed Assets. At the Closing, upon and subject to the terms and conditions of this Agreement, Group LLC will contribute, convey, transfer, assign, and deliver to GREC LLC, all of its right, title, and interest in and to the Contributed Interests and the assets set forth on the Schedule 1.1: Contributed Assets Schedule hereto (the “Contributed Assets”), in exchange for the Consideration to be delivered by GREC LLC to Group LLC, and GREC LLC will accept contribution of, and good and valid title to, (a) the Contributed Interests, free and clear of all Encumbrances, other than restrictions on transfer under applicable securities Laws, or the terms of any agreement entered into prior to the date of this Agreement between the Parties, and (b) the Contributed Assets, and GREC LLC shall assume the Assumed Liabilities (defined below).

Section 1.2.      Excluded Assets. Notwithstanding any provision of this Agreement to the contrary, GREC LLC shall not acquire, and there shall be excluded from the Contributed Assets, each of the assets set forth on the Schedule 1.2: Excluded Assets Schedule hereto (the “Excluded Assets”).

Section 1.3.      Assumed Liabilities. On the terms and subject to the conditions set forth in this Agreement, at the Closing, GREC LLC shall assume from Group LLC the liabilities and obligations of Group LLC solely to the extent set forth on, or described in, Schedule 1.3(a): Assumed Liabilities Schedule hereto (each an “Assumed Liability” and, collectively, the “Assumed Liabilities”) and thereafter pay, perform, and otherwise discharge the Assumed Liabilities in accordance with their terms. Except for the Assumed Liabilities, nothing contained in any Transaction Document shall be interpreted or construed to result in the assumption by GREC LLC, or result in GREC LLC becoming in any way liable for, any Liabilities of Group LLC, any obligations or Liabilities relating to or incurred in connection with the Excluded Assets, or any of the liabilities set forth on, or described in, the Schedule 1.3(b): Excluded Liabilities Schedule hereto (each an “Excluded Liability” and, collectively, the “Excluded Liabilities”).

Section 1.4.       Consideration.

(a)       The aggregate consideration for the Contributed Interests and Contributed Assets shall be payable in the form of (i) the GREC LLC Common Shares, with such consideration, and the net asset value calculation as of the Effective Time of the resulting number of the GREC LLC Common Shares to be issued, being set forth on the Schedule 1.4: Consideration Schedule hereto (the “Consideration”), and (ii) the Earnout Shares.

(b)       At the Closing, GREC LLC shall issue and deliver to Group LLC the GREC LLC Common Shares and Earnout Shares and register such shares in the name of Group LLC (or its respective nominees), free and clear of all Encumbrances, other than restrictions on transfer under applicable securities Laws, pursuant to the Amended GREC LLCA, the Certificate of Designation, or the terms of any agreement entered into between the Parties.

Section 1.5.      Pre-Closing Deliveries. At least three (3) Business Days prior to the Closing, Group LLC will deliver or cause to be delivered to GREC LLC:

(a)       a certificate (the “Estimated Consideration Certificate”), prepared in accordance with GAAP, setting forth good-faith estimates of the Transaction Expenses, Leakage, and valuation and the net asset value per share valuation of the GREC LLC Common Shares (together, the “Valuation”) based upon the unaudited financial statements of GREC LLC as of December 31, 2021, and based upon such estimates, a calculation of the estimated Consideration (such estimated Consideration as shown in the Estimated Consideration Certificate is referred to as the “Estimated Consideration”). Group LLC and GREC LLC will work in good faith to resolve any differences they may have with respect to any of the information in the Estimated Consideration Certificate (and Group LLC will provide GREC LLC with reasonable supporting documentation for such information on GREC LLC’s request); and

(b)       all final bills and wire-transfer instructions from each obligee of any Transaction Expenses.

Section 1.6.      Adjustment Procedure.

(a)       Within sixty (60) days after the Closing Date, GREC LLC will prepare in good faith and deliver to Group LLC a statement (the “Closing Financial Statement”) prepared in accordance with GAAP, setting forth GREC LLC’s calculations of the Transaction Expenses, Leakage, and Valuation based upon the audited financial statements of GREC LLC as of December 31, 2021, and its resultant calculation of the Consideration based thereon, together with supporting calculations.

(b)       If Group LLC disagrees with GREC LLC’s calculations of the Transaction Expenses, Leakage, Valuation, or Consideration, Group LLC will notify GREC LLC in writing of such disagreement within forty-five (45) calendar days after delivery of the Closing Financial Statement to Group LLC, which notice will describe the nature of any such disagreement in reasonable detail, identify the specific items involved and the dollar amount of each such disagreement, and provide reasonable supporting documentation for each such disagreement. If Group LLC fails to deliver such a notice of disagreement within this forty-five (45) calendar day period, then GREC LLC’s calculations as shown on the Closing Financial Statement will be final and binding.

(c)       Each of GREC LLC and Group LLC will provide the other of them and its Representatives with reasonable access to books and records and relevant personnel for purposes of resolving any disagreements that arise under this Section 1.6, and to negotiate in good faith to resolve any such disagreement. If GREC LLC and Group LLC are unable to resolve all disagreements raised by Group LLC pursuant to Section 1.6(b) within forty-five (45) calendar days after delivery to GREC LLC of Group LLC’s written notice of such disagreement, then such disagreements will be submitted for final and binding resolution to the greater New York City office of a mutually-agreed and nationally recognized accounting firm (the “Accounting Expert”). The scope of the disputes to be resolved by the Accounting Expert shall be limited to whether Leakage was calculated in accordance with the provisions defining such term and whether there were mathematical errors in the Closing Financial Statement, and the Accounting Expert is not to make any other determination, including any determination as to whether GAAP was followed for the Financial Statements and the Closing Financial Statement. The Accounting Expert’s decision shall be based solely on the written submissions by Group LLC and GREC LLC and their respective Representatives and not by independent review. The Accounting Expert will deliver to GREC LLC and Group LLC, as promptly as practicable after its appointment, a written report setting forth the resolution of each such disagreement determined in accordance with GAAP and the terms of this Agreement, which, as to each amount in disagreement, will be an amount no less than the lesser of the amounts claimed by either GREC LLC or Group LLC, and no greater than the greater of the amounts claimed by either GREC LLC or Group LLC. The determinations of the Accounting Expert will be final and binding. The fees and expenses of the Accounting Expert incurred in connection with its determination of the disputed items will be paid jointly, one-half by GREC LLC and one-half by Group LLC. Other than such fees and expenses of the Accounting Expert, each of GREC LLC and Group LLC will be responsible for their own costs and expenses incurred in connection with any actions taken pursuant to this Section 1.6.

(d)       Following the Closing and until the expiration of the Survival Period, (i) GREC LLC shall not take any action with respect to the accounting books and records of the Contributed Companies, or the items reflected thereon, on which the Closing Financial Statement is to be based that is not consistent with the Contributed Companies’ past practices and (ii) without limiting the generality of the foregoing, GREC LLC shall not make any changes in any reserve or other general ledger account existing as of the date of the Financial Statements. During the period of time from and after the Closing Date through the determination of the Final Consideration in accordance with this Section 1.6, GREC LLC shall afford, and shall cause the Contributed Companies to afford, to Group LLC and the accountants, counsel, and/or financial advisers retained by Group LLC in connection with the determination of the Final Consideration in accordance with this Section 1.6 reasonable access during normal business hours to all the properties, books, contracts, personnel and records of the Contributed Companies relevant to the determination of the Final Consideration in accordance with this Section 1.6. In furtherance of the foregoing, GREC LLC shall cause the Contributed Companies to deliver promptly to Group LLC copies of all bills or invoices received by the Contributed Companies subsequent to the Closing Date relating to fees or expenses owed by the Contributed Companies or which otherwise relate to the transactions contemplated hereby.

(e)       The Consideration as finally determined pursuant to Section 1.6(b) or Section 1.6(c), as the case may be, is referred to as the “Final Consideration.”

(f)       The Valuation as finally determined pursuant to Section 1.6(b) or Section 1.6(c), as the case may be, is referred to as the “Final Valuation,” and any GREC LLC Common Shares issued or forfeited in connection with this Agreement will be at the Final Valuation and determined pursuant to the Schedule 1.4: Consideration Schedule hereto.

Section 1.7.      Consideration Adjustment.

(a)       If the Final Consideration is less than the Estimated Consideration (the difference between the two being a “Negative Consideration Adjustment”), then no later than five (5) Business Days following the determination of the Final Consideration, GREC LLC will cancel, and Group LLC will forfeit any and all right to, the number of GREC LLC Common Shares issued to Group LLC and equal in value to the Negative Consideration Adjustment, with the value and resulting number of such GREC LLC Common Shares to be determined pursuant to the Final Valuation and the Schedule 1.4: Consideration Schedule hereto and to be satisfied in the first instance from the Consideration Adjustment Holdback Shares.

(b)       If the Final Consideration is greater than the Estimated Consideration (the difference between the two being a “Positive Consideration Adjustment”), then no later than five (5) Business Days following the determination of the Final Consideration, GREC LLC will issue and deliver to Group LLC the number of GREC LLC Common Shares equal in value to the Positive Consideration Adjustment, and register such GREC LLC Common Shares in the name of Group LLC (or its respective nominees), free and clear of all Encumbrances, other than restrictions on transfer under applicable securities Laws, pursuant to the Amended GREC LLCA, the Certificate of Designation, or the terms of any agreement entered into between the Parties, with the value and resulting number of such GREC LLC Common Shares to be determined pursuant to the Final Valuation and the Schedule 1.4: Consideration Schedule hereto.

(c)       Any adjustments made pursuant to this Section 1.7 will be treated for tax purposes as an adjustment to the net value of the Contributed Assets in respect of the Consideration by the Parties, unless otherwise required by Law.

Section 1.8.      Intended Tax Treatment. The Contribution and the transfer of the Contributed Assets to GREC LLC is intended to be treated for U.S. federal income tax purposes as a contribution of property in exchange for the GREC LLC Common Shares and Earnout Shares under Section 721 of the Code, except to the extent that Group LLC receives or is deemed to receive any consideration other than GREC LLC Common Shares and Earnout Shares. The parties hereto agree to the foregoing treatment, agree not to take any position inconsistent with such treatment unless otherwise required by applicable law, agree not to take any action on or following the Closing Date that significantly reduces the likelihood that Contribution will be so treated. If any person that directly or indirectly receives interests in GREC LLC in the Contribution subsequently becomes entitled to receive a distribution of shares of GREC Corp from GREC LLC, GREC LLC shall endeavour, to the extent reasonably practicable, to cause the shares of GREC Corp distributed to such person to be the GREC Corp shares identified in Section 2(a)(iii) of the Second Contribution Agreement, to the extent necessary to prevent the application of Sections 707(a)(2)(B), 737 and 704(c)(1)(B) of the Code to such distribution. GREC LLC shall not treat any such distribution as resulting in the application of any of Sections 707(a)(2)(B), 737 or 704(c)(1)(B) of the Code to such distribution in a manner that results in the recognition of any gain relating to the Contribution except as required by applicable Law.

Section 1.9.      Group LLC Assignment of Certain Contracts.

(a)       At the Closing, and effective as of the Closing Date, GREC LLC shall succeed to the rights and privileges of Group LLC, and shall perform, or cause its subsidiaries to perform, at and after the Closing Date, all Contracts and Permits related to the Business, each of which is set forth on the Schedule 1.9: Assigned Contracts Schedule hereto (the “Assigned Contracts”).

(b)       Group LLC and GREC LLC shall take all commercially reasonable actions and do or cause to be done all commercially reasonable things in cooperation with one another to assure that the rights of each of the Contributed Companies under such Assigned Contracts or Permits shall be preserved for the benefit of GREC LLC and transferred or issued to GREC LLC, including with respect to any Permit from a Governmental Entity the consent of such Governmental Entity, or the issuance of a replacement Permit in the name of GREC LLC, is received.

Section 1.10.     Earnout Shares. As a condition to the parties consummating the Internalization Transaction contemplated hereby, GREC LLC and the Board of Directors of GREC LLC have agreed to (a) approve, create, and designate the Class EO Common Shares as a new class of shares of GREC LLC, pursuant to the Certificate of Designation, and (b) issue the Earnout Shares at Closing to Group LLC as contemplated herein. The obligations of GREC LLC set forth in the Certificate of Designation with respect to the Earnout Shares are incorporated by reference into this Agreement. Any breach of GREC LLC’s agreements, covenants, or obligations set forth in the Certificate of Designation with respect to the Earnout Shares shall be deemed to be a breach of this Agreement, and the holders of the Earnout Shares are expressly made third party beneficiaries of this Agreement notwithstanding that the holders of the Earnout Shares are not signatories to this Agreement or the Certificate of Designation, and they shall have the right to enforce such agreements and the rights of Group LLC directly under this Agreement to the extent they may deem such enforcement necessary or advisable to protect its or their rights, whether individually or collectively.

Article II

CLOSING

Section 2.1.        Closing. The closing of the transactions contemplated hereby (the “Closing”), will take place on the date hereof contemporaneously with the execution and delivery of this Agreement and all other Transaction Documents by the Parties, and the other parties who or which are parties thereto, remotely by means of email, or other electronic transmission of documents, or at such other place, time, and/or date as the Parties may mutually agree to in writing (the “Closing Date”). The Closing will be effective as of 11:59 p.m. (New York time) on the Closing Date.

Section 2.2.         Closing Actions and Documents. At the Closing:

(a)         Group LLC will:

(i)           deliver to GREC LLC a completed IRS Form W-9;

(ii)          deliver to GREC LLC a certificate duly executed by the Secretary or other authorized officer of Group LLC, certifying as to:

(A)       resolutions of Group LLC’s managers and/or members, as applicable, if necessary, authorizing the execution, delivery, and performance of the Transaction Documents to which Group LLC is a party; and

(B)       the incumbency of any and all of Group LLC’s officers or managers executing the Transaction Documents on behalf of Group LLC; and

(b)         deliver to GREC LLC a certificate of good standing, dated not earlier than twenty (20) Business Days preceding the Closing Date, for Group LLC and each of the Contributed Companies, from their respective jurisdictions of formation.

(c)          GREC LLC will:

(i)           issue and deliver to Group LLC the GREC LLC Common Shares and Earnout Shares and register such GREC LLC Common Shares and Earnout Shares in the name of Group LLC (or its respective nominees), free and clear of all Encumbrances, other than restrictions on transfer under applicable securities Laws, pursuant to the Amended GREC LLCA, the Certificate of Designation, or the terms of any agreement entered into between the Parties;

(ii)          deliver to Group LLC a certificate duly executed by the Secretary or other authorized officer of GREC LLC, certifying as to:

(A)       resolutions of the independent directors of the Board of Directors of GREC LLC authorizing the execution, delivery, and performance of the Transaction Documents to which GREC LLC is a party;

(B)       the Certificate of Designation, duly approved by the Board of Directors of GREC LLC, reflecting the creation and designation of the Earnout Shares to be issued to Group LLC as contemplated by this Agreement; and

(C)       the incumbency of any and all officers of GREC LLC executing the Transaction Documents on behalf of GREC LLC;

(iii)         deliver to Group LLC a certificate of good standing, dated not earlier than twenty (20) Business Days next preceding the Closing Date, for GREC LLC from its jurisdiction of formation; and

(iv)         pay the Transaction Expenses as set forth in the bills and wire transfer instructions delivered to Group LLC pursuant to Section 1.5(b).

(d)         Each of the Parties will deliver or cause to be delivered to each other:

(i)           a duly executed bill of sale and assignment and assumption agreement, substantially in the form attached hereto as Exhibit B, transferring, assigning, and delivering the Contributed Interests, free and clear of all Encumbrances, other than restrictions on transfer under applicable securities Laws, or the terms of any agreement entered into between the Parties, and the Contributed Assets, and effecting the assumption of the Assumed Liabilities (the “Bill of Sale and Assignment and Assumption Agreement”);

(ii)          a duly executed Amended GREC LLCA, substantially in the form attached hereto as Exhibit A;

(iii)         the Certificate of Designation, duly approved by the Board of Directors of GREC LLC, reflecting the creation and designation of the Earnout Shares to be issued to Group LLC as contemplated by this Agreement, substantially in the form attached hereto as Exhibit E;

(iv)         a duly executed transition services agreement, substantially in the form attached hereto as Exhibit C (the “Transition Services Agreement”);

(v)         duly executed assignment of contracts agreement for each of the Assigned Contracts set forth on the Schedule 1.9: Assigned Contracts Schedule hereto, duly executed by Group LLC (or any of its Affiliates), any relevant Third Parties (if applicable), and GREC LLC, assigning, transferring, and assuming the Assigned Contracts;

(vi)        a duly executed trademark assignment agreement;

(vii)       such other certificates, documents, or instruments as may be reasonably required to effect the consummation of the transactions contemplated by this Agreement.

Article III
REPRESENTATIONS AND WARRANTIES OF GROUP LLC

Except as set forth in, or qualified by any matter set forth in, the Group LLC Disclosure Schedules (it being agreed that the disclosure of any matter in any section in the Group LLC Disclosure Schedules shall be deemed to have been disclosed in any other section in the Group LLC Disclosure Schedules to which the applicability of such disclosure is reasonably apparent on its face), Group LLC represents and warrants to GREC LLC as of the date of this Agreement as follows:

Section 3.1.       Organization and Good Standing. Each of Group LLC and the Contributed Companies is a limited liability company duly organized, validly existing, and in good standing under the Laws of the State of Delaware. Each of Group LLC and the Contributed Companies is duly authorized to conduct its business and is in good standing under the applicable Laws of each jurisdiction where such qualification is required, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect. Each of Group LLC and the Contributed Companies has the requisite power and authority necessary to own or lease its properties and to carry on the Business as presently conducted. Each of Group LLC and the Contributed Companies has delivered to GREC LLC complete and correct copies of its Organizational Documents, as amended to date. Each of Group LLC and the Contributed Companies is in material compliance with its Organizational Documents and no member of the Contributed Companies is in material default or violation of any provision of such Organizational Documents. There is no pending or, to Group LLC’s Knowledge, threatened Action for the dissolution, liquidation or insolvency of Group LLC or the Contributed Companies.

Section 3.2.      Power and Authority; Due Authorization; Enforceability. Each of Group LLC and the Contributed Companies has all requisite limited liability company power and authority to enter into each of the Transaction Documents to which it is a party and to consummate the transactions contemplated thereby. The execution and delivery of each of the Transaction Documents by Group LLC and the Contributed Companies and the consummation by Group LLC and the Contributed Companies of the transactions contemplated thereby have been duly authorized by all necessary limited liability company action on their respective parts. Each of the Transaction Documents has been, or upon execution and delivery will be, duly executed and delivered by Group LLC and the Contributed Companies, as applicable, and assuming the due authorization, execution, and delivery of such Transaction Documents by the other Parties thereto, will constitute, the valid and binding obligations of Group LLC and the Contributed Companies, enforceable against Group LLC and the Contributed Companies in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

Section 3.3.      No Conflicts; Required Consents. Except as provided in Schedule 3.3 of the Group LLC Disclosure Schedules, the execution and delivery of the Transaction Documents by Group LLC do not, and the performance by Group LLC and the Contributed Companies of the transactions contemplated hereby or thereby will not, (a) violate, conflict with, or result in any breach of any provision of their respective Organizational Documents, (b) violate, conflict with, or result in a violation or breach of, or constitute a default (with or without due notice or lapse of time or both) under, or permit the termination of, or result in the acceleration of, or entitle any Person to accelerate any obligation of Group LLC, or result in the loss of any benefit, or give rise to the creation of any Encumbrance on any property or asset of the Contributed Companies or otherwise used in the Business under any of the terms, conditions, or provisions of any material instrument or obligation to which any property or asset of the Contributed Companies or otherwise used in the Business may be bound or subject, or (c) violate any material Law applicable to Group LLC or by which or to which any property or asset of the Contributed Companies or otherwise used in the Business is bound or subject. Schedule 3.3 of the Group LLC Disclosure Schedules sets forth a complete and accurate list of each material consent, approval, waiver, and authorization that is required to be obtained by any of Group LLC or the Contributed Companies from, and each material notice that is required to be made by any of Group LLC or the Contributed Companies, as applicable, to any Person in connection with the execution, delivery and performance by Group LLC of this Agreement.

Section 3.4.      Capitalization; Title.

(a)      Set forth on Schedule 3.4(a) of the Group LLC Disclosure Schedules is a true and complete of the list of the following with respect to each member of the Contributed Companies other than Group LLC: (i) the name and jurisdiction of organization of such Contributed Company, (ii) the issued and outstanding equity interests of such Contributed Company and the beneficial and record holder(s) thereof, and (iii) the directors and managers of each Contributed Company.

(b)      Group LLC is the lawful record and beneficial owner of, and has good and valid title to, the Contributed Interests free and clear of all Encumbrances, other than restrictions on transfer under applicable securities Laws, or the terms of any agreement entered into between the Parties. There are no outstanding options, warrants, Contracts, calls, puts, rights to subscribe, conversion rights, profits participation rights, rights of first refusal or rights of first offer, preemptive rights or other similar rights of any kind to which any member of the Contributed Companies is a party or which are binding upon any member of the Contributed Companies. No member of the Contributed Companies is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any of the Contributed Interests.

(c)      Except for the twenty-five percent (25%) membership interest of GDOGP held by a Third Party and the Contributed Interests, the Contributed Companies do not have any other authorized or issued equity securities.

(d)      Except as set forth on Schedule 3.4(d) of the Group LLC Disclosure Schedules, and except to the extent any Encumbrances will be fully released and discharged at the Closing, the Contributed Interests are free and clear of all Encumbrances, other than restrictions on transfer under applicable securities Laws.

(e)      None of the Contributed Companies has violated in any material respect any applicable securities Laws or any preemptive or similar rights created by statute, Organizational Documents or agreement in connection with the offer, sale, issuance or allotment of any of the Contributed Interests.

(f)       The Contributed Companies do not have any liability for, or obligation with respect to, the payment of dividends, distributions or similar participation interests, whether or not declared or accumulated, and there are not contractual restrictions of any kind which prevent the payment of the foregoing by the Contributed Companies.

(g)      The Contributed Companies have good, valid, and marketable title to all material tangible personal property and other material assets reflected in the Financial Statements. Group LLC has good, valid, and marketable title to the Contributed Assets that it purports to own, free and clear of all Encumbrances other than Encumbrances for or in respect of Taxes or governmental levies not yet due and payable. Each of the Contributed Assets is suitable for the purpose for which it is intended to be used, and has been maintained in good operating condition, ordinary wear and tear excepted (as applicable). Assuming the consummation of the Contribution, GREC LLC will have all of the assets necessary for the Contributed Companies to conduct the Business in substantially the same manner as such Business is being conducted and such services are being provided as of the date hereof.

Section 3.5.      Financial Statements; Absence of Changes or Events.

(a)      Schedule 3.5(a) of the Group LLC Disclosure Schedules contains the unaudited balance sheet of the Contributed Companies as of December 31, 2021 (the “Financial Statements”). Except as set forth therein or in Schedule 3.5(a) of the Group LLC Disclosure Schedules, the Financial Statements have been prepared, in all material respects, in accordance with GAAP, applied on a basis consistent with the Contributed Companies’ prior practice, are consistent with the Contributed Companies’ books and records, and present accurately and fairly in all material respects the financial position of the Contributed Companies’ and their subsidiaries as of their respective dates and for the respective periods covered thereby in accordance with GAAP.

(b)      Except as set forth in Schedule 3.5(b) of the Group LLC Disclosure Schedules, to Group LLC’s Knowledge, since the Effective Time (i) there has not been any event, circumstance, change, or effect that has had or reasonably would be expected to have a Material Adverse Effect on the business, assets, condition (financial or otherwise), or results of operations of the Business; and (ii) the business of each of the Contributed Companies, has been conducted in the ordinary course and consistent with past practice.

(c)      Except as set forth in Schedule 3.5(c) of the Group LLC Disclosure Schedules, since the Effective Time there has been no Leakage.

(d)      The Financial Statements accurately reflect the accounts receivable of the Contributed Companies as of December 31, 2021 in accordance with GAAP and none for the accounts receivable are subject to any set offs, counterclaims, credits or other offsets, and are current and collectible and will be collected in accordance with their terms and their recorded amounts.

(e)      The Financial Statements accurately reflect the accounts payable of the Contributed Companies as of December 31, 2021 in accordance with GAAP.

Section 3.6.      Absence of Undisclosed Liabilities. Except as set forth in Schedule 3.6 of the Group LLC Disclosure Schedules, none of the Contributed Companies has any material Liability of the type required to be disclosed or provided for in the Financial Statements or any notes thereto in accordance with GAAP, other than Liabilities (a) as disclosed, reflected or reserved for in the Financial Statements, including any notes thereto, (b) incurred in the ordinary course of business and consistent with past practice of the Contributed Companies after December 31, 2021 (none of which is a material Liability resulting from breach of Contract or violation of Law) and in an aggregate amount less than $1,000,000, (c) incurred in connection with this Agreement or the transactions contemplated by this Agreement, or (d) that are disclosed on any of the Schedules of Group LLC Disclosure Schedules.

Section 3.7.      Compliance with Applicable Laws.

(a)      As of the date hereof, the Contributed Companies are in compliance in all material respects with all applicable Laws and all Orders of any Governmental Entity applicable to the Contributed Companies or their respective properties or assets. As of the date hereof, all Permits required for the Contributed Companies to conduct their respective business have been obtained by them and are valid and in full force and effect, except where the failure to obtain such Permits would not have a Material Adverse Effect. To Group LLC’s Knowledge, none of the Contributed Companies during the last five (5) years has been, charged or threatened with a charge of material violation, or under investigation with respect to, a possible material violation, of any Law.

(b)      Except as set forth on Schedule 3.7(b) of the Group LLC Disclosure Schedules, no member of the senior management team of the Contributed Companies, including each employee with a title of Vice President (or equivalent) or higher, has during their term of employment with the Contributed Companies in the past five (5) years, been the subject of any allegations or claims of workplace sexual misconduct, abuse or harassment with a nexus or connection to the Contributed Companies, and to Group LLC’s Knowledge, no other such allegations or claims have been made against any other current employee of the Contributed Companies in the past five (5) years.

Section 3.8.      Legal Proceedings. Except as set forth in Schedule 3.8 of the Group LLC Disclosure Schedules, (a) there are no Actions pending, or to Group LLC’s Knowledge threatened, against Group LLC or the Contributed Companies, the Contributed Assets, or any material property or asset of the Contributed Companies relating in any way to the Business, by or before any arbitrator or Governmental Entity, nor is there any material investigation relating to the Contributed Companies, any property or asset of the Contributed Companies, or the Contributed Assets pending, or to Group LLC’s Knowledge threatened, by or before any arbitrator or Governmental Entity with respect to the Business; (b) there are no Orders of any Governmental Entity or arbitrator outstanding against the Contributed Companies or affecting any property or asset of the Contributed Companies or the Contributed Assets relating in any way to the Business; and (c) there are no Actions pending, or to Group LLC’s Knowledge threatened, against the Contributed Companies with respect to the Business or the Contributed Assets.

Section 3.9.      Real Property.

(a)      None of the Contributed Companies owns beneficially (directly or indirectly) or of record any real property. Schedule 3.9(a) of the Group LLC Disclosure Schedules contains a true, correct, and complete list of each parcel of real property leased, licensed, subleased, used or occupied to or by Group LLC or any Contributed Company (the “Leased Real Property”) and includes the parties to each such lease, license, sublease, or other occupancy agreement and any amendments, modifications, renewals, or supplements thereto (collectively, the “Leases,” and each a “Lease”), and the expiration date of such Lease.

(b)      Group LLC and each Contributed Company has valid leasehold interests in all of its Leased Real Property. Group LLC and each Contributed Company is in possession of each parcel of its Leased Real Property, and such leasehold interest is free and clear of all Encumbrances.

(c)      Each Lease is in full force and effect, and is a legal, valid, and binding agreement, enforceable in accordance with its terms as written. There is no, and none of Group LLC or, to Group LLC’s Knowledge the Contributed Companies, has received written notice of any, material default (or any condition or event that, after written notice or lapse of time or both, would constitute a material default) thereunder. None of Group LLC or the Contributed Companies owes any brokerage commissions or other similar fees with respect to any such leased space (including any contingent obligation in respect of future Lease extensions), nor is any payment or repayment due to the landlord or any Third Party in respect of any Leased Real Property, and to Group LLC’s Knowledge, no proposed amendments or modifications of any Lease which would result in an increase in rent or a fee payable in respect of any Leased Real Property is currently proposed by the landlord of any Leased Real Property.

(d)      Except as set forth on Schedule 3.9(d) of the Group LLC Disclosure Schedules with respect to all Leased Real Property there are no outstanding lease concessions (including, without limitation, any rent abatement, rent free periods or similar) or unpaid or unfulfilled tenant improvement obligations of Group LLC, any Contributed Company, or any other Person, including any Affiliate. Group LLC has delivered to GREC LLC prior to the execution of this Agreement true and complete copies of all subleases, licenses, or other occupancy agreements (including any annexes, appendices or any other documents referred to therein) made by any Contributed Company of the Leased Real Property to any other Person, including any Affiliate and any amendments, modifications or supplements thereto.

Section 3.10.    Books and Records. Group LLC has made available to GREC LLC prior to the execution of this Agreement, all minute books, written consents, and other similar records of the Contributed Companies in its possession.

Section 3.11.    Tax Matters. Except as set forth on Schedule 3.11 of the Group LLC Disclosure Schedules:

(a)      each of the Contributed Companies has timely and properly filed all Tax Returns required to be filed by it (after giving effect to any filing extension properly granted by a Taxing Authority having authority to do so) and each such Tax Return is true, correct and complete in all material respects;

(b)      each of the Contributed Companies has paid all Taxes required to be paid by it, other than any such Taxes that are being contested in good faith;

(c)      no deficiencies for any Taxes have been proposed, asserted, assessed or, to Group LLC’s Knowledge, threatened against the Contributed Companies, and no requests for waivers of the time to assess any such Taxes are pending;

(d)      there are no Encumbrances for Taxes (other than Taxes not yet due and payable or which are being contested in good faith) upon any of the Contributed Interests or Contributed Assets, and no action, proceeding or investigation has been instituted against Group LLC or the Contributed Companies that would give rise to any such Encumbrance;

(e)      each of Group LLC and the Contributed Companies, has withheld and paid all Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, member or other Third Party, and all Forms W-2 and 1099 required with respect thereto have been properly completed and timely filed;

(f)       there are no pending or, to Group LLC’s Knowledge, threatened audits, assessments or other actions for or relating to any liability in respect of income or material non-income Taxes of the Contributed Companies, there are no matters under discussion with any Tax authority with respect to income or material non-income Taxes that are likely to result in an additional liability for Taxes with respect to the Contributed Companies and none of the Contributed Companies is, or has ever been, a party to or bound by any Tax indemnity agreement, Tax sharing agreement, tax allocation agreement or similar contract;

(g)      GREC LLC shall not become (as a result of the contribution of the Contributed Assets to GREC LLC), and none of the Contributed Companies are liable for, the Taxes of another person as a transferee or successor, by operation of law, by contract, or otherwise;

(h)      since its formation, for U.S. federal income Tax purposes, each of Group LLC and the Contributed Companies has been treated either as a partnership or a disregarded entity and not as a corporation or an association taxable as a corporation and will continue to be so treated immediately after the Closing;

(i)       no Contributed Company has engaged in any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2);

(j)       no Contributed Company will be required to include any material amount in taxable income or exclude any material item of deduction or loss from taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of (i) any change in method of accounting for a Pre-Closing Tax Period made prior to the Closing, (ii) any use of an improper method of accounting for a Pre-Closing Tax Period utilized prior to the Closing, (iii) any “closing agreement” as described in section 7121 of the Code (or any corresponding or similar provision of U.S. state, or local or foreign non-U.S. income Law with respect to Taxes) executed on or prior to the Closing, (iv) any installment sale or open transaction disposition made prior to the Closing, or (v) any prepaid amount or deferred revenue received on or prior to the Closing;

(k)      Group LLC has obtained from its own tax advisors advice regarding the tax consequences of (i) the transfer of the Contributed Interests and Contributed Assets to GREC LLC and the receipt of GREC LLC Common Shares and Earnout Shares as the consideration therefor, (ii) its admission as a member of GREC LLC, (iii) any other transaction contemplated by this Agreement, and (iv) ownership of GREC LLC Common Shares and Earnout Shares, including the effect of Section 704(c) of the Code; and

(l)       GREC LLC has not made any representation to Group LLC regarding the tax treatment of the transactions contemplated by this Agreement, Group LLC further represents and warrants that it has not relied on GREC LLC Representatives or counsel for any tax advice.

Section 3.12.    Material Contracts.

(a)      Except as set forth on Schedule 3.12(a) of the Group LLC Disclosure Schedules and as provided by Group LLC to GREC LLC in a true and correct copy prior to the date hereof (including all amendments or modifications thereto), as of the Closing Date, there is no contract to which any of the Contributed Companies or any subsidiary of the Contributed Companies is a party and which (i) is necessary for the continued operation of the Business in the ordinary course of business, consistent with past practices immediately prior to the Closing, (ii) is with a Governmental Entity (including any settlement, conciliation or similar agreement), (iii) grants any Person a material Encumbrance on all or any part of the Contributed Companies, (iv) contains a power of attorney, (v) contains a change of control, sale or retention bonus or similar payment, commitment, obligation arrangement or that results in the payment of money as a result of the transaction contemplated by this Agreement, (vi) contains any material indemnification obligation of any Contributed Company, (vii) is with any Affiliate (other than another Contributed Company), director, manager, partner, officer, or employee of Group LLC, (viii) contains an “earn-out” provision or other contingent or future payment obligation that has not been satisfied in full, or (ix) is a contract for the employment or engagement of any director, officer, employee or independent contractor providing for annualized compensation at or above $250,000 (collectively, the “Material Contracts”).

(b)      There are no change orders, modifications, or amendments to any of the Material Contracts which have been agreed to which have not been reduced to writing and provided to GREC LLC as of the date hereof.

(c)      With respect to each Material Contract, except as disclosed on Schedule 3.12(c) of the Group LLC Disclosure Schedules, (i) the agreement is legal, valid, binding, and in force and effect in accordance with its terms; (ii) the Contributed Companies are not, and to Group LLC’s Knowledge, no other Person who or which is a party to a Material Contract is in breach or default, and no event has occurred (or is reasonably likely to occur) which with notice or lapse of time (or both) would constitute a breach or default, or permit termination, modification, or acceleration under, such Material Contract; and (iii) GREC LLC’s acquisition of the Contributed Interests and Contributed Assets at the Closing will not give rise to a material breach, default, or violation by Group LLC, or the Contributed Companies of any Material Contract and will not require the consent or approval of any Third Party except as otherwise set forth on Schedule 3.12(c) of the Group LLC Disclosure Schedules.

Section 3.13.    Employment Matters.

(a)      Group LLC has provided to GREC LLC a complete and correct list of each employee of, or leased employee providing services to, the Contributed Companies (each such employee or leased employee, a “Business Employee”) as of the date of this Agreement, including each such employee’s name, job title, FLSA Status, annualized salary or hourly wage, work location, leave status, and visa status. With the exception of the Management Employees, each other Business Employee is employed by Administration LLC. No Business Employee is represented by a labor union, works council, or other labor organization and Group LLC is not party to or bound by any collective bargaining agreement with any labor union, works council, or other labor organization. There have been no pending or, to Group LLC’s Knowledge, threatened strikes, work stoppages, walkouts, lockouts, or other material labor disruptions with respect to any Business Employees. To Group LLC’s Knowledge, there have been no union organizing activities among any Business Employees.

(b)      Schedule 3.13(b) of the Group LLC Disclosure Schedules sets forth a list of each material Group LLC Benefit Plan and each material PEO Plan. Each Group LLC Benefit Plan and PEO Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS, or with respect to a volume submitter or prototype plan, can rely on an opinion or advisory letter from the IRS to the volume submitter or prototype plan sponsor, and nothing has occurred that could reasonably be expected to adversely affect the qualification of such Group LLC Benefit Plan or PEO Plan. Other than as required under Section 4980B of the Code, Sections 601 to 608 of ERISA or other applicable Law, in each case, for which the covered Person pays the full premium cost of coverage, no Group LLC Benefit Plan or PEO Plan provides post-employment, post-ownership or retiree welfare benefits or coverage to any Person.

(c)      No Group LLC Benefit Plan or, to Group LLC’s Knowledge, PEO Plan is subject to, and neither Group LLC not the Contributed Companies have any, or are reasonably expected to have any, current or contingent material Liability or obligation with respect to, including on account of an ERISA Affiliate, Title IV of ERISA. Neither Group LLC nor the Contributed Companies are participating or contributing employers in, or otherwise have or are reasonably expected to have any current or contingent Liability or obligation with respect to, including on account of an ERISA Affiliate, any “multiemployer plan” (as defined in Section 3(37) of ERISA) with respect to employees of such Group LLC or Contributed Company.

(d)      Each Group LLC Benefit Plan and, to Group LLC’s Knowledge, PEO Plan has been established, administered, funded and maintained, in form and operation, and all contributions, premiums, reimbursements, and payments have been made, in all material respects in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code). Nothing has occurred and no condition exists with respect to any Group LLC Benefit Plan and, to Group LLC’s Knowledge, any PEO Plan that could reasonably be expected to result in a Tax, penalty or other Liability of Group LLC or the Contributed Companies.

(e)      No Liability, claim, action, audit, investigation, or litigation is pending or threatened with respect to any Group LLC Benefit Plan and, to Group LLC’s Knowledge, with respect to a Contributed Company’s participation in any PEO Plan (other than routine claims for benefits payable in the ordinary course and appeals of denied such claims). There has been no “prohibited transaction” within the meaning of Section 4975 of the Code or Section 406 of ERISA and no breach of fiduciary duty (as determined under ERISA) has occurred with respect to any Group LLC Benefit Plan or, to Group LLC’s Knowledge, PEO Plan.

(f)       Except as set forth on Schedule 3.13 of the Group LLC Disclosure Schedules, the consummation of the transactions contemplated by this Agreement will not (either alone or in combination with any other event, including termination of employment) (i) entitle any Business Employee to severance pay; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation due to any such Business Employee; or (iii) increase the benefits or amount payable under any Group LLC Benefit Plan.

(g)      To Group LLC’s Knowledge, each Group LLC Benefit Plan that constitutes in any part a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered in all material respects in operational compliance with, and is in all respects in documentary compliance with, Section 409A of the Code and all IRS guidance promulgated thereunder, and no amount under any such plan, agreement or arrangement is, has been or is expected to be subject to any additional Tax, interest or penalties under Section 409A of the Code.

(h)      No payment or benefit which could be made with respect to any current or former employee, officer, stockholder, director or service provider of any Contributed Company who is a “disqualified individual” (as defined in Section 280G of the Code and the regulations thereunder) could (individually or together with any other payment or benefit) be nondeductible pursuant to Section 280G of the Code or subject to an excise Tax under Section 4999 of the Code. There is no contract, agreement, plan or arrangement to which any Contributed Company is bound to provide a gross-up or otherwise reimburse any current or former employee, director, service provider or other person for excise taxes paid pursuant to Sections 409A or 4999 of the Code.

Section 3.14.    Insurance. The insurance policies maintained by the Contributed Companies as of the date of this Agreement are set forth on Schedule 3.14 of the Group LLC Disclosure Schedules. Such insurance policies are in full force and effect and are sufficient for material compliance by each Contributed Company with all material requirements of Law and all agreements to which such Contributed Company is a party. All premiums due on such insurance policies have been paid through the date of this Agreement and will be paid through the Closing. None of the Contributed Companies is in material breach of its obligations under any of such insurance policies. There are no pending claims under any of the insurance policies, including any claim for loss or damage to the properties, assets or business of any Contributed Company. In the last two (2) years, (i) no insurance carrier has denied coverage for any claim asserted by any Contributed Company, (ii) no insurance carrier has declined to renew any insurance policy with any Contributed Company, and (iii) none of the Contributed Companies nor Group LLC has received any notification of cancellation of any such insurance policies (or similar insurance policies held by any Contributed Company then in effect).

Section 3.15.    Intellectual Property.

(a)      Schedule 3.15(a) of the Group LLC Disclosure Schedules sets forth a true, complete, and accurate list of (i) all Intellectual Property owned by the Contributed Companies (“Owned IP”), (ii) all material licenses of Intellectual Property to which the Contributed Companies are a party that are used or held for use in the Business (other than licenses for off-the-shelf computer software that is generally available to the public on commercially reasonable terms), and (iii) all other material Business IP.

(b)      Except as set forth in Schedule 3.15(b) of the Group LLC Disclosure Schedules, (i) the Contributed Companies exclusively own and possess or will exclusively own and possess at Closing, all right, title, and interest in and to the Owned IP free and clear of all Encumbrances, (ii) the Contributed Companies have not received any notice or claim challenging the Contributed Companies’ exclusive ownership of any of the Owned IP or claiming that any Person has any claim of legal or equitable ownership with respect thereto, and the Contributed Companies are not aware of any reasonable basis for any such claims, (iii) the Contributed Companies have the exclusive and unrestricted right to collect royalties and proceeds in connection with the Owned IP, as well as to sue and bring claims for, and to recover and retain damages, costs, attorneys’ fees and other remedies for, all past, present, and future infringement, misappropriation, or conflict with, any of the Owned IP, and (iv) none of the Owned IP or, to Group LLC’s Knowledge, Intellectual Property exclusively licensed to the Contributed Companies, is subject to any outstanding injunction, judgment, order, decree, ruling, or charge restricting or denying the Contributed Companies’ ownership of, or ability to access, use, disclose, register, renew, enforce, transfer, license, distribute, or dispose of any such Owned IP.

(c)      Group LLC has delivered to GREC LLC a correct and complete copy of each material IP Contract (as amended to date) set forth or required to be set forth on the Group LLC Disclosure Schedules hereto; all such IP Contracts are legal, valid, binding, enforceable, and in full force and effect in all material respects; no party to such IP Contracts is, to Group LLC’s Knowledge in material breach or default or has repudiated any material provision thereof, and to Group LLC’s Knowledge no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration thereunder. Except as set forth in Schedule 3.15(c) of the Group LLC Disclosure Schedules, none of the IP Contracts confers upon any Person, other than the Contributed Companies, any ownership interest or exclusive license with respect to any Owned IP or any Intellectual Property developed in connection with such agreement or license, or restricts the Contributed Companies’ ability to access, use or disclose any Owned IP or such developed Intellectual Property.

(d)      The Contributed Companies own and possess or will own and possess at Closing, or have the right pursuant to a valid and enforceable written IP Contract set forth in Schedule 3.15(a)of the Group LLC Disclosure Schedules (other than licenses for off-the-shelf computer software that is generally available to the public on commercially reasonable terms that are not required to be listed in Schedule 3.15(a)of the Group LLC Disclosure Schedules), to use, with no further consents, payment of royalties, or other costs required, all Business IP necessary for the conduct of the Business, including to access, use, disclose, register, renew, enforce, transfer, license, distribute, and dispose of all Business IP in substantially the same manner as it is accessed, used, disclosed, registered, renewed, enforced, transferred, licensed, distributed, and disposed of by or for the Contributed Companies.

(e)      To Group LLC’s Knowledge, (i) neither the Contributed Companies nor the conduct of the Business has infringed, misappropriated or otherwise conflicted with, any Intellectual Property of any Third Party, and (ii) there are no facts indicating a likelihood of the foregoing. The Contributed Companies have not in the last three (3) years received any written charge, complaint, claim, demand, or notice alleging any such infringement, misappropriation, or other conflict (including any demands to refrain from accessing or using, or unsolicited offers to license, any Intellectual Property of any Third Party, or any request for indemnification from a Third Party).

(f)       To Group LLC’s Knowledge, (i) no Third Party has infringed, misappropriated, or otherwise conflicted with, any of the Owned IP or any of the Intellectual Property exclusively licensed to the Contributed Companies, and, (ii) there are no facts that indicate a likelihood of any of the foregoing. Without limiting the generality of any representation or warranty herein, the Contributed Companies have not with respect to any Owned IP, (i) notified a Third Party of actual or potential infringement, (ii) initiated any enforcement or declaratory judgment action, or (iii) invited any Third Party to enter into a license, covenant not to sue, coexistence agreement, or consent agreement.

(g)      None of the Owned IP and, to Group LLC’s Knowledge, none of the Intellectual Property exclusively licensed to the Contributed Companies, has been adjudged invalid or unenforceable in whole or in part by a court or administrative agency with competent jurisdiction. Each item of the Owned IP and, to Group LLC’s Knowledge, each item of the Intellectual Property exclusively licensed to the Contributed Companies, is subsisting, unexpired, in full force and effect, has not been abandoned, cancelled, or misused and is to Group LLC’s Knowledge valid and enforceable. No dispute, action, suit, judgment, order, decree, proceeding, hearing, investigation, inquiry, charge, or written complaint, claim, or demand seeking to cancel or contesting the patentability, registrability, validity, or enforceability of any of the Owned IP or, to Group LLC’s Knowledge, any of the Intellectual Property exclusively licensed to the Contributed Companies has occurred, is in progress, or pending, and the Contributed Companies have not received any written notice of any of the foregoing and, to Group LLC’s Knowledge, there is no reasonable basis for any of the foregoing. The Contributed Companies have taken commercially reasonable actions to maintain, protect, and permit future enforcement of all of the Business IP (including by protecting the secrecy, confidentiality, and value of all confidential Business information through reasonable use of written confidentiality agreements governing any disclosure of confidential Business information to, or use of confidential Business information by, any Third Party, employee, director, officer, founder, independent contractor or consultant).

(h)      Each current employee, officer, director, founder, independent contractor, and consultant of each Contributed Company has either executed an agreement to protect confidential Business information or has a fiduciary duty to do so.

(i)       The Contributed Companies and the conduct of the Business are in compliance with, and have been in compliance with, all Data Security Requirements; no written notices have been received by, and no written claims, charges or complaints have been made against, the Contributed Companies by any Governmental Entity or other Person alleging a violation of any Data Security Requirements; and there have not been to Group LLC’s Knowledge any actual or alleged incidents of data security breaches, unauthorized access or use of any of the Business Systems, or unauthorized acquisition, destruction, damage, disclosure, loss, corruption, alteration, or use of any Business Data.

(j)       Without limiting the generality of any representation or warranty herein, the Contributed Companies, and to Group LLC’s Knowledge their service providers, have implemented, and are in material compliance with, all reasonable physical, technical, and other measures to assure the integrity and security of, and to prevent the unauthorized access to or use of, any of the Business Systems, transactions executed thereby, and of all Business Data. The Contributed Companies have implemented procedures that are reasonably likely to detect data security breaches, unauthorized access, or unauthorized use of the Business Systems or Business Data, and none of the foregoing have been detected. Except as set forth in Schedule 3.15(i) of the Group LLC Disclosure Schedules, (i) the Contributed Companies have not been the subject of any suit, proceeding, adverse inspection, finding, investigation, hearing, penalty assessment, audit, or other compliance or enforcement action relating to data processing to which they have been given written notice, (ii) there is no basis for any of the foregoing to Group LLC’s Knowledge, and (iii) to Group LLC’s Knowledge there have been no facts or circumstances that would require the Contributed Companies to give notice pursuant to any Data Security Requirement to any customers, vendors, consumers, or other similarly situated Persons of any actual data security breach.

(k)      Without limiting the generality of any representation or warranty herein, (i) the Business Systems are sufficient for the needs of the Business, including as to capacity, scalability, and ability to process current volumes in a timely manner, and the Contributed Companies have purchased a sufficient number of licenses for all third-party software used in the Business, (ii) the Business Systems are in sufficiently good working condition to effectively perform all information technology operations necessary for the conduct of the Business and no Third Party providing services to the Contributed Companies has failed to meet any material service obligations, (iii) in the last eighteen (18) months, there have been no failures, breakdowns, outages, bugs, continued substandard performance, or other adverse events affecting any of the Business Systems (as a whole or with respect to any portion thereof) that have caused or could reasonably be expected to have resulted in the substantial disruption or interruption in or to the use of such Business Systems or the conduct of the Business, (iv) the Contributed Companies have implemented or are in the process of implementing in a timely manner any and all material security patches or security upgrades that are generally available for the Business Systems, (v) to Group LLC’s Knowledge, all of the Business Systems are free from any malicious or disabling code or instructions, timer, copy protection device, clock, counter, or other limiting design or routing or any “back-door,” “time bomb,” “Trojan horse,” “ worm,” “drop dead device,” “virus,” “bug,” documentation error or corruptant, malware, “spyware,” or other similar programs, software routines or hardware components that would permit unauthorized access or the unauthorized disablement or erasure of any of the Business Systems, any Business Data, or any software of any Third Party, or otherwise render the Business Systems incapable of being used in the full manner for which they were designed, (vi) the Contributed Companies have used commercially reasonable efforts to protect the Business Systems and Business Data and to provide for the continuity, integrity, and security thereof, as well as the back-up and recovery of Business Data, including by appropriate use of commercially-available anti-virus software recognized and accepted in the industry in which the Contributed Companies operate, and (vii) the Contributed Companies maintain disaster recovery and business continuity plans, procedures and facilities, acts in compliance therewith and has tested such plans and procedures on a periodic basis, and such plans and procedures have been proven effective upon such testing in all material respects.

Section 3.16.   Brokers, Finders, and Advisors. Except for the Houlihan Lokey Engagement Letter, Group LLC has not entered into any agreement resulting in, or which will result in, Group LLC or the Contributed Companies having any obligation or liability as a result of the execution and delivery of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby, for any brokerage, finder, or advisory fees or charges of any kind whatsoever.

Section 3.17.    Securities Law Matters.

(a)      Group LLC acknowledges that GREC LLC intends the offer and issuance of the GREC LLC Common Shares and Earnout Shares to be exempt from registration under the Securities Act and applicable state securities Laws by virtue of (i) the status of Group LLC as an “accredited investor” within the meaning of the federal securities Laws, and (ii) Regulation D promulgated under Section 4(a)(2) of the Securities Act (“Regulation D”), and that GREC LLC will rely in part upon the representations and warranties made by Group LLC in this Agreement in making the determination that the offer and issuance of the GREC LLC Common Shares and Earnout Shares qualify for exemption under Rule 506 of Regulation D as an offer and sale only to “accredited investors.”

(b)      Group LLC is an “accredited investor” within the meaning of the federal securities Laws and Regulation D.

(c)      Group LLC is not acquiring the GREC LLC Common Shares or Earnout Shares with a view to realizing any benefits under U.S. federal income tax laws, and no representations have been made to Group LLC by GREC LLC or any of its Affiliates that any such benefits will be available as a result of Group LLC’s acquisition, ownership or disposition of GREC LLC Common Shares.

(d)      Group LLC acknowledges that the GREC LLC Common Shares and Earnout Shares are not offered to it by means of any general solicitation or general advertising by GREC LLC or any person acting on its behalf, including without limitation (i) any advertisement, article, notice, or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio, or (ii) any seminar or meeting to which Group LLC was invited by any general solicitation or general advertising.

(e)      Group LLC (either alone or together with any advisers retained by it in connection with evaluating the merits and risks of acquiring the GREC LLC Common Shares and Earnout Shares) has sufficient knowledge and experience in financial, Tax, and business matters to enable it to evaluate the merits and risks of investment in the GREC LLC Common Shares and Earnout Shares. Group LLC has the ability to bear the economic risk associated with acquiring the GREC LLC Common Shares and Earnout Shares, including a complete loss of such investment. Group LLC has no need for liquidity of its investment in GREC LLC, and has no reason to anticipate any change in financial condition or circumstances that may cause or require the sale or distribution of the GREC LLC Common Shares and Earnout Shares.

(f)       Group LLC has been supplied with, or had access to, information to which a reasonable investor would attach significance in making an investment decision to acquire the GREC LLC Common Shares and Earnout Shares and any other information Group LLC has requested. Group LLC has had an opportunity to ask questions of, and receive information and answers from, GREC LLC concerning GREC LLC, the GREC LLC Common Shares and Earnout Shares, the contribution of the Contributed Interests and Contributed Assets, and to assess and evaluate any information supplied to Group LLC by GREC LLC.

(g)      Group LLC understands that no Governmental Entity (including the United States Securities and Exchange Commission) has made, or will make, any finding or determination as to the fairness of an investment in the GREC LLC Common Shares and Earnout Shares.

(h)      Group LLC understands that there is no established public, private, or other market for the GREC LLC Common Shares and Earnout Shares to be issued to Group LLC hereunder, and it is not anticipated that there will be any public, private, or other market for such GREC LLC Common Shares and Earnout Shares in the foreseeable future.

(i)       Group LLC understands that the issuance of GREC LLC Common Shares and Earnout Shares is intended to be exempt from registration under the Securities Act and from registration and/or qualification under applicable state securities laws, and that the offering of GREC LLC Common Shares and Earnout Shares has not been approved, disapproved or passed on by the Securities and Exchange Commission or any state or other Governmental Entity. Group LLC also understands that GREC LLC is not currently, and does not propose in the future to be, registered as an “investment company” under the Investment Company Act of 1940, as amended.

Section 3.18.    No Other Representations or Warranties. Except to the extent of the representations and warranties expressly made by the other Parties and contained in this Agreement, any certificate delivered in connection herewith or any Transaction Document other than this Agreement, Group LLC acknowledges and agrees that (i) neither GREC LLC or any other Person makes any express or implied representation or warranty with respect to the GREC LLC Common Shares and Earnout Shares or otherwise, and (ii) Group LLC has not executed or authorized the execution of this Agreement or the consummation of the transactions contemplated by this Agreement and the Transaction Documents in reliance upon any promise, representation or warranty not expressly set forth in this Agreement.

Article IV

REPRESENTATIONS AND WARRANTIES OF GREC LLC

Except as set forth in, or qualified by any matter set forth in, the GREC LLC Disclosure Schedules (it being agreed that the disclosure of any matter in any section in the GREC LLC Disclosure Schedules shall be deemed to have been disclosed in any other section in the GREC LLC Disclosure Schedules to which the applicability of such disclosure is reasonably apparent on its face), GREC LLC, represent and warrant to Group LLC as of the date of this Agreement, as follows:

Section 4.1.     Organization and Good Standing. GREC LLC is a limited liability company duly organized, validly existing, and in good standing under the Laws of the State of Delaware. GREC LLC is duly authorized to conduct its business and is in good standing under the applicable Law of its jurisdiction where such qualification is required, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect. GREC LLC is in material compliance with its Organizational Documents. GREC LLC has all necessary limited liability company power and authority to carry on its business as presently conducted.

Section 4.2.      Power and Authority; Due Authorization; Enforceability. GREC LLC has all requisite limited liability company power and authority to enter into each of the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby or thereby. The execution and delivery of each of the Transaction Documents by GREC LLC and the consummation by GREC LLC of the transactions contemplated hereby or thereby have been duly authorized by all necessary limited liability company action on the part of GREC LLC. Each of the Transaction Documents has been, or upon execution and delivery will be, duly executed and delivered by GREC LLC, and constitute, or upon execution and delivery will constitute, the valid and binding obligations of GREC LLC, enforceable against GREC LLC in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

Section 4.3.      No Conflicts; Required Consents. Except as provided in Schedule 4.3 of the GREC LLC Disclosure Schedules, the execution and delivery of the Transaction Documents by GREC LLC do not, and the performance by GREC LLC of the transactions contemplated hereby or thereby will not, (a) violate, conflict with, or result in any breach of any provision of GREC LLC’s Organizational Documents, (b) violate, conflict with, or result in a violation or breach of, or constitute a default (with or without due notice or lapse of time or both) under, or permit the termination, or result in the acceleration, of, or entitle any party to accelerate, any obligation of GREC LLC, or result in the loss of any benefit, or give rise to the creation of any Encumbrance on any property or asset of GREC LLC under any of the terms, conditions or provisions of any material instrument or obligation to which any property or asset of GREC LLC may be bound or subject, or (c) violate any Law applicable to GREC LLC or by or to which any property or asset of GREC LLC is bound or subject.

Section 4.4.     Capitalization; Title. Following the execution, delivery, and performance by the Parties of this Agreement, including the issuance of the GREC LLC Common Shares and Earnout Shares, the equity capitalization of GREC LLC will be as set forth on Schedule 4.4 of the GREC LLC Disclosure Schedules; provided that the number of outstanding shares are as of May 12, 2022. There are no outstanding preemptive rights or rights of any kind to acquire from GREC LLC any equity interest in the GREC LLC Common Shares and Earnout Shares, and securities convertible into or exchangeable for, or which otherwise confer on the holder thereof any right to acquire from GREC LLC any such equity interest, nor is GREC LLC committed to issue any such right or security. The GREC LLC Common Shares and Earnout Shares, when issued in accordance with the terms of this Agreement, will be validly issued, fully paid, and nonassessable, free of restriction free and clear of all Encumbrances, other than restrictions on transfer under applicable securities Laws, pursuant to the Amended GREC LLCA, the Certificate of Designation, or the terms of any agreement entered into between the Parties.

Section 4.5.     Valid Issuance of GREC LLC Common Shares. The GREC LLC Common Shares and Earnout Shares, when issued and delivered in compliance with the provisions of this Agreement, will be duly authorized, validly issued, fully paid, and, except as provided in the Amended GREC LLCA and the Certificate of Designation and except as affected by Section 18-607 of the Delaware Limited Liability Company Act, non-assessable. The GREC LLC Common Shares and Earnout Shares will be, at the time of issuance, free of any Encumbrances; provided, however, that the GREC LLC Common Shares and Earnout Shares are subject to restrictions on transfer under federal and state securities Laws and as otherwise set forth in the Amended GREC LLCA, the Certificate of Designation, and the Account Transfer (Re-Registration) Form. The GREC LLC Common Shares and Earnout Shares will not be issued in violation of any preemptive rights or rights of first refusal granted by GREC LLC.

Section 4.6.     Brokers, Finders, and Advisors. Except for the Greenhill Engagement Letter, the Kirkland & Ellis Retention Letter, and the Meridian Engagement Letter, GREC LLC has not entered into any agreement resulting in, or which will result in, GREC LLC having any obligation or liability as a result of the execution and delivery of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby, for any brokerage, finder, or advisory fees or charges of any kind whatsoever.

Section 4.7.      No Other Representations or Warranties. Except to the extent of the representations and warranties expressly made by the other Parties and contained in this Agreement, any certificate delivered in connection herewith, or any Transaction Document other than this Agreement, GREC LLC acknowledges and agrees that (i) neither Group LLC or any other Person makes any express or implied representation or warranty with respect to Group LLC, the Contributed Interests, the Contributed Assets, or otherwise and (ii) GREC LLC has not executed or authorized the execution of this Agreement or the consummation of the transactions contemplated by this Agreement and the Transaction Documents in reliance upon any promise, representation or warranty not expressly set forth in this Agreement.

Article V

COVENANTS

Section 5.1.         Confidentiality. From and at all times after the Closing, each of the Parties shall, and shall cause their respective Affiliates to, use its reasonable best efforts to cause its and their respective Representatives to: (i) hold in strict confidence any and all Confidential Information, whether written or oral, concerning the Business or the Internalization Transaction, and (ii) not use Confidential Information for such Person’s own direct or indirect benefit or the benefit of any other Person except to the extent that such Party can show that such information (x) is generally available to and known by the public through no fault of such Party, any of its Affiliates or their respective Representatives; or (y) is lawfully acquired by such Party, Affiliate, or Representative from and after the Closing from sources which are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If a Party, its Affiliates, or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of applicable Law, including any securities Law disclosure requirements, such Party shall promptly notify the other Party in writing and shall cause the applicable party to disclose only that portion of such information which it reasonably determines is necessary to comply with such process or requirements; provided that such Party shall use commercially reasonable efforts to obtain an appropriate protective order, if applicable, or other reasonable assurance that confidential treatment will be accorded such information.

Section 5.2.         Notification of Certain Matters. Following the Closing, except as prohibited by Law, Group LLC shall promptly notify GREC LLC in writing of:

(a)         any notice or other communication from any person alleging that notice to or consent of such person is required in connection with the transactions contemplated by this Agreement;

(b)         any material notice or other material communication from any Governmental Entity in connection with the transactions contemplated by this Agreement;

(c)         any filing or notice made by Group LLC with any Governmental Entity in connection with the transactions contemplated by this Agreement;

(d)         any actions, suits, claims, investigations or proceedings commenced or, to Group LLC’s Knowledge, threatened against, relating to or involving or otherwise affecting Group LLC or the Contributed Companies that relate to the transactions contemplated by this Agreement; and

(e)         the occurrence of any matters or events that individually or in the aggregate would be reasonably likely to result in the failure to complete the transactions contemplated by this Agreement.

Section 5.3.         Tax Matters.

(a)         Tax Returns.

(i)           Group LLC shall prepare and timely file all Tax Returns of the Contributed Companies for any Pre-Closing Tax Periods that are due after the Closing Date, Group LLC shall remit or cause to be remitted any Taxes due in respect of such Pre-Closing Tax Periods (in the case of any taxable period that includes, but does not end on, the Closing Date, to the extent such Taxes are attributable to the portion of such period ending on the Closing Date). To the extent that such returns relate to a Pre-Closing Tax Period, such Tax Returns shall be prepared in a manner consistent with past practice, except as otherwise required by applicable Law. For the avoidance of doubt, GREC LLC will have responsibility for signing any Tax Returns relating to the Contributed Companies that are filed after the Closing Date that are prepared in accordance with this Section 5.3.

(ii)          GREC LLC shall prepare and timely file all Tax Returns of the Contributed Companies for all taxable periods other than the Pre-Closing Tax Periods, and GREC LLC shall remit or cause to be remitted any Taxes due in respect to such taxable periods.

(b)         Except as otherwise provided herein, Group LLC shall be liable for, and shall pay any transfer Taxes or other similar Tax imposed on the Contribution.

(c)         Group LLC and GREC LLC shall cooperate, to the extent reasonably requested by the other Party, in connection with the preparation and filing of Tax Returns and any audit, Action, or other proceeding involving Taxes. Cooperation shall include the retention and, upon the other Party’s request, the provision of records and other information reasonably relevant to the preparation of a Tax Return or the conduct of an audit, litigation, or other proceeding. GREC LLC shall promptly notify Group LLC upon receipt by GREC LLC or its Affiliates of notice of (i) any pending or threatened Tax audits or assessments with respect to the income, properties, or operations of the Contributed Companies or any other Contributed Interests or Contributed Assets, and (ii) any pending or threatened federal, state, local or foreign Tax audits or assessments of GREC LLC or its Affiliates, in each case, which may affect the liabilities for Taxes of Group LLC with respect to any Tax period ending on or before the Closing Date. Group LLC shall promptly notify GREC LLC in writing upon receipt by Group LLC or its Affiliates of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments relating to the income, properties or operations of the Contributed Companies or any other Contributed Interests or Contributed Assets. Each of GREC LLC and Group LLC may participate at its own expense in the prosecution of any claim or audit with respect to Taxes attributable to any taxable period ending on or before the Closing Date; provided that Group LLC shall have the right to control the conduct of any such audit or proceeding or portion thereof relating solely to a taxable period ending on or prior to the Closing Date or for which Group LLC has acknowledged liability (except as a partner of GREC LLC) for the payment of any additional Tax liability, and GREC LLC shall have the right to control any other audits and proceedings. Notwithstanding the foregoing, (x) neither GREC LLC nor Group LLC may settle or otherwise resolve any such claim, suit or proceeding which could have an adverse Tax effect on the other Party or its Affiliates (other than on Group LLC as a member of GREC LLC, provided, that any such adverse Tax effect on Group LLC as a member of GREC LLC is not disproportionate as compared with other members of GREC LLC) without the consent of the other party, such consent not to be unreasonably withheld and (y) the Parties agree that, at GREC LLC’s request, each Contributed Company shall make any available election under Section 6226(a) of the Code, commonly known as the “push out” election (or any similar election under state or local Law, if applicable). Group LLC and GREC LLC shall retain all Tax Returns, schedules and work papers with respect to the Contributed Companies or any other Contributed Interests or Contributed Assets, and all material records and other documents relating thereto, until the expiration of the statute of limitations (and, to the extent notified by any party, any extensions thereof) of the taxable years to which such Tax Returns and other documents relate and until the final determination of any Tax in respect of such years.

(d)          The Parties agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance relating to the Business, the Contributed Interests, or the Contributed Assets (including access to books and records) as is reasonably necessary for the filing of all Tax Returns, the making of any election relating to Taxes, the preparation for any audit by any Governmental Entity, and the prosecution or defense of any claims, suits or proceedings relating to any Tax, without charge or expense to the requesting Party.

(e)          In connection with a Liquidation or Listing (as defined in the GREC LLCA) of GREC LLC or any subsidiary thereof, upon the written request of any current or former member of Group LLC, the board of directors of GREC LLC will consider any reasonable steps proposed by such member that may allow the underlying members of Group LLC to acquire the proceeds of the realization transaction in a tax-efficient manner and that does not disproportionately adversely impact any other member of Group LLC.

Section 5.4.           Employees and Employee Benefits.

(a)          Effective upon the Closing, the employment of each Management Employee employed by Group LLC shall be assigned and transferred to and continued by GREC LLC, and immediately thereafter, in connection with the closing of the Second Contribution, shall be assigned and transferred to and continued by GREC Corp, in each case as part of the contribution of the Contributed Assets. Each of the Parties agrees to execute, and to seek to have the applicable employees execute, such documentation, if any, as may be necessary to reflect such assignments, transfers, and contributions.

(b)          In connection with the Internalization Transaction, GREC LLC agrees to cause GREC Corp to adopt the Greenbacker Renewable Energy Corporation Executive Protection Plan as approved by the Board of Directors of GREC LLC on May 19, 2022 and effective as of the Closing Date (the “Protection Plan”).

(i)           Promptly, and in any event within five (5) Business Days following the Closing, GREC LLC agrees to cause GREC Corp to procure that each of Charles Wheeler and David Sher will (A) agree to the termination of his employment agreement, with all existing rights thereto extinguished, and enter into a written instrument reflecting the foregoing, (B) accept a new employment offer letter from GREC Corp, and (C) have the right to participate in the Protection Plan as in effect on such date.

(ii)          GREC LLC agrees to cause GREC Corp to use its reasonable best efforts to procure that as soon as administratively practicable, and in any event within ninety (90) days following the Closing, each of the remaining Management Employees other than Charles Wheeler and David Sher will (A) agree to the termination of his or her existing employment agreement, with all existing rights thereto extinguished, and enter into written instrument reflecting the foregoing, (B) accept a new employment offer letter from GREC Corp, and (C) have the right to participate in the Protection Plan as in effect on such date.

(iii)         The terms of the Protection Plan shall not be amended for at least three (3) years following the Closing as it applies to Management Employees who agreed to have their employment agreements terminated no later than thirty (30) days following the Closing.

(iv)         GREC LLC agrees to cause GREC Corp to provide six (6) months advance notice to existing participants before amending the terms of the Protection Plan, as it applies to those participants.

(c)          Notwithstanding the above or any other provision of this Agreement, nothing in this Agreement shall create any obligation on the part of any of GREC LLC or any of its Affiliates to (i) continue the employment of any Management Employee or permit the return from a leave of absence for any period following the Closing (except as required by applicable Law) or (ii) change the employment status of any Management Employee from “at will,” to the extent such employee is an “at will” employee under applicable Law.

(d)          The Parties acknowledge and agree that the transactions contemplated hereunder and the assignment, transfer or continuation of the employment of Management Employees as contemplated by this Section 5.4 shall not be deemed a severance of employment of any Management Employee for purposes of this Agreement or any Benefit Plan.

(e)          The Parties acknowledge and agree that neither the consummation of transactions contemplated hereunder nor any other transaction in connection with the aforementioned transactions shall be deemed a “change of control” or term of similar import for purposes of any Benefit Plan or with respect to any Management Employee.

(f)           To the extent applicable, with respect to the portion of the tax year occurring prior to and including the Closing, Group LLC will (i) be responsible for all payroll obligations, tax withholding and reporting obligations and (ii) furnish a Form W-2 or similar earnings statement to all Management Employees for such period. With respect to the remaining portion of such tax year, GREC LLC will (i) be responsible for all payroll obligations, tax withholding, and reporting obligations regarding Management Employees and (ii) furnish a Form W-2 or similar earnings statement to all Management Employees. With respect to each Management Employee, Group LLC and GREC LLC shall, and shall cause their respective Affiliates to (to the extent permitted by applicable Law and practicable) (A) treat GREC LLC (or an applicable subsidiary) as a “successor employer” and Group LLC (or the applicable Group LLC Affiliate) as a “predecessor,” within the meaning of Sections 3121(a)(1) and 3306(b)(1) of the Code, to the extent appropriate, for purposes of taxes imposed under the United States Federal Insurance Contributions Act, as amended (“FICA”), or the United States Federal Unemployment Tax Act, as amended (“FUTA”); (B) cooperate with each other to avoid, to the extent possible, the restart of FICA and FUTA upon or following the Closing with respect to each such Management Employee for the tax year during which the Closing occurs; and (C) file tax returns, exchange wage payment information, and report wage payments made by the respective predecessor and successor employer on separate IRS Forms W-2 or similar earnings statements to each such Management Employee for the tax year in which the Effective Time occurs, in a manner provided in Section 4.02(l) of Revenue Procedure 2004-53.

(g)       Subject to any limitations imposed by applicable Laws, Group LLC and GREC LLC shall provide to each other and their respective agents and vendors all information necessary for the Parties to perform their respective duties under this Agreement. The Parties also hereby agree to enter into any business associate arrangements that may be required for the sharing of any information pursuant to this Agreement to comply with the requirements of HIPAA.

(h)       GREC LLC will continue to apply the appropriate leave of absence policies applicable to inactive Management Employees who are on an approved leave of absence as of the Closing. Leaves of absence taken by Management Employees prior to the Closing shall be deemed to have been taken as employees of GREC LLC.

Section 5.5.       Acceptance of GREC LLC Common Shares and Earnout Shares.

(a)       By executing this Agreement and accepting the issuance of the GREC LLC Common Shares and Earnout Shares, Group LLC hereby agrees to be bound by the terms of the Amended GREC LLCA and the Certificate of Designation and any amendments or supplements thereto or cancellations thereof as if it were originally a party thereto, and authorizes GREC LLC to make all filings of any and all certificates, instruments, agreements, or other documents, whether related to the Amended GREC LLCA, the Certificate of Designation, or otherwise, as may be required or advisable under the laws of the State of Delaware.

(b)       Group LLC agrees promptly to notify GREC LLC if there is any change with respect to any of the representations set forth in Section 3.17 hereto and pertaining to Group LLC, and in any other document delivered by Group LLC to GREC LLC relating to such securities Law matters, and to provide such further information as GREC LLC may reasonably request with respect to the issuance and ownership of the GREC LLC Common Shares and Earnout Shares by Group LLC.

(c)       To the extent not prohibited by law or regulation, Group LLC hereby agrees to provide GREC LLC and its service providers any information that they may reasonably request or require in order to comply with applicable Laws, including Tax Laws, or to reduce any Tax that may otherwise be imposed on GREC LLC or any member of GREC LLC by virtue of its ownership in GREC LLC. Without prejudice to the generality of the foregoing, Group LLC hereby acknowledges and understands that GREC LLC is required to comply with the Foreign Account Tax Compliance Act provisions of the U.S. Hiring Incentives to Restore Employment Act (“FATCA”), and agrees to furnish any information and documents GREC LLC or its service providers may from time to time reasonably request for the purpose of compliance with GREC LLC’s obligations under FATCA, including but not limited to information required under FATCA, and agrees that GREC LLC and its service providers, may share such information with any Third Party as required by Law. Group LLC authorizes GREC LLC and its service providers to disclose required information as defined under FATCA regulations to appropriate authorities in the United States as per the requirements under FATCA. Group LLC also agrees that GREC LLC may in the case of Group LLC failing to provide any requested information and documents, require Group LLC to withdraw all or any part of the GREC LLC Common Shares and Earnout Shares held by it. In the case of any material change to the circumstances affecting Group LLC’s U.S. Person status as per FATCA, Group LLC undertakes to immediately notify GREC LLC in writing any of such change. The Parties agree that this paragraph 5.5(c) shall not be construed to require Group LLC to provide Tax Returns of Group LLC or of its members.

Section 5.6.       Distribution of GREC LLC Common Shares and Earnout Shares Held by Group LLC to its Members. Following the Second Contribution, Group LLC may assign and deliver to its members, in accordance with their respective ownership interests in Group LLC, all of its right, title, and interest in and to the GREC LLC Common Shares and Earnout Shares issued pursuant to this Agreement and held by it, pursuant to that certain Account Transfer (Re-Registration) Form as set forth hereto as Exhibit D; provided that Group LLC will delay any such assignment or delivery to its members of (a) the Consideration Adjustment Holdback Shares until at least the completion of the Positive Consideration Adjustment or Negative Consideration Adjustment pursuant to Section 1.7, and of (b) the Indemnity Holdback Shares until at least the expiration of the Survival Period. Upon (x) the completion of the Positive Consideration Adjustment or Negative Consideration Adjustment pursuant to Section 1.7, Group LLC may assign and deliver to its members, in accordance with their respective ownership interests in Group LLC, all of its right, title, and interest in and to any Consideration Adjustment Holdback Shares (or additional GREC LLC Common Shares issued in the case of a Positive Consideration Adjustment) issued pursuant to this Agreement which remain held by Group LLC and have not otherwise been used to satisfy any Negative Consideration Adjustment, and (y) the expiration of the Survival Period, Group LLC may assign and deliver to its members, in accordance with their respective ownership interests in Group LLC, all of its right, title, and interest in and to any Indemnity Holdback Shares issued pursuant to this Agreement which remain held by Group LLC and have not otherwise been used to satisfy any indemnification obligation of Group LLC in accordance with Article VI, in each case (x) and (y) pursuant to that certain Account Transfer (Re-Registration) Form as set forth hereto as Exhibit D. In connection therewith, Group LLC will procure that its members will complete and execute their respective counterparts to the Account Transfer (Re-Registration) Form as set forth hereto as Exhibit D, and provide any additional instruments, documents, or agreements as Group LLC or GREC LLC may reasonably request in order to consummate such distribution or comply with applicable Law.

Section 5.7.       Commercially Reasonable Efforts. Upon the terms and subject to the conditions set forth in this Agreement, each of the Parties agrees to use their respective commercially reasonable efforts, at their own expense, to take, or cause to be taken, or as appropriate to refrain from taking, all actions, and to do, or cause to be done, or as appropriate to refrain from doing, all things reasonably necessary, proper or advisable to consummate, in the most expeditious manner practicable, the transactions contemplated by the Transaction Documents and the Internalization Transaction, including, but not limited to, defending any Actions challenging this Agreement or otherwise seeking to enjoin or delay the consummation of the transactions contemplated by the Transaction Documents.

Section 5.8.       Cooperation; Further Assurances.

(a)       From time to time after the Closing, without additional consideration, each of the Parties will (or, if appropriate, cause their Affiliates to) execute and deliver such further instruments and take such other action (or procure that such action be taken) as may be necessary to make effective the transactions contemplated by this Agreement and the Transaction Documents. For the avoidance of doubt the foregoing shall include, but not be limited to, facilitating and ensuring that each of the Parties have or will obtain any additional requisite approvals from their respective board of directors in order to consummate the transactions contemplated by this Agreement and the Internalization Transaction, and any subsequent distribution of the GREC LLC Common Shares and Earnout Shares issued to it pursuant to this Agreement to Group LLC’s members in pro rata proportion to their respective interests in Group LLC.

(b)       If any Party to this Agreement shall following the Closing have in its possession any asset or right that under this Agreement should have been delivered to the other, such Party shall promptly deliver such asset or right to the other (or to its requested designee).

(c)       Immediately following the Closing contemplated hereby, GREC LLC and GREC Corp shall execute or cause to be executed the Second Contribution Agreement and consummate the transactions contemplated thereby.

(d)       Upon completion of the Internalization Transaction, the Parties agree that Manager shall no longer be obligated to provide services or be entitled to receive payments under the Amended and Restated Services Agreement, by and among Holdings LLC, Manager, and Group LLC, dated as of January 1, 2020, which agreement shall be terminated effective as of the Closing.

Article VI

INDEMNIFICATION

Section 6.1.       Group LLC Indemnification. From and after the Closing, subject to the other provisions of this Article VI, Group LLC shall indemnify and hold harmless GREC LLC and its Subsidiaries officers, directors, stockholders (other than Group LLC and its successors and assigns), partners, managers, and members and their respective heirs, legatees, devisees, executors, administrators, trustees, personal representatives, successors and assigns (each, a “GREC LLC Indemnified Party”), from and against any and all Losses incurred by any GREC LLC Indemnified Party directly arising from, as a result of, in connection with, or relating to: (a) any inaccuracy or breach of any representation or warranty made by Group LLC in Article III; and (b) the breach or failure to perform any covenant or agreement made or undertaken by Group LLC in this Agreement.

Section 6.2.       GREC LLC Indemnification. From and after the Closing, subject to the other provisions of this Article VI, GREC LLC shall indemnify and hold harmless Group LLC and its respective officers, directors, stockholders, partners, managers, and members and their respective heirs, legatees, devisees, executors, administrators, trustees, personal representatives, successors and assigns (each, a “Group LLC Indemnified Party”), from and against any and all Losses incurred by any Group LLC Indemnified Party directly arising from, as a result of, in connection with, or relating to: (a) any inaccuracy or breach of any representations made by GREC LLC in Article IV; and (b) the breach or failure to perform any covenant or agreement made or undertaken by GREC LLC in this Agreement solely to the extent such breach or failure was the result of GREC LLC acting at the explicit direction of the independent directors of the Board of Directors of GREC LLC.

Section 6.3.       Indemnifying Procedures.

(a)       Upon receipt by a Group LLC Indemnified Party or a GREC LLC Indemnified Party (as the case may be, the “Indemnified Party”) of notice from a Third Party of any action, suit, proceeding, claim, demand, or assessment against such Indemnified Party that might give rise to a claim for Losses under this Article VI, the Indemnified Party shall promptly give written notice thereof to GREC LLC, on the one hand, or Group LLC, on the other hand (as the case may be, the “Indemnifying Party”), indicating the nature of such claim and the basis therefor; provided, however, that failure to give such notice shall not affect the indemnification obligations provided hereunder except to the extent the Indemnifying Party shall have been prejudiced as a result of such failure. The Indemnifying Party will have thirty (30) days after such notice is given (the “Notice Period”) to notify the Indemnified Party (i) whether or not it disputes the liability of the Indemnifying Party to the Indemnified Party hereunder with respect to such claim or demand, and (ii) whether or not it desires, at the cost and expense of the Indemnifying Party, to defend the Indemnified Party with respect to the Third Party claim; provided, however, that any Indemnified Party is hereby authorized, but is not obligated, prior to and during the Notice Period, to file any motion, answer or other pleading that it reasonably shall deem necessary or appropriate to protect its interests or those of the Indemnifying Party. If the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against the Third Party claim, the Indemnifying Party will have the right to control the defense of such matter by all appropriate proceedings and with counsel of its own choosing and at its sole cost and expense. If the Indemnified Party desires to participate in any such defense, it may do so at its sole cost and expense, and in a manner so as not to unreasonably interfere with the defense of such matter by the Indemnifying Party. If the Indemnifying Party fails to respond to the Indemnified Party within the Notice Period, elects not to defend the Indemnified Party, or after electing to defend fails to commence or reasonably pursue such defense, then the Indemnified Party shall have the right, but not the obligation, to undertake or continue the defense of, and to compromise or settle (exercising reasonable business judgment), the matter all on behalf, for the account, and at the risk, of the Indemnifying Party; provided, however, that any such compromise or settlement consists solely of money damages to be borne by the Indemnifying Party and otherwise shall be reasonably satisfactory to the Indemnifying Party and shall contain as an unconditional term thereof a full and complete release of the Indemnifying Party by the Third Party in form and substance reasonably satisfactory to the Indemnifying Party. Payments to the Indemnified Party for Losses for Third Party claims which are otherwise covered by the indemnification obligations herein shall not be required except to the extent that the Indemnified Party has expended or simultaneously with such payment will expend, out-of-pocket sums. If the Indemnifying Party has assumed the defense of a Third Party claim, it shall reasonably proceed with such defense and promptly notify the Indemnified Party if it proposes to compromise or settle such Third Party claim for the account, and at the risk, of the Indemnifying Party in accordance with this Section 6.3. In any event in which the Indemnifying Party has assumed the defense of a Third Party claim, the Indemnified Party and its counsel shall cooperate with the Indemnifying Party and its counsel; provided, however, that the foregoing shall not prevent the Indemnified Party from taking the position that it is entitled to indemnification hereunder.

(b)       In the event any Indemnified Party should have an indemnification claim against any Indemnifying Party that does not involve a claim by a Third Party, the Indemnified Party, as quickly as is practicable (but in any event within thirty (30) days after becoming aware of an indemnification claim) and by the most expeditious means available (promptly confirmed in writing), shall deliver notice of such claim to the Indemnifying Party in reasonable detail. The failure by any Indemnified Party to so notify the Indemnifying Party shall relieve the Indemnifying Party from any liability that it may have to such Indemnified Party to the extent that the Indemnifying Party has been prejudiced by such failure unless such prejudice can be reasonably cured without expense to the Indemnified Party. If the Indemnifying Party disputes its liability with respect to such claim in a timely manner, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute may be resolved by litigation before an appropriate Governmental Entity of competent jurisdiction subject to the terms of this Agreement.

(c)       GREC LLC shall, and shall instruct its respective directors, officers, partners, and employees and its attorneys, accountants and agents to, at the request of Group LLC, cooperate with Group LLC as may be reasonably required in connection with the investigation and defense of any Third Party claim, Action or investigation relating to the Business or the Excluded Liabilities that is brought against Group LLC or any of its Affiliates relating in any way to the Business at any time on or after the Closing. Likewise, Group LLC shall, and shall instruct its, and its Affiliates’, directors, managers, officers, employees, attorneys, accountants and agents to, at GREC LLC’s request, cooperate with GREC LLC as may be reasonably required in connection with the investigation and defense of any Third Party claim, Action, or investigation relating to the Contributed Interests, Contributed Assets, or Assumed Liabilities that is brought against GREC LLC or any of its Affiliates at any time on or after the Closing.

Section 6.4.       Survival.

(a)       The representations and warranties of (i) GREC LLC contained in this Agreement will survive the Closing until the applicable statute of limitations and (ii) Group LLC will survive the Closing until (A) the applicable statute of limitations with respect to the Fundamental Representations and (B) 18 months from the Closing in the case of all other representations and warranties (such 18-month period, the “Survival Period”).

(b)       Except as otherwise expressly provided in this Agreement, (i) all covenants and agreements contained in this Agreement, to the extent that by their terms are to be performed prior to the Closing, will terminate at and as of the Closing, and thereafter neither any Party to this Agreement nor any other person will have any rights, remedies, or obligations in respect of such covenants or agreements, and (ii) all covenants and agreements contained in this Agreement, to the extent that by their terms are to be performed after the Closing, will survive the Closing until performed in full.

(c)       Notwithstanding the foregoing, an indemnification claim asserted in good faith in accordance with this Article VI on or prior to the expiration of the applicable survival period shall not thereafter be barred by the expiration of the survival period, and may be pursued thereafter without regard to such expiration until such claim shall have been finally resolved or settled.

Section 6.5.       Limitations. Notwithstanding anything to the contrary contained in this Agreement or in any other Transaction Document:

(a)       (i) No Indemnified Party will be entitled to indemnification under Section 6.1(a) or Section 6.2(a) of this Agreement, as applicable, unless such Indemnified Party has incurred Losses in excess of $1,607,733 in the aggregate (the “Deductible”), in which case such Indemnified Party will be entitled to indemnification under Section 6.1(a) or Section 6.2(a) of this Agreement, as applicable, for an amount equal to the aggregate Losses in excess of the Deductible; and (ii) the maximum aggregate liability of the Indemnifying Party for Losses to which the Indemnified Party is entitled to indemnification under Section 6.1(a) or Section 6.2(a) of this Agreement, as applicable, shall be limited to $21,436,444 in the aggregate, provided, however, that the aggregate amount of all Losses for which any Indemnifying Party shall be liable pursuant to this Agreement shall not exceed at any time the value of the GREC LLC Common Shares (or such securities into which the GREC LLC Common Shares were then converted, if applicable) received pursuant to this Agreement, provided that once Group LLC has forfeited all of its GREC LLC Common Shares (or such securities into which the GREC LLC Common Shares were then converted, if applicable) received pursuant to this Agreement, and any distributions or other amounts earned thereon or received in respect thereof, in satisfaction of such Group LLC Indemnifying Party’s liability for Losses pursuant to this Agreement, then Group LLC shall have no further obligation or liability for Losses pursuant to this Agreement; provided further, however, that neither the Deductible nor the maximum aggregate liability provided in (ii) herein shall apply to any claims of, or causes of action arising out of, involving, or otherwise in respect of any breach of a Fundamental Representation or Fraud.

(b)       For purposes of determining whether a breach of any representation or warranty for which indemnification may be provided pursuant to this Article VI has occurred and calculating the resulting Losses, all qualifications with respect to materiality, Material Adverse Effect, or other similar qualification contained in or otherwise applicable to such representation or warranty will be disregarded and will not be taken into effect.

(c)       The amount of any Loss for which indemnification is provided under this Article VI shall be net of (i) any amounts recovered by the Indemnified Party pursuant to any indemnification by, or indemnification agreement with, any Third Party or, (ii) Third Party insurance proceeds (for the avoidance of doubt, not including self-insurance or insurance with a captive insurance Affiliate) or other sources of reimbursement received, which shall be an offset against such Loss. The Indemnified Party shall use commercially reasonable efforts to seek recovery from all such sources to minimize any Loss for which indemnification is provided under this Article VI. If the amount to be netted hereunder from any payment required under this Article VI is determined after payment by the Indemnifying Party of any amount otherwise required to be paid to an Indemnified Party pursuant to this Article VI, the Indemnified Party shall repay to the Indemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to this Article VI had such determination been made at the time of such payment.

(d)       No Indemnified Party shall be entitled to double recovery for any indemnifiable Losses even though such Losses may have resulted from the breach of more than one of the representations, warranties, agreements, and covenants of this Agreement.

Section 6.6.       Exclusive Remedy.

(a)       The Parties acknowledge and agree that the remedies provided for in this Article VI shall be the Parties’ sole and exclusive remedies with respect to the subject matter of this Agreement, other than for a claim of Fraud or willful misconduct. No amount shall be recoverable under this Agreement by any Indemnified Party to the extent such party has asserted a claim and received indemnification for such Loss under any Transaction Document other than this Agreement or under applicable Law. It is the Parties’ intention that the indemnification provisions set forth in this Agreement shall control and determine the Parties’ respective rights and obligations concerning any claims with respect to the Internalization Transaction.

(b)       NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, IN NO EVENT SHALL ANY PARTY BE LIABLE UNDER THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF ACTION THROUGH WHICH SUCH DAMAGES ARE SOUGHT; PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT OR IN ANY TRANSACTION DOCUMENT SHALL LIMIT OR PRECLUDE ANY INDEMNIFICATION OR RECOVERY WITH RESPECT TO ANY DAMAGES THAT MAY BE AWARDED IN CONNECTION WITH A THIRD PARTY CLAIM FOR WHICH A PARTY IS ENTITLED TO BE INDEMNIFIED.

Section 6.7.       Method of Payment.

(a)       All amounts due and payable from an Indemnifying Party to an Indemnified Party shall be satisfied by (i) issuance of GREC LLC Common Shares, free and clear of all Encumbrances, other than restrictions on transfer under applicable securities Laws, pursuant to the Amended GREC LLCA, the Certificate of Designation, or the terms of any agreement entered into between the Parties, or (ii) cancellation of, and forfeiture of any and all right to, GREC LLC Common Shares received pursuant to this Agreement, as the case may be (and not by cash), within five (5) Business Days following final determination of a claim pursuant to Section 6.3, by delivery of a number of GREC LLC Common Shares (or such securities into which the GREC LLC Common Shares were then converted, if applicable), equal in value to the amount of such indemnification obligation, with the value and resulting number of GREC LLC Common Shares (or such securities into which the GREC LLC Common Shares were then converted, if applicable) to be determined pursuant to the Final Valuation and the Schedule 1.4: Consideration Schedule hereto, and to be satisfied in the first instance from the Indemnity Holdback Shares.

(b)       The Parties shall cooperate reasonably to make any adjustments to the above methodology to take into account any issuances of GREC LLC Common Shares following the date hereof that are not the result of a claim of indemnification hereunder, including pursuant to any share splits, dividends or distributions, combinations, recapitalizations, and the like.

Section 6.8.       Tax Treatment of Indemnification Payments. All GREC LLC Common Shares issued pursuant to Section 6.7 shall be treated for tax purposes as an adjustment to the net value of the Contributed Assets contributed for the Consideration, unless otherwise required by Law.

Article VII

GENERAL

Section 7.1.       Exhibits and Schedules; Entire Agreement. Each schedule and exhibit delivered pursuant to the terms of this Agreement shall be in writing and shall constitute a part of this Agreement as if it were set forth verbatim herein. This Agreement, together with such schedules and exhibits, constitutes the entire agreement among the Parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, representations, and warranties, written or oral, of the Parties in connection therewith.

Section 7.2.       Interpretation. For all purposes of this Agreement and the Transaction Documents, except as otherwise specifically stated therein:

(a)       All references in this Agreement to Exhibits, Schedules, Articles, Sections, subsections and other subdivisions refer to the corresponding Exhibits, Schedules, Articles, Sections, subsections and other subdivisions of or to this Agreement unless expressly provided otherwise. Titles appearing at the beginning of any Articles, Sections, subsections or other subdivisions of this Agreement are for convenience only, do not constitute any part of this Agreement, and shall be disregarded in construing the language hereof.

(b)       All references to “$” and dollars shall be deemed to refer to United States currency unless otherwise specifically provided.

(c)       Pronouns in masculine, feminine or neuter genders shall be construed to state and include any other gender, and words, terms, and titles (including terms defined herein) in the singular form shall be construed to include the plural and vice versa, unless the context otherwise requires.

(d)       All accounting terms not otherwise defined herein have the meanings assigned under GAAP.

(e)       “Include,” “included,” and “including” (regardless of whether capitalized) mean to include without limitation, to be included without limitation, or including without limitation, as the case may be.

(f)       “Shall” and “will” are synonymous.

(g)       The words “this Agreement,” “herein,” “hereby,” “hereunder” and “hereof,” and words of similar import, refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The words “this Article,” “this Section” and “this subsection,” and words of similar import, refer only to the Article, Section, or subsection hereof in which such words occur. The word “or” is exclusive.

Section 7.3.       No Other Representations or Warranties.

(a)       NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IT IS THE EXPLICIT INTENT OF EACH PARTY, AND THE PARTIES HEREBY AGREE, THAT NONE OF THE PARTIES OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES HAS MADE OR IS MAKING, AND GROUP LLC (ON BEHALF THE CONTRIBUTED COMPANIES, ITSELF, ITS AFFILIATES AND REPRESENTATIVES) HEREBY DISCLAIMS, ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING ANY IMPLIED REPRESENTATION OR WARRANTY AS TO THE CONDITION, MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO THE SECURITIES OR THE CONTRIBUTED COMPANIES OR THEIR RESPECTIVE ASSETS, PROPERTIES, BUSINESS, CONDITION (FINANCIAL OR OTHERWISE) OR PROSPECTS, EXCEPT THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, GROUP LLC (ON BEHALF OF ITSELF, ITS AFFILIATES AND REPRESENTATIVES) EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO (I) THE OWNERSHIP, MARKETABILITY, CONDITION, VALUE OR QUALITY OF THE CONTRIBUTED INTERESTS, THE CONTRIBUTED ASSETS, OR THE CONTRIBUTED COMPANIES OR THEIR RESPECTIVE ASSETS AND PROPERTIES OR (II) THE PROSPECTS (FINANCIAL OR OTHERWISE) AND RISKS RELATED TO THE CONTRIBUTED INTERESTS, THE CONTRIBUTED ASSETS, OR THE CONTRIBUTED COMPANIES AND THEIR RESPECTIVE ASSETS AND PROPERTIES.

(b)       GROUP LLC MAKES NO REPRESENTATION OR WARRANTY TO GREC LLC AS TO THE ACCURACY OR REASONABLENESS OF ANY FINANCIAL PROJECTIONS OR FORECASTS RELATING TO THE CONTRIBUTED INTERESTS, THE CONTRIBUTED ASSETS, OR THE CONTRIBUTED COMPANIES OR THEIR RESPECTIVE ASSETS, PROPERTIES, BUSINESS, OR PROSPECTS, EXCEPT AS PROVIDED IN THIS AGREEMENT.

(c)       NONE OF GROUP LLC, ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE REPRESENTATIVES MAKES ANY REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF, OR WILL HAVE, OR BE SUBJECT TO, ANY LIABILITY TO GREC LLC OR ANY OTHER PERSON RESULTING FROM THE DISTRIBUTION TO GREC LLC OR ITS AFFILIATES OR REPRESENTATIVES OF, OR GREC LLC’S USE OF, ANY INFORMATION RELATING TO THE CONTRIBUTED INTERESTS, THE CONTRIBUTED ASSETS, THE CONTRIBUTED COMPANIES OR THEIR RESPECTIVE BUSINESS, ASSETS OR LIABILITIES OR ANY OTHER MATTER RELATING TO THE TRANSACTIONS, INCLUDING ANY DESCRIPTIVE MEMORANDA, SUMMARY BUSINESS DESCRIPTIONS OR INFORMATION, DOCUMENTS OR MATERIALS MADE AVAILABLE TO GREC LLC OR ITS AFFILIATES OR REPRESENTATIVES, WHETHER ORALLY OR IN WRITING, IN CERTAIN “DATA ROOMS,” MANAGEMENT PRESENTATIONS, FUNCTIONAL “BREAK-OUT” DISCUSSIONS, RESPONSES TO QUESTIONS SUBMITTED ON BEHALF OF GREC LLC OR ANY OTHER FORM, IN EXPECTATION OF THE TRANSACTIONS, EXCEPT, IN EACH CASE, AS PROVIDED IN THIS AGREEMENT.

(d)       EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE CONTRIBUTED INTERESTS, THE CONTRIBUTED ASSETS, AND THE CONTRIBUTED COMPANIES AND THEIR RESPECTIVE ASSETS AND PROPERTIES BEING TRANSFERRED THROUGH THE CONTRIBUTION OF THE CONTRIBUTED INTERESTS AND THE CONTRIBUTED ASSETS ARE BEING TRANSFERRED “AS IS, WHERE IS, WITH ALL FAULTS.”

Section 7.4.      Governing Law. This Agreement (and unless otherwise specifically stated therein, each other Transaction Document) is governed by and construed in accordance with the internal, substantive laws of the State of New York applicable to agreements made and to be performed entirely within such state, without regard to conflicts of law principles.

Section 7.5.       Submission to Jurisdiction; Consent to Service of Process; WAIVER OF JURY TRIAL.

(a)       The Parties hereby irrevocably submit to the non-exclusive jurisdiction of any federal or state court located within the Borough of Manhattan in the City of New York, New York over any dispute arising out of or relating to this Agreement or any of the Transaction Documents or the transactions contemplated hereby and thereby, and each Party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action proceeding related thereto may be heard and determined in such courts. The Parties hereby irrevocably waive, to the fullest extent permitted by Law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. Each of the Parties agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

(b)       Each of the Parties hereby consents to process being served by the other Party in any suit, action or proceeding by the delivery of a copy thereof in accordance with the provisions of Section 7.9.

(c)       EACH OF THE PARTIES HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR ANY TRANSACTION DOCUMENT OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES IN RESPECT OF THIS AGREEMENT OR ANY TRANSACTION DOCUMENT OR ANY OF THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION WILL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

(d)       Waivers and Amendments. This Agreement and each Transaction Document may be amended, superseded, cancelled, renewed or extended, and the terms hereof or thereof may be waived, only by a written agreement signed (in counterparts or otherwise) by each of the Parties or other parties thereto, or in the case of a waiver, by the party waiving compliance. The failure of a party to insist, in any one or more instances, upon performance of the terms or conditions of this Agreement or any Transaction Document will not be or be construed as a waiver or relinquishment of any right granted hereunder or of the future performance of any such term, covenant or condition. No waiver on the part of any Party of any right, power or privilege, nor any single or partial exercise of any such right, power or privilege, will preclude any further exercise thereof or the exercise of any other such right, power or privilege.

Section 7.6.       Binding Effect; Assignment. This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns. Neither this Agreement nor any other Transaction Document, nor any of the rights hereunder or thereunder, may be assigned by any Party, nor may any Party delegate any obligations hereunder or thereunder, without the written consent of the other Party. Any non-permitted assignment or attempted assignment is void.

Section 7.7.       Headings. The descriptive headings of the articles, sections and subsections of this Agreement are for convenience only and do not constitute a part of this Agreement.

Section 7.8.      Parties in Interest. This Agreement shall be binding upon, and inure to the benefit of, each Party, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Agreement. Nothing in this Agreement is intended to relieve or discharge the obligation of any Third Party to any Party to this Agreement.

Section 7.9. Notices. All notices, demands, and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered, on the date delivered, (b) when transmitted via e-mail, on the date sent by the delivering Party if sent prior to 5:00 p.m. (New York time) on a Business Day(and, if not sent prior to such time on a Business Day, the next Business Day), (c) one (1) Business Day after being sent prepaid by a reputable courier service (providing proof of delivery) or (d) the third (3^rd) Business Day following the day on which the same is sent by certified or registered mail, postage prepaid. Notices, demands and communications, in each case to the respective Parties, shall be sent to the applicable address set forth below, unless another address has been previously specified in writing:

If to Group LLC, addressed to:

Greenbacker Group LLC 

30 Danforth Street, Suite 206 

Portland, ME 04101 

Attention: General Counsel 

Email: generalcounsel@greenbackercapital.com

with a copy (which shall not constitute notice) to:

Clifford Chance US LLP 

31 West 52nd Street 

New York, NY 10019 

Attention: Jay Bernstein and Michael Bonsignore 

Email:    jay.bernstein@cliffordchance.com 

michael.bonsignore@cliffordchance.com

If to GREC LLC, addressed to:

Greenbacker Renewable Energy Company, LLC

230 Park Avenue, Suite 1560 

New York, NY 10169 

Attention: David Kastin 

Email: david.kastin@gmail.com

with a copy (which shall not constitute notice) to:

Kirkland & Ellis LLP 

601 Lexington Avenue 

New York, NY 10022 

Attention: David B. Feirstein, P.C. 

Email: david.feirstein@kirkland.com

Kirkland & Ellis LLP 

609 Main Street 

Houston, TX 77002 

Attention: Cyril V. Jones, P.C. 

Email: cyril.jones@kirkland.com

or to such other address or to such other Person as each Party shall have last designated by notice given in accordance with this Section 7.9 to the other Parties.

Section 7.10.     Expenses. Except as otherwise set forth in this Agreement, each of Group LLC and GREC LLC shall pay its own expenses incident to the negotiation, preparation and performance of this Agreement, the Transaction Documents, and the transactions contemplated hereby and thereby, including the fees, expenses, and disbursements of its accountants and counsel and of securing Third Party consents and approvals required to be obtained by them. The Parties agree that the expenses of Ferguson Partners Ltd., Kirkland and Ellis LLP, Meridian Compensation Partners, LLC and Greenhill & Co., LLC are expenses that are for the benefit of GREC LLC and its Affiliates and shall be paid by GREC Corp. The provisions of this Section 7.10 shall survive the Closing.

Section 7.11.     Representation by Counsel; Mutual Drafting; Interpretation. Each of Group LLC and GREC LLC acknowledges that each Party to this Agreement has been represented by counsel in connection with this Agreement and the transactions contemplated by this Agreement. This Agreement reflects the language mutually chosen by the Parties to express their understanding and agreement, and is to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any language to be drafted. Accordingly, any rule of Law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the Party that drafted it has no application and is expressly waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the intent of GREC LLC and Group LLC.

Section 7.12.    Severability. Whenever possible, each provision of this Agreement and any Transaction Document is to be interpreted in such manner as to be effective and valid under Law, but if any provision of this Agreement or any Transaction Document is held by a court of competent jurisdiction to be prohibited, unenforceable, by or invalid under Law, such provision will be ineffective only to the extent of such prohibition, unenforceability, or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement or such Transaction Document, and this Agreement shall be reformed, construed and enforced to give effect to the intent of the Parties to the maximum extent permitted by applicable Law.

Section 7.13.    Counterparts. This Agreement and each Transaction Document may be executed by the Parties in separate counterparts and by facsimile or by electronic mail with scan or attachment signature, each of which when so executed and delivered will be an original, but all such counterparts will together constitute one and the same agreement. Each counterpart may consist of a number of copies hereof or thereof each signed by less than all, but together signed by all of the Parties.

Section 7.14.    Conflict Between Transaction Documents. The Parties agree and acknowledge that to the extent any terms and provision of this Agreement are in any way inconsistent with or in conflict with any term, condition or provision of any other agreement, document or instrument contemplated hereby, this Agreement shall govern and control.

Section 7.15.    Non-Recourse. No past, present, or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, or representative of any Party shall have any liability for any obligations or liabilities of such Party under this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby.

Section 7.16.     No Rescission. Except in the event of Fraud, no Party will be entitled to rescind any transaction contemplated by this Agreement.

Section 7.17.     Time of the Essence. Time is of the essence with respect to each and every provision of this Agreement.

Article VIII

DEFINITIONS

Section 8.1.       Definitions. For all purposes of the Transaction Documents, except as otherwise expressly provided or unless the context in which a term is used clearly requires otherwise:

“Accounting Expert” has the meaning set forth in Section 1.6(c).

“Action” means any action, complaint, petition, suit or other legal proceeding, whether civil or criminal, in law or in equity, or before any arbitrator or Governmental Entity.

“Administration Interests” has the meaning set forth in the recitals of this Agreement.

“Administration LLC” has the meaning set forth in the recitals of this Agreement.

“Affiliate” means with respect to any Person, any other Person that controls, is controlled by or is under common control with such Person. For purposes of this definition, “control” (including, with its correlative meanings, the terms “controlling,” “controlled by,” and “under common control with”) as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through ownership of voting securities or equity interests, by Contract or otherwise. Notwithstanding the foregoing, in no event shall any of the Contributed Companies be considered an Affiliate of Group LLC following the Closing.

“Agreement” has the meaning set forth in the introductory paragraph.

“Amended GREC LLCA” has the meaning set forth in the recitals, and substantially in the form attached hereto as Exhibit A.

“Assigned Contracts” has the meaning set forth in Section 1.9(a).

“Assumed Liability” and “Assumed Liabilities” each has the meaning set forth in Section 1.3.

“Benefit Plan” means any contract, agreement, policy, practice, program, plan, trust, commitment or arrangement providing for benefits, perquisites or compensation of any nature to any current or former employee, or to any family member, dependent, or beneficiary of any such employee, including pension, retirement, profit sharing, equity or equity-based compensation, bonus, commission, incentive, welfare, thrift, deferred compensation, supplemental pension, employment, fringe benefits, severance, change in control, travel, accident, life, disability and accident insurance, tuition reimbursement, travel reimbursement, vacation, sick, personal or bereavement days, leaves of absences and holidays, in each case, that is sponsored, maintained, contributed to or required to be contributed to by Group LLC or GREC LLC or any of their Affiliates, as applicable, or under or with respect to which Group LLC or GREC LLC or any of their Affiliates has any current or contingent Liability or obligation.

“Bill of Sale and Assignment and Assumption Agreement” has the meaning set forth in Section 2.2(d)(i).

“Business” means the business of: (i) in the case of Manager, renewable energy, energy efficiency and sustainability-related project acquisition, consulting, and development activities (and registered as an investment adviser under the Investment Advisers Act of 1940, as amended), (ii) in the case of Administration LLC and Holdings LLC, providing administrative services including technical, financial, legal and operational asset management services to GREC LLC and GREC Corp, (iii) and in the case of GDOGP, serving as general partner of Greenbacker Development Opportunities Fund I, L.P., a Delaware limited partnership.

“Business Data” means all Business information and all personally-identifying information and data (whether of employees, contractors, consultants, customers, consumers, or other Persons and whether in electronic or any other form or medium) that is accessed, collected, used, processed, stored, shared, distributed, transferred, disclosed, destroyed, or disposed of by any of the Business Systems.

“Business Day” means any day other than (i) a Saturday or a Sunday or (ii) a day on which banking and other deposit gathering institutions in the Borough of Manhattan, City and State of New York are authorized or required by applicable Law to be closed.

“Business Employee” has the meaning set forth in Section 3.13(a).

“Business IP” means all Owned IP, as well as all other Intellectual Property used in or necessary for the conduct of the Business.

“Business Systems” means all software, computer hardware (whether general or special purpose), electronic data processing, information, record keeping, communications, telecommunications, networks, interfaces, platforms, servers, peripherals, and computer systems, including any outsourced systems and processes that are owned or used by or for the Contributed Companies in the conduct of the Business.

“Certificate of Designation” means that certain Certificate of Designation, entered into following the execution of the Amended GREC LLCA and dated as of May 19, 2022, amending the Amended GREC LLCA and creating and designating the Class EO Common Shares, substantially in the form attached as Exhibit E hereto.

“Class EO Common Shares” means the Class EO Common Shares, par value $0.001 per share, of GREC LLC (subject to adjustments as set forth in the Amended GREC LLCA and the Certificate of Designation).

“Closing” has the meaning set forth in Section 2.1.

“Closing Date” has the meaning set forth in Section 2.1.

“Closing Financial Statement” has the meaning set forth in Section 1.6(a).

“Code” means the Internal Revenue Code of 1986, as amended, and all regulations and formal guidance promulgated thereunder.

“Confidential Information” means information of or concerning the Business, the Internalization Transaction, Group LLC, or GREC LLC, not generally known to the public, including, to the extent consistent with the foregoing, financial statements, financial projections and budgets, customer data, capital spending budgets and plans, and the names of key personnel, customer requirements, price lists, market studies, business plans, systems, structures and architectures.

“Consideration” has the meaning set forth in Section 1.4(a).

“Consideration Adjustment Holdback Shares” means that portion of the number of GREC LLC Common Shares issued to Group LLC at Closing pursuant to this Agreement representing $2,143,644, and to be held by Group LLC until at least the completion of the Positive Consideration Adjustment or Negative Consideration Adjustment pursuant to Section 1.7.

“Contract” means any contract, lease, license, indenture, agreement, commitment, obligation, or other legally binding arrangement (including any amendments, supplements or modification thereto) whether written or oral.

“Contributed Assets” has the meaning set forth in Section 1.1.

“Contributed Companies” has the meaning set forth in the recitals of this Agreement.

“Contributed Interests” has the meaning set forth in the recitals of this Agreement.

“Contribution” has the meaning set forth in the recitals of this Agreement.

“Data Security Requirements” means, collectively, all of the following to the extent relating to data processing or otherwise relating to privacy, security, or security breach notification requirements and applicable to the Contributed Companies, to the conduct of the Business, or to any of the Business Systems or any Business Data: (i) the Contributed Companies’ own rules, policies, and procedures; (ii) all applicable Laws; and (iii) requirements under any agreements, contracts, and other written arrangements into which the Contributed Companies have entered or by which they are otherwise bound.

“Deductible” has the meaning set forth in Section 6.5(a).

“Earnout Shares” has the meaning set forth in the recitals of this Agreement.

“Effective Time” means 12:01 a.m. (New York time) on January 1, 2022.

“Encumbrance” means with respect to any specified asset, any and all liens, mortgages, hypothecations, claims, encumbrances, options, pledges, preferences, priorities, licenses, easements, covenants, restrictions and security interests thereon (whether absolute, contingent, asserted or unasserted, known or unknown).

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and all rules and regulations promulgated thereunder.

“ERISA Affiliate” means any Person that, together with Group LLC, the Contributed Companies, and their Subsidiaries, is (or at any relevant time has been or would be) treated as a single employer under Section 414 of the Code.

“Estimated Consideration” has the meaning set forth in Section 1.5(a).

“Estimated Consideration Certificate” has the meaning set forth in Section 1.5(a).

“Excluded Assets” has the meaning set forth in Section 1.2.

“Excluded Liability” and “Excluded Liabilities” each has the meaning set forth in Section 1.3.

“FATCA” has the meaning set forth in Section 5.5(c).

“FICA” has the meaning set forth in Section 5.4(e).

“Final Consideration” has the meaning set forth in Section 1.6(e).

“Final Valuation” has the meaning set forth in Section 1.6(f).

“Financial Statements” has the meaning set forth in Section 3.5(a).

“FMLA” means the U.S. Family and Medical Leave Act of 1993, as amended, and the regulations promulgated thereunder.

“Fraud” means that a court of competent jurisdiction has concluded, in an order, decree, ruling, or other action, that a Party has committed common law fraud under applicable Law in the making of a representation or warranty contained in Article III or Article IV of this Agreement and requires that: (i) the Party to be charged with such fraud made a false representation of material fact in Article III or Article IV of this Agreement; (ii) such Party had actual knowledge that such representation was false at the time such representation in Article III or Article IV of this Agreement was made and acted with scienter (and, for the avoidance of any doubt, such knowledge shall be deemed to exist only if such Party had actual knowledge, as opposed to imputed or constructive knowledge); (iii) the false representation caused the Party to whom it was made, in reliance upon such false representation and with ignorance as to the falsity of such representation, to take or refrain from taking action; and (iv) the Party to whom the false representation was made suffered damage by reason of such reliance. “Fraud” expressly excludes legal theories such as equitable fraud, promissory fraud, unfair dealings fraud, negligent or reckless misrepresentation.

“Fundamental Representation(s)” means the representations and warranties set forth in Section 3.1 (Organization and Good Standing), Section 3.2 (Power and Authority; Due Authorization; Enforceability), Section 3.4 (Capitalization; Title), Section 3.7 (Compliance with Applicable Laws), and Section 3.16 (Brokers, Finders, and Advisors).

“FUTA” has the meaning set forth in Section 5.4(e).

“GAAP” means United States generally accepted accounting principles, consistently applied.

“GDOGP” has the meaning set forth in the recitals of this Agreement.

“GDOGP Interests” has the meaning set forth in the recitals of this Agreement.

“Governmental Entity” means any foreign, domestic, federal, territorial, state, county, regional, local, or other governmental authority, quasi-governmental authority, or instrumentality, or any regulatory, administrative, or other agency, or any political or other subdivision, department, or branch of any of the foregoing.

“GREC Corp” has the meaning set forth in the recitals of this Agreement.

“GREC LLC” has the meaning set forth in the introductory paragraph to this Agreement.

“GREC LLC Common Shares” has the meaning set forth in the recitals of this Agreement.

“GREC LLC Disclosure Schedules” means the disclosure schedules to this Agreement prepared by GREC LLC and delivered to Group LLC at Closing.

“GREC LLC Indemnified Party” has the meaning set forth in Section 6.1.

“GREC LLCA” has the meaning set forth in the recitals of this Agreement.

“Greenhill Engagement Letter” means that certain engagement letter, by and between the independent directors of the Board of Directors of GREC LLC and Greenhill & Co., LLC, dated as of January 5, 2022.

“Group LLC” has the meaning set forth in the introductory paragraph to this Agreement.

“Group LLC Benefit Plan” means each Benefit Plan sponsored and maintained by Group LLC or any of the Contributed Companies and in which only Business Employees participate.

“Group LLC Disclosure Schedules” means the disclosure schedules to this Agreement prepared by Group LLC and delivered to GREC LLC at Closing.

“Group LLC Indemnified Party” has the meaning set forth in Section 6.2

“Group LLC’s Knowledge” means, as to a particular matter, the actual knowledge after reasonable inquiry (and shall in no event encompass constructive, imputed, or similar concepts of knowledge), with respect to Group LLC, of David Sher, Charles Wheeler, Richard Butt, Spencer Mash, and Mehul Mehta.

“HIPAA” means the U.S. Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations promulgated thereunder.

“Holdings Interests” has the meaning set forth in the recitals of this Agreement.

“Holdings LLC” has the meaning set forth in the recitals of this Agreement.

“Houlihan Lokey Engagement Letter” means that certain engagement letter, by and between Houlihan Lokey Capital, Inc. and Manager, dated as of July 15, 2021.

“Indemnified Party” has the meaning set forth in Section 6.3(a).

“Indemnifying Party” has the meaning set forth in Section 6.3(a).

“Indemnity Holdback Shares” means that portion of the number of GREC LLC Common Shares issued to Group LLC at Closing pursuant to this Agreement representing $21,463,444, and to be held by Group LLC until at least the expiration of the Survival Period.

“Intellectual Property” means all rights, in all jurisdictions throughout the world, in (i) patent registrations, patent applications and patent disclosures; (ii) trademarks, service marks, trade dress, trade names, logos, slogans, corporate names, Internet domain names and registrations and applications for registration thereof, together with all of the goodwill associated therewith (and all translations, adaptations, derivations and combinations of the foregoing); (iii) copyright registrations and copyrightable works of authorship; (iv) mask works and registrations and applications for registration thereof; (v) software, databases and other collections of data; and (vi) trade secrets and other confidential information (including ideas, formulas, compositions, inventions (whether patentable or unpatentable and whether or not reduced to practice), know-how, algorithms, financial models, processes, methods and techniques, research and development information, customer accounts, identifying information regarding customers, drawings, specifications, designs, plans, proposals, technical data, financial and marketing plans and customer and supplier lists and information).

“Internalization Transaction” has the meaning set forth in the recitals of this Agreement.

“IP Contracts” means all of the following to which the Contributed Companies are a party or by which any of the Business IP is bound: licenses, sublicenses, options to license or purchase, rights of first refusal or first negotiation, settlement agreements, covenants-not-to-sue, releases, coexistence agreements, consent agreements, and non-compete agreements, in each case directed to the access to, use, disclosure, acquisition of or license under any rights in Intellectual Property.

“IRS” means the U.S. Internal Revenue Service.

“Kirkland & Ellis Retention Letter” means that certain engagement letter, by and between the independent directors of the Board of Directors of GREC LLC and Kirkland & Ellis LLP, dated as of December 28, 2021.

“Laws” means all applicable federal, state, local or foreign laws (including common law), constitutions, statutes, rules, regulations, ordinances, codes, standards, rulings, directives, judgments, orders (judicial or administrative), decrees, injunctions and writs of any Governmental Entity or any similar provisions having the force or effect of law.

“Leakage” means the aggregate amount of any of the following, without duplication, made by Group LLC or the Contributed Companies (but in each case, excluding any Leakage Exclusions): (a) any dividend or distribution of profits or assets (whether in cash or in kind) declared, paid or made by the Contributed Companies to any other Person in respect of any share capital or other equity securities of the Contributed Companies owned by such other Person, including, for the avoidance of doubt, Group LLC after the Effective Time and before the Closing; (b) any payments made or agreed to be made after the Closing by the Contributed Companies in respect of any share capital or other equity securities of the Contributed Companies in respect of the Contributed Companies’ share capital or other equity securities being issued, redeemed, purchased or repaid, or any other return of capital; (c) the making of any gift or other gratuitous payment to any holder of share capital or other equity securities of the Contributed Companies after the Effective Time and before the Closing; or (d) the payment or incurrence by any member of the Contributed Companies of any Tax as a consequence of any of the foregoing matters.

“Leakage Exclusions” means any and all of the following, without duplication, that have occurred on or after the Effective Time and through the Closing: (a) any payment, dividend, or distribution that is declared, paid, contributed, or made by any of the Contributed Companies to Group LLC, and subsequently declared, paid, contributed, or made by Group LLC (x) back to any of the Contributed Companies or (y) to satisfy any Liabilities, costs, expenses, or obligations of the Contributed Companies (whether incurred by any of the Contributed Companies or Group LLC on behalf of any of the Contributed Companies), in each case, prior to the Closing; (b) any payments that are expressly excluded from the definition of Leakage; and (c) any Tax payable by Group LLC or any of the Contributed Companies in respect of or in consequence of the foregoing.

“Lease” has the meaning set forth in Section 3.9(a).

“Leased Real Property” has the meaning set forth in Section 3.9(a).

“Liability” means all indebtedness, Taxes, obligations and other liabilities of a Person (whether known or unknown, asserted or unasserted, accrued or fixed, liquidated or unliquidated, due or to become due, absolute or contingent, matured or unmatured, or secured or unsecured, and whether or not resulting from third-party claims) and any out-of-pocket costs and expenses, including those arising under any Law, Action, investigation, inquiry or Order and those arising under any Contract.

“Liquidation Performance Feature” has the meaning set forth in the recitals of this Agreement.

“Liquidation Performance Unit” has the meaning set forth in the recitals of this Agreement.

“Loss” or “Losses” means any and all costs, expenses, direct losses or damages, deficiencies, claims, demands, settlements, judgments, fines, interest, awards, penalties or Liabilities (including reasonable attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) actually suffered or incurred, and excluding any (a) punitive damages or (b) special, incidental, indirect, or consequential loss or any direct or indirect loss of profit, or loss of goodwill or possible business, and reputational harm, except, in the case of the foregoing clause (b), to the extent such Losses are a reasonably foreseeable result of the event that gave rise thereto or the matter for which recovery is sought hereunder, regardless of the form of action through which such Losses are sought, and except in the case of the foregoing clauses (a) and (b), to the extent any such Losses are payable as part of a Third Party claim or settlement for which the Indemnified Party is entitled to indemnification under this Agreement.

“Management Employees” means each of David Sher, Charles Wheeler, Benjamin Baker, Richard Butt, Julianne Hull, Spencer Mash, Mehul Mehta, Matthew Murphy, Brandon Praznik, Robert Sher, and Jeffrey Sheridan, each of whom has an employment agreement or employment offer letter with Group LLC immediately prior to the Closing, and will be employed by GREC Corp following the Second Contribution.

“Manager” has the meaning set forth in the recitals of this Agreement.

“Manager Interests” has the meaning set forth in the recitals of this Agreement.

“Material Adverse Effect” means (a) with respect to Group LLC, any circumstance, event, change, or effect that, individually or in the aggregate: (i) is material and adverse to the financial condition, results of operations, business, assets, or liabilities of the Contributed Companies or its subsidiaries (on a collective basis), or (ii) would materially impair the ability of Group LLC to perform its duties and obligations under this Agreement, and (b) with respect to GREC LLC, any circumstance, event, change, or effect that, individually or in the aggregate: (i) is material and adverse to the financial condition, results of operations, business, assets, or liabilities of GREC LLC (on a collective basis), or (ii) would materially impair the ability of GREC LLC to perform its duties and obligations under this Agreement; provided, however, that Material Adverse Effect shall not be deemed to include the impact of: (a) changes in Laws or interpretations thereof or binding directives of Governmental Entities, (b) the announcement of this Agreement and the transactions contemplated hereby or the taking of any action contemplated by this Agreement or the Transaction Documents or the transactions contemplated hereby or thereby, (c) changes in GAAP or the interpretations thereof, (d) compliance with, and performance of, this Agreement and the transactions contemplated by this Agreement, (e) changes or conditions (including changes in economic, financial market, credit market, regulatory or political conditions) affecting the United States or state economies, or the industry in which such Person operates, and which do not have a materially disproportionate impact on such Person, as compared to similarly situated Persons, (f) the failure of such Party to meet projections of earnings, revenues or other financial measures (whether such projections were made by the Party or any independent Third Parties), (g) national or international political or social conditions, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack within or upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, (h) changes in financial, banking, or securities markets (including any disruption thereof and any decline in the price of any security or any market index) (i) pandemics, earthquakes, hurricanes, floods, or other natural disasters, and (j) actions or omissions of such Party taken with the express prior written consent of the other Party in contemplation of the transactions contemplated hereby; provided, however, that any “Material Adverse Effect” shall not be excluded if, and to the extent such effect disproportionately affects Group LLC and the Business, as compared to other persons engaged in businesses similar to the Business.

“Material Contracts” has the meaning set forth in Section 3.12(a).

“Meridian Engagement Letter” means that certain engagement letter, by and between the independent directors of the Board of Directors of GREC LLC and Meridian Compensation Partners LLC, dated as of January 25, 2022.

“Negative Consideration Adjustment” has the meaning set forth in Section 1.7(a)

“Notice Period” has the meaning set forth in Section 6.3(a).

“Order” means any decree, injunction, judgment, order, ruling, assessment or writ of a Governmental Entity or arbitration award.

“Organizational Documents” means the articles of incorporation, certificate of incorporation, charter, bylaws, articles or certificate of formation or organization, operating agreement, limited liability company agreement, certificate of limited partnership, partnership agreement, and all other similar documents, instruments, or certificates executed, adopted, or filed in connection with the creation, formation, or organization of a Person, including any amendments thereto.

“Owned IP” has the meaning set forth in Section 3.15(a).

“Parties” has the meaning set forth in the introductory paragraph.

“Party” has the meaning set forth in the introductory paragraph.

“PEO Plan” means any employee benefit or compensation plan or arrangement that is sponsored or maintained by a professional employer organization for the benefit of Business Employees under an arrangement between a Contributed Company and such professional employer organization.

“Permit” means any license, permit, franchise, certificate of authority, approval, registration, or authorization, or any waiver of the foregoing, required to be issued by any Governmental Entity.

“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a Governmental Entity or any department, agency or political subdivision thereof.

“Positive Consideration Adjustment” has the meaning set forth in Section 1.7(b).

“Pre-Closing Tax Period” means any taxable period (or portion thereof) ending on or before the end of the Closing Date.

“Protection Plan” has the meaning set forth in Section 5.4(b).

“Quarterly Performance Feature” has the meaning set forth in the recitals of this Agreement.

“Regulation D” has the meaning set forth in Section 3.17(a).

“Representatives” means, as applicable to any Person, any and all directors, officers, managers, employees, consultants, financial advisors, counsel, accountants, subcontractors, and other agents of such Person.

“Second Contribution” has the meaning set forth in the recitals of this Agreement.

“Second Contribution Agreement” means that certain Contribution Agreement, by and between GREC LLC and GREC Corp effecting the Second Contribution, entered into immediately following the Closing hereof, and dated as of the date hereof.

“Securities Act” means the Securities Act of 1933, as amended.

“Special Unit” has the meaning set forth in the recitals of this Agreement.

“Survival Period” has the meaning set forth in Section 6.4(a).

“Tax” or “Taxes” means any and all taxes, duties, assessments or governmental charges, imposts, levies or other assessments, fees or other charges imposed by any Governmental Entity, including federal, state, provincial, local or foreign income, gross receipts, license, payroll, employment- related, excise, goods and services, harmonized sales, severance, stamp, occupation, premium, windfall profits, customs duties, capital stock, franchise, profits, withholding, social security, unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not.

“Tax Return” means any return (including any information return), report, statement, schedule, notice, form, or other document or information filed with or submitted to, or required to be filed with or submitted to, any Taxing Authority in connection with the determination, assessment, collection, or payment of any Tax or in connection with the administration, implementation, or enforcement of or compliance with any Law relating to any Tax, including any amendment thereof.

“Taxing Authority” means the IRS or any other Governmental Entity responsible for the administration of any Tax.

“Third Party” means any Person other than any Party.

“Transaction Documents” means this Agreement; the Second Contribution Agreement; the Amended GREC LLCA; the Certificate of Designation; the Bill of Sale and Assignment and Assumption Agreement; the Transition Services Agreement; the Account Transfer (Re-Registration) Form; and any amendments to any of them.

“Transaction Expenses” means all of the following amounts, without duplication, but in each case only to the extent incurred by Group LLC at any time or by the Contributed Companies at or prior to the Closing, payable by the Contributed Companies, unpaid as of the Closing: (i) fees and expenses of attorneys, accountants, investment bankers and other advisors of Group LLC and the Contributed Companies and their respective Affiliates relating to the transactions contemplated hereby, including the fees and expenses of Clifford Chance US LLP and Houlihan Lokey Capital, Inc., for advising Group LLC in the transactions contemplated by this Agreement, and (ii) any costs, fees or other expenses incurred in connection with or relating to, in whole or in part, the transactions contemplated by this Agreement and (iii) payments made by the Contributed Companies relating to any transaction, stay or retention bonuses, change-of-control payments, severance payments, or other similar payments or obligations to any current or former employee or other service provider of any Contributed Company or any such Contributed Company’s subsidiaries as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby (including the employer portion of any payroll, social security, unemployment or similar Taxes imposed on such amounts).

“Transition Services Agreement” has the meaning set forth in Section 2.2(d)(iii).

“Valuation” has the meaning set forth in Section 1.5(a).

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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above written.

[Signature Page to Contribution Agreement] 

Exhibit 2.2

EXECUTION VERSION

CONTRIBUTION AGREEMENT

This Contribution Agreement (the “Agreement”), dated as of May 19, 2022 (the “Closing Date”), is made by and between Greenbacker Renewable Energy Company LLC, a Delaware limited liability company (“GREC LLC”) and Greenbacker Renewable Energy Corporation, a Maryland corporation (“GREC Corp”). Capitalized terms used in this Agreement and not otherwise defined herein shall have the meaning given to them in that certain Contribution Agreement by and between Greenbacker Group LLC, a Delaware limited liability company and GREC LLC entered into immediately prior to the execution of this Agreement (the “Initial Contribution Agreement”).

WHEREAS, on the date hereof and immediately prior to the execution of this Agreement, (i) Greenbacker Group LLC contributed all of the Contributed Interests, Contributed Assets, and Assumed Liabilities to GREC LLC, resulting in GREC LLC becoming the beneficial owner of the Contributed Interests and Contributed Assets (the “Initial Contribution”), and immediately thereafter (ii) the $250,000 of Class P-D common shares of GREC LLC, par value $0.001 per share, held by Greenbacker Capital Management LLC, were forfeited, retired, and cancelled;

WHEREAS, as of the date hereof and following the Initial Contribution effective immediately prior to the execution of this Agreement, pursuant to the terms of the Initial Contribution Agreement, GREC LLC is the beneficial owner of the (i) Contributed Interests, (ii) the Contributed Assets, and (iii) the Assumed Liabilities;

WHEREAS, subject to the terms and conditions set forth in this Agreement, GREC LLC desires to contribute the Contributed Interests and Contributed Assets to GREC Corp, and GREC Corp desires to accept the Contributed Interests and Contributed Assets, and assume certain of the Assumed Liabilities (the “GREC Assumed Liabilities”) from GREC LLC, and in consideration thereof, GREC Corp will issue shares of GREC Corp Common Stock (as defined below) to GREC LLC (the “Contribution”); and

WHEREAS, the Contribution is intended to be treated and shall be reported by the parties hereto for U.S. federal income tax purposes as a tax deferred contribution of property in exchange for the GREC Corp Common Stock (as defined below) under Section 351 of the Internal Revenue Code of 1986, as amended.

NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:

For purposes of this Agreement:

GREC LLC hereby represents and warrants as follows:

GREC Corp hereby represents and warrants as follows:

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.

[Signature Page to the Contribution Agreement] 

Exhibit 3.1

EXECUTION VERSION

GREENBACKER RENEWABLE ENERGY COMPANY LLC
a Delaware Limited Liability Company

FIFTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT

Table of Contents

THIS FIFTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT (this “Agreement”) of GREENBACKER RENEWABLE ENERGY COMPANY LLC (the “Company”) is made and entered into as of May 19, 2022 by GREENBACKER CAPITAL MANAGEMENT LLC, a Delaware limited liability company (“GCM”), and any other Persons who are or hereafter become Members in the Company or parties hereto as provided herein. Capitalized terms used in this Agreement without definition shall have the respective meanings specified in Section 2.2 and, unless otherwise specified, article and section references used herein refer to Articles and Section of this Agreement.

WHEREAS, the Company was formed on December 4, 2012, pursuant to, and in accordance with, the Act (as defined below) by the filing of a Certificate of Formation of the Company with the Secretary of State of the State of Delaware;

WHEREAS, the Members entered into the limited liability company operating agreement of the Company, dated December 11, 2012 (the “Original Agreement”);

WHEREAS, the Members entered into the amended and restated limited liability company operating agreement of the Company, dated August 7, 2013 (the “Amended Agreement”);

WHEREAS, the Members entered into the second amended and restated limited liability company operating agreement of the Company, dated October 9, 2013 (the “Second Amended Agreement”);

WHEREAS, the Members entered into the third amended and restated limited liability company operating agreement of the Company, dated June 27, 2014 (the “Third Amended Agreement”);

WHEREAS, the Members entered into the fourth amended and restated limited liability company operating agreement of the Company, dated August 27, 2020, as further amended and restated on November 17, 2020 (the “Fourth Amended Agreement”);

WHEREAS, pursuant to that certain designation of Class P-A Common Shares and Class P-I Common Shares, dated as of April 1, 2016, the Company designated certain new Classes of shares offered in a private placement pursuant to a private placement memoranda, which shares have identical rights, privileges, and obligations, including identical voting rights, with the Class I Shares;

WHEREAS, pursuant to that certain designation of Class P-D Common Shares, Class P-S Common Shares, and Class P-T Common Shares, dated as of November 17, 2020, the Company designated certain new Classes of shares offered in a private placement pursuant to a private placement memoranda, which shares have identical rights, privileges, and obligations, including identical voting rights, with the Class I Shares;

WHEREAS, GCM, the Company, and certain of their Affiliates desired to undertake an internalization of the management functions of GCM and certain other entities which provide investment advisory, administrative, and other services, pursuant to which, among other things, the membership interests in GCM and certain other entities, along with certain other assets and liabilities, were contributed by Greenbacker Group LLC to the Company, in exchange for Class P-I Shares of the Company, and immediately thereafter the Company contributed such membership interests and other assets and liabilities to Greenbacker Renewable Energy Corporation, a Maryland corporation (“GREC Corp”) in exchange for additional shares of common stock of GREC Corp (collectively, the “Internalization Transaction”);

WHEREAS, in connection with the Internalization Transaction, and effective immediately following the consummation of the Internalization Transaction, (i) GREC Advisors, LLC contributed to the Company, and the Company and GREC Advisors, LLC agreed to the cancellation and termination of, the Special Unit, which entitled it to the Performance Participation Fee (as defined in the Fourth Amended Agreement) and the Liquidation Performance Participation Fee (as defined in the Fourth Amended Agreement), and (ii) the Company issued a new Liquidation Performance Unit (as defined below) to GB Liquidation Performance Holder LLC, a Delaware limited liability company; and

WHEREAS, the Members wish to correct and/or supplement certain inconsistent provisions in the Fourth Amended Agreement and amend and restate the Fourth Amended Agreement in its entirety to reflect the foregoing by entering into this corrected Fifth Amended and Restated Limited Liability Company Agreement.

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

*               *               *

ARTICLE I

ORGANIZATION

Section 1.1      The Company has been organized as a Delaware limited liability company by filing its Certificate with the Secretary of State of the State of Delaware on December 4, 2012, pursuant to and in accordance with the Act.

ARTICLE II

NAME AND CERTAIN DEFINITIONS

Section 2.1      Name. The name of the Company is “Greenbacker Renewable Energy Company LLC”. The Board of Directors of the Company (the “Board of Directors”) may determine that the Company may use any other designation or name for the Company.

Section 2.2      Certain Definitions. As used in this Agreement, the terms set forth below shall have the following respective meanings:

“Acquisition Expenses” means expenses, including legal fees and expenses, travel and communication expenses, costs of appraisals, non-refundable option payments on assets not acquired, accounting fees and expenses, and miscellaneous expenses relating to the purchase or acquisition of assets, whether or not acquired.

“Acquisition Fee” means the total of all fees and commissions paid by any party to any party other than to the Company, in connection with the initial purchase or acquisition of assets by the Company. Included in the computation of such fees or commissions shall be any commission, selection fee, supervision fee, financing fee, non-recurring management fee or any fee of a similar nature, however designated.

“Act” means the Delaware Limited Liability Company Act, 6 Del. C. §§ 18-101 et. seq., as the same may be amended from time to time. All references herein to sections of the Act shall include any corresponding provisions of succeeding law.

“Actual Owner” is defined in Section 11.2(d).

“Adjusted Capital” means the Company NAV immediately prior to the time of a Liquidation or a Listing.

“Adjusted Capital Account” means, with respect to any Tax Member for any taxable year or other period, the balance, if any, in such Tax Member’s Capital Account as of the end of such year or other period, after giving effect to the following adjustments:

The foregoing definition of Adjusted Capital Account is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations to the extent relevant thereto and shall be interpreted consistently therewith.

“Adjusted Capital Account Deficit” means, with respect to any Tax Member for any taxable year or other period, the deficit Adjusted Capital Account balance, if any, of such Tax Member as of the end of such year or other period.

“Administration Agreement,” means the administration agreement, by and between the Company, GREC Corp, and the Company Administrator, as may be amended from time to time.

“Administrator” means the official or agency administering the securities laws of a state, province, or commonwealth.

“Advisor” means the Person or Persons, if any, appointed, employed or contracted with by the Company pursuant to Article XIV hereof and responsible for directing or performing the day-to-day business affairs of the Company, including any Person to whom the Advisor subcontracts substantially all of such functions.

“Affiliate” means (a) any Person directly or indirectly owning, controlling, or holding, with power to vote, 10% or more of the outstanding voting securities of such other Person, (b) any Person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held, with the power to vote, by such other Person, (c) any Person directly or indirectly controlling, controlled by, or under common control with such other Person, (d) any executive officer, director, trustee or general partner of such other person, or (e) any legal entity for which such Person acts as an executive officer, director, trustee or general partner.

“Affiliated Person” means the Sponsor, the Advisor, a Director or any Affiliate of the foregoing.

“Affiliated Program” means the Programs of the Sponsor, the Advisors, a Director or any Affiliate of the foregoing.

“Agreement” is defined in the preamble.

“Assessment” means additional amounts of capital which may be required of, or paid voluntarily by, a Member beyond his or her subscription commitment excluding deferred payments.

“Assignee” means any Person to whom any Shares have been Assigned, in whole or in part, in a manner permitted by Section 10.2 of this Agreement.

“Assigning Member” means any Member that has or will Assign its Shares.

“Assignment” means, with respect to any Shares, the offer, sale, assignment, transfer, gift or other disposition of, such Share, whether voluntarily or by operation of law, except that in the case of a bona fide pledge or other hypothecation, no Assignment shall be deemed to have occurred unless and until the secured party has exercised his right of foreclosure with respect thereto; and the terms “Assign,” “Assigned,” and “Assigning” have a correlative meaning.

“Associate” has the meaning ascribed to such term in Rule 12b-2 of the rules promulgated under the Exchange Act.

“Benefit Plan Investor” means a Member who is subject to ERISA or to the prohibited transaction provisions of Section 4975 of the Code.

“Board of Directors” is defined in Section 2.1.

“Book Value” means, with respect to any Company property, the Company’s adjusted basis for federal income tax purposes, adjusted from time to time to reflect the adjustments required or permitted by Treasury Regulation Section 1.704-l(b)(2)(iv)(d)-(g).

“Business Combination” means:

provided, however, that a transaction is not a Business Combination if the transaction resulting in the holder of Shares becoming an Interested Member is approved by the Board of Directors prior to the time such Person became an Interested Member.

“Business Day” shall mean any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions in New York City are authorized or required by law, regulation or executive order to close.

“Capital Account” is defined in Section 8.2.

“Capital Contributions” means the total investment, including the original investment and amounts reinvested pursuant to the Reinvestment Plan, by a Member or by all Members, as the case may be.

“Cash Available for Distribution” means Cash Flow plus cash funds available for distribution from the Company reserves less amounts set aside for restoration or creation of reserves.

“Cash Flow” means cash funds provided from operations, without deduction for depreciation, but after deducting cash funds used to pay all other expenses, debt payments, capital improvements and replacements. Cash withdrawn from reserves shall not be included in Cash Flow.

“Certificate” means the Certificate of Formation of the Company and any and all amendments thereto and restatements thereof filed on behalf of the Company with the office of the Secretary of State of the State of Delaware pursuant to the Act.

“Class” means any of Class A, Class C, Class I Shares or any other class of Shares that the Board of Directors may authorize from time to time pursuant to this Agreement.

“Class A Shares” is defined in Section 7.1.

“Class C Shares” is defined in Section 7.1.

“Class I Shares” is defined in Section 7.1.

“Class P-I Share Value” means the product of (a) a Percentage Interest of one Class P-I Share, (b) the number of shares of common stock of GREC Corp (or its successor) held by the Company and (c) the GREC 30 Day Share Value.

“Code” means the Internal Revenue Code of 1986, as amended, or any successor statute.

“Commencement of the Initial Public Offering” means the date that the Securities and Exchange Commission declares effective the registration statement filed under the Securities Act for the Initial Public Offering.

“Common Shares” means any Shares that are not Preferred Shares.

“Company” is defined in the preamble.

“Company Administrator” means Greenbacker Administration, LLC, the administrator pursuant to the Administration Agreement.

“Company Minimum Gain” means “partnership minimum gain” as defined in the Treasury Regulations Section 1.704-2(b)(2) and as computed in accordance with the Treasury Regulations Section 1.704-2(d).

“Company NAV” means the net fair market value of all of the Company’s assets, including investments in bank accounts, money market funds or other current assets, as determined by the Board of Directors from time to time pursuant to this Agreement.

“Consent” means either (a) consent given by vote at a meeting called and held in accordance with the provisions of Article XII of this Agreement or (b) the written consent without a meeting, as the case may be, of any Person to do the act or thing for which the consent is solicited, or the act of granting such consent, as the context may require.

“Continuing Director” means (a) any Director of the Company who (i) is neither the Interested Member involved in the Business Combination as to which a determination of Continuing Directors is provided hereunder, nor an Affiliate, Associate, employee, agent or nominee of such Interested Member, or a relative of any of the foregoing, and (ii) was a member of the Board of Directors prior to the time that such Interested Member became an Interested Member, or (b) any successor of a Continuing Director described in clause (a) above who is recommended or elected to succeed a Continuing Director by the affirmative vote of a majority of Continuing Directors then on the Board of Directors. “Dealer Manager” means SC Distributors, LLC, an Affiliate of the Advisor, or such other Person or entity selected by the Board of Directors to act as the dealer manager for the offering of the Shares. SC Distributors, LLC is a member of the Financial Industry Regulatory Authority.

“DGCL” means Delaware General Corporation Law.

“Director” is defined in Section 5.2(a).

“Distribution Fee” is defined in Section 7.1(b).

“Distributions” means any distributions of money or other property by the Company to owners of Shares or the Liquidation Performance Unit, including distributions of Cash Available for Distribution, distributions of cash from capital events and distributions that may constitute a return of capital for federal income tax purposes.

“Economic Interest” means a Person’s right to share in the income, gains, losses, deductions, credits, or similar items of the Company, and to receive Distributions from the Company, but excluding any other rights of a Member, including the right to vote or to participate in management, or, except as may be provided in the Act, any right to information concerning the business and affairs of the Company.

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

“Escrow Account” means an interest-bearing account established and maintained by the Advisor with the Escrow Agent, in accordance with the terms of the Escrow Agreement, for the purpose of holding, pending the distribution thereof in accordance with the terms of this Agreement, any subscription received from subscribers, including Persons who are to be admitted as Members as a result of the closing of the Initial Public Offering.

“Escrow Agent” UMB Bank, N.A., or another United States banking institution with at least $50,000,000 in assets, which shall be selected by the Advisor to serve in such capacity pursuant to the Escrow Agreement.

“Escrow Agreement” means that certain Escrow Agreement between the Company, the Advisor, the Dealer Manager and the Escrow Agent, substantially in the form thereof filed as an exhibit to the Registration Statement, as amended and supplemented from time to time as permitted by the terms thereof.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any successor statute thereto.

“Front End Fees” means all fees and expenses paid by any party for any services rendered to organize the Company and to acquire assets for the Company, including Organization and Offering Expenses, Acquisition Fees, Acquisition Expenses, and any other similar fees, however designated by the Advisor or the Sponsor.

“GCM” is defined in the preamble.

“GREC 30 Day Share Value” means the average closing price per share of common stock of GREC Corp (or its successor) over the 30-trading-day period following an Initial Public Offering involving GREC Corp (or its successor).

“GREC Corp” is defined in the recitals.

“Gross Proceeds” means the aggregate purchase price of all Shares sold for the account of the Company, without deduction for Selling Commissions, volume discounts, any marketing support and due diligence expense reimbursement, fees paid to the Dealer Manager or other Organization and Offering Expenses. For the purposes of computing Gross Proceeds, the purchase price of any Share for which reduced Selling Commissions are paid to the Dealer Manager or a Soliciting Dealer (where net proceeds to the Company are not reduced) shall be deemed to be the full amount of the offering price per Share pursuant to the prospectus for such Offering without reduction.

“Indemnitee” is defined in Section 17.2(f).

“Independent Director” means a Director who is “independent” as such term is defined in NASDAQ Listing Rule 5605(a)(2).

“Independent Expert” means a Person with no material current or prior business or personal relationship with the Advisor or the Sponsor who is engaged to a substantial extent in the business of rendering opinions regarding the value of assets of the type held by the Company, and who is qualified to perform such work.

“Initial Public Offering” means the first Offering (or, in the case of GREC Corp (or its successor), the first offer and sale of shares of common stock of GREC Corp (or its successor)) pursuant to an effective registration statement filed under the Securities Act.

“Interested Member” means any Person (other than the Company or any Subsidiary of the Company, any employee benefit plan maintained by the Company or any Subsidiary thereof or any trustee or fiduciary with respect to any such plan when acting in such capacity) that:

“Internalization Transaction” is defined in the recitals.

“Investment in Company Assets” means the amount of Capital Contributions actually paid or allocated to the origination or purchase of assets by the Company (including working capital reserves allocable thereto, except that working capital reserves in excess of 3% shall not be included) and other cash payments such as interest and taxes, but excluding Front End Fees.

“Joint Ventures” means those joint venture or partnership arrangements in which the Company or any of its Subsidiaries is a co-venturer or general partner in an entity established to acquire or hold assets.

“Liquidation” means, the liquidation, dissolution, or winding-up of the Company pursuant to Article XX.

“Liquidation Performance Participation Distribution” is defined in Section 9.2.

“Liquidation Performance Unit” means a profits interest in the Company issued pursuant to Section 7.4, the holder of which is entitled to the Liquidation Performance Participation Distribution.

“Liquidation Performance Unitholder” means, the Record Holder of the Liquidation Performance Unit, which as of the date of this Agreement shall be GB Liquidation Performance Holder LLC.

“Listing” means the listing of the Shares on a national securities exchange, an Initial Public Offering of shares of common stock of GREC Corp (or its successor), or a transaction in which Members receive shares of an entity that is listed on a national securities exchange. Upon such Listing, such Shares, shares of common stock of GREC Corp (or its successor) or shares of such listed entity, as applicable, shall be deemed Listed.

“Listing Premium” means the amount, if any, by which the Listing Value following a Listing exceeds the Adjusted Capital, as calculated immediately prior to such Listing.

“Listing Value” means the product of (a) the number of Listed Shares and (b) the average closing price per Share over the 30-trading-day period following such Listing, plus (c) the amount of such consideration, if any, actually received by Members in connection with any transaction that results in a Listing. Listing Value shall not include the value of any non-Listed securities received by Members as full or partial consideration in connection with any transaction or series of transactions that result in a Listing. However, in the case of an Initial Public Offering involving GREC Corp (or its successor), “Listing Value” shall mean the sum of (A) the product of (1) the number of shares of common stock of GREC Corp (or its successor) held by the Company as of the 30^th trading day following such Initial Public Offering and (2) the GREC 30 Day Share Value and (B) the amount of such consideration, if any, received by Members in connection with any transaction that results in an Initial Public Offering involving GREC Corp (or its successor).

“Loss” for any period means all items of Company loss, deduction and expense for such period determined according to Section 8.3.

“Majority of the Members” means Members holding more than 50% of the total outstanding Percentage Interests of the Company as of a particular date (or if no date is specified, the first day of the then current calendar month).

“Members” means the holders of record of Shares.

“Membership Interest” means a Member’s rights in one or more Shares at any particular time, including the Member’s Economic Interest in the Company, any right to vote or participate in management of the Company and any right to information concerning the business and affairs of the Company provided by this Agreement or the Act.

“Membership List” means a list, in alphabetical order by name, setting forth the name, address and business or home telephone number of, and number of Shares held by, each Member, which list shall be printed on white paper in a readily readable type size (in no event smaller than 10-point type) and shall be updated at least quarterly to reflect any changes in the information contained therein.

“Minimum Offering” means the receipt and acceptance by the Directors of subscriptions for Shares aggregating at least $2,000,000 in Offering proceeds.

“Minimum Offering Expiration Date” means the one-year anniversary of the date of the Prospectus.

“NASAA Omnibus Guidelines” means the NASAA Omnibus Guidelines adopted by the North American Securities Administrators Association, Inc., on March 29, 1992, as amended on May 7, 2007.

“NAV” means, for any Shares, the net asset value of such Shares, determined as of the last Business Day of each quarter, in accordance with the Company’s valuation policies and procedures.

“Net Worth” means the excess of total assets over total liabilities as determined by generally accepted accounting principles.

“Non-Compliant Tender Offer” is defined in Section 12.21.

“Nonrecourse Deductions” has the meaning ascribed to such term in the Treasury Regulations Section 1.704- 2(b)(1). The amount of Nonrecourse Deductions for a given period equals the excess, if any, of the net increase, if any, in the amount of Company Minimum Gain during such period, over the aggregate amount of any distributions during such period of proceeds of a Nonrecourse Liability that are allocable to an increase in Company Minimum Gain, determined according to the provisions of the Treasury Regulations Section 1.704-2(c).

“Nonrecourse Liability” has the meaning ascribed to such term in the Treasury Regulations Section 1.704-2(b)(3).

“Offering” means any offering and sale of Shares, including pursuant to the Reinvestment Plan.

“Organization and Offering Expenses” means all costs and expenses incurred by and to be paid by the Company in connection with the formation of the Company and the qualification and registration of an Offering, including total underwriting compensation, legal, accounting, printing, mailing and filing fees, charges of the escrow holder and transfer agent, charges of the Advisor for administrative services related to the issuance of Shares in the Offering, reimbursement of bona fide due diligence expenses of broker-dealers, reimbursement of the Advisor for costs in connection with preparing sales materials and the expenses of qualification and sale of the Shares under federal and state laws.

“Owner” has the meaning ascribed to the term “beneficial owner” as defined in Rule 13d-3 of the Rules and Regulations promulgated under the Exchange Act.

“Percentage Interest” means, unless specifically provided otherwise, the percentage ownership interest of any Member determined at any time by dividing a Member’s current Shares by the total outstanding Shares of all Members. If specifically provided otherwise, the determination of a member’s Percentage Interest may be made on a Class-by-Class basis by dividing a Member’s current Shares by the total outstanding Shares in a given Class of all Members in that Class. For the avoidance of doubt, the Percentage Interest referred to in Section 9.1(b) shall be made on a Class-by-Class basis.

“Permitted Assignee” means with respect to Class P-I Shares newly issued upon conversion of the Liquidation Performance Unit: (i) the Company, (ii) with respect to any Member that is an entity (other than a trust or other estate planning vehicle described in clause (iii) below), any Affiliate, shareholder, member or partner of such Member, and (iii) with respect to any Member who is a natural Person or the Permitted Assignee of a natural person, (a) such natural Person’s spouse or any lineal ancestor or descendant (including by adoption), (b) any trust of which such natural Person is the trustee or settler or donor and which is established solely for the benefit of any of the foregoing individuals, and (c) any partnership or limited liability company, whose partners or members consist solely of one or more Persons identified in the foregoing clause (iii)(a).

“Person” means any natural person, partnership, corporation, association, trust or other legal entity.

“Preferred Shares” is defined in Section 7.2.

“Profit” for any period means all items of Company income and gain for such period determined according to Section 8.3.

“Program” means a limited or general partnership, joint venture, unincorporated association or similar organization other than a corporation formed and operated for the primary purpose of investment in and the operation of or gain from and interest in the assets to be acquired by such entity.

“Prospectus” means the same as that term is defined in Section 2(a)(10) of the Securities Act, including a preliminary prospectus or, in the case of an intrastate offering, any document by whatever name known, utilized for the purpose of offering and selling Securities to the public.

“Record Date” means the date established by the Board of Directors for determining (a) the identity of the Record Holders entitled to notice of, or to vote at, any meeting of Members or entitled to exercise rights in respect of any lawful action of Members or (b) the identity of Record Holders entitled to receive any report or distribution or to participate in any offer.

“Record Date Request Notice” is defined in Section 12.2(b).

“Record Holder” means (a) with respect to any Common Shares, the Person in whose name such Shares are registered on the Membership List as of the opening of business on a particular Business Day, and (b) with respect to any Shares of any other Class, the Person in whose name such Shares are registered on the Membership List that the Company has caused to be kept as of the opening of business on such Business Day.

“Registration Statement” means the registration statement for the Shares on a proper form filed with the Commission under the Securities Act which registration statement was declared effective by the Commission.

“Regulatory Allocations” is defined in Section 9.4.

“Reinvestment Plan” is defined in Section 7.15.

“Request Record Date” is defined in Section 12.2(b).

“Roll-Up Entity” means a partnership, corporation, trust or similar entity that would be created or would survive after the successful completion of a proposed Roll-Up Transaction.

“Roll-Up Transaction” means a transaction involving the acquisition, merger, conversion, or consolidation, directly or indirectly, of the Company and the issuance of securities of a Roll-Up Entity. Such term does not include: (a) a transaction involving securities of the Company that have been listed on a national securities exchange or that are traded through the National Association of Securities Dealers Automated Quotation for at least 12 months, or (b) a transaction involving the conversion to a corporation, partnership, trust, or association form of only the Company if, as a consequence of the transaction, there will be no significant adverse change in the voting rights of the holders of the Shares, the term of existence of the Company, compensation to the Advisor or Sponsor or the investment objectives of the Company.

“Sale” means the sale, exchange, involuntary conversion, foreclosure, condemnation, taking, casualty (other than a casualty followed by refurbishing or replacement), or other disposition of any of the Company’s assets.

“Securities” means Shares, stock, units, membership interests or other evidences of equity or beneficial or other interests, voting trust certificates, bonds, debentures, notes or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, stock or participations in, temporary or interim certificates for, receipts for, guarantees of, or warrants, options or rights to subscribe to, purchase or acquire, any of the foregoing.

“Securities Act” means the Securities Act of 1933, as amended.

“Selling Commissions” means any and all commissions payable to underwriters, dealer managers or other Soliciting Dealers in connection with the sale of Shares, including commissions payable to the Dealer Manager.

“Share Designation” is defined in Section 7.3.

“Share Repurchase Program” means, a program adopted by the Board of Directors, if any, pursuant to which the Company may conduct Share repurchases.

“Shares” is defined in Section 7.1. Shares may be Common Shares or Preferred Shares, and may be issued in different Classes or series.

“Soliciting Dealers” means those broker-dealers that are members of the Financial Industry Regulatory Authority or that are exempt from broker-dealer registration, and that, in either case, enter into participating broker or other selling agreements with the Dealer Manager to sell Shares.

“Special Meeting Percentage” is defined in Section 12.2(b).

“Special Meeting Request” is defined in Section 12.2(b).

“Sponsor” means any Person directly or indirectly instrumental in organizing, wholly or in part, the Company or any Person who will control, manage or participate in the management of the Company, and any Affiliate of such Person. Sponsor does not include wholly independent third parties, including attorneys, sub-advisors, accountants and underwriters whose only compensation is for professional services. A Person may also be deemed a Sponsor of the Company by:

“Subscription Agreement” means the document that a Person who buys Shares of the Company must execute and deliver with full payment for the Shares and which, among other provisions, contains the written consent of each Member to the adoption of this Agreement.

“Subsidiary” means, with respect to any Person, any corporation, company, joint venture, limited liability company, association or other Person in which such Person owns, directly or indirectly, more than 50% of the outstanding equity securities or interests, the holders of which are generally entitled to vote for the election of the Board of Directors or other governing body of such Person.

“Substitute Member” means any Assignee of Shares who is admitted to the Company as a Member pursuant to Section 10.3 of this Agreement.

“Tax Matters Partner” is defined in Section 9.9(a).

“Tax Member” is defined in Section 8.2.

“Tax Member Nonrecourse Debt” means “partner nonrecourse debt” as defined in the Treasury Regulations Section 1.704-2(b)(4).

“Tax Member Nonrecourse Debt Minimum Gain” means an amount, with respect to each Tax Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Tax Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with the Treasury Regulations Section 1.704-2(i)(3).

“Tax Member Nonrecourse Deductions” means “partnership nonrecourse deductions” as defined in Treasury Regulations Section 1.704-2(i)(1) and as computed in accordance with the Treasury Regulations Section 1.704-2(i)(2).

For any taxable year or other period, the amount of Tax Member Nonrecourse Deductions with respect to a Tax Member Nonrecourse Debt equals the excess, if any, of the net increase, if any, in the amount of the Tax Member Nonrecourse Debt Minimum Gain attributable to such Tax Member Nonrecourse Debt over the aggregate amount of any distributions during such year to the Member that bears the economic risk of loss for such Tax Member Nonrecourse Debt to the extent such distributions are from proceeds of such Tax Member Nonrecourse Debt and are allocable to an increase in Tax Member Nonrecourse Debt Minimum Gain, determined according to the provisions of the Treasury Regulations Section 1.704-2(i)(2).

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

ARTICLE III

POWERS AND PURPOSE

Section 3.1      Purpose. The purposes and powers of the Company shall be to engage in any lawful business or activity that may be engaged in by a limited liability company formed under the Act, as such businesses or other activities may be determined by the Board of Directors from time to time.

Section 3.2      No State Law Partnership. The Company is a Delaware limited liability company that will be treated as a partnership only for federal income tax purposes, and if applicable, state tax purposes, and no Member shall be deemed to be a partner or joint venturer of any other Member, for any purposes other than federal income tax purposes and, if applicable, state tax purposes, and this Agreement shall not be construed to suggest otherwise. The Members intend that the Company shall be treated as a partnership for federal and, if applicable, state income tax purposes, and each Member and the Company shall file all tax returns and shall otherwise take all tax and financial reporting positions in a manner consistent with such treatment.

Section 3.3      Authority.

(a)          By executing the Subscription Agreement and subscribing for Shares, each Member hereby agrees to be bound by the terms of this Agreement and any amendments or supplements thereto or cancellations thereof and authorizes and appoints with full power of substitution as its, his or her true and lawful agent and attorney-in-fact, with full power and authority in its, his or her name, place and stead, the Advisor and the Company, and each of their authorized officers and attorneys-in-fact, as the case may be, to execute, swear to, acknowledge, deliver, file and record in the appropriate public offices, as may be required or advisable under the laws of the State of Delaware or any other applicable jurisdiction:

(i)       any and all certificates, instruments, agreements or other documents, whether related to this Agreement or otherwise, and any amendment of any thereof (including amendments reflecting the addition of any Person as a Member or any admission or substitution of other Members or the Capital Contribution made by any such Person or by any Member) and any other document, certificate or instrument required to be executed and delivered, at any time, in order to reflect the admission of any Member (including any Substitute Member);

(ii)       any other document, certificate or instrument required to reflect any action of the Members duly taken in the manner provided for in this Agreement, whether or not such Member voted in favor of or otherwise consented to such action;

(iii)       any other document, certificate or instrument that may be required by any regulatory body or other agency or the applicable laws of the United States, any state or any other jurisdiction in which the Company is doing or intends to do business or that the Board of Directors or GCM deems necessary or advisable;

(iv)       any certificate of dissolution or cancellation of the Certificate that may be reasonably necessary to effect the termination of the Company; and

(v)       any instrument or papers required to terminate the business of the Company pursuant to Article XX hereof; provided, however, that no such attorney-in-fact shall take any action as attorney-in- fact for any Member if such action could in any way increase the liability of such Member beyond the liability expressly set forth in this Agreement or alter the rights of such Member under Article XII, unless (in either case) such Member has given a power of attorney to such attorney-in-fact expressly for such purpose

(vi)       all ballots, consents, approvals, waivers, certificates, documents and other instruments that the Board of Directors determines to be necessary or appropriate to (A) make, evidence, give, confirm or ratify any vote, consent, approval, agreement or other action that is made or given by the Members hereunder or is consistent with the terms of this Agreement or (B) effectuate the terms or intent of this Agreement; provided, that when required by Article XII or any other provision of this Agreement that establishes a percentage of the Members or of the Members holding any Class or series of Shares required to take any action, the Advisor and the Company, and each of their authorized officers and attorneys-in-fact, as the case may be, may exercise the power of attorney made in this Section 3.3 only after the necessary vote, consent, approval, agreement or other action of the Members or of the Members holding such Class or series of Shares, as applicable.

(b)        Nothing contained in this Section 3.3 shall be construed as authorizing the Advisor and the Company, or each of their authorized officers or attorneys-in-fact, as the case may be, to amend, change or modify this Agreement except in accordance with Article XVIII or as may be otherwise expressly provided for in this Agreement.

(c)        The foregoing power of attorney is hereby declared to be irrevocable and a power coupled with an interest, and it shall survive and, to the maximum extent permitted by law, not be affected by the subsequent death, incompetency, disability, incapacity, dissolution, bankruptcy or termination of any Member and the transfer of all or any portion of such Member’s Shares and shall extend to such Member’s heirs, successors, assigns and personal representatives. Each such Member hereby agrees to be bound by any representation made by the Advisor or the Company, and each of their authorized officers or attorneys-in- fact, as the case may be, acting in good faith pursuant to such power of attorney; and each such Member, to the maximum extent permitted by law, hereby waives any and all defenses that may be available to contest, negate or disaffirm the action of the Advisor or the Company, and each of their authorized officers or attorneys-in-fact, as the case may be, taken in good faith under such power of attorney in accordance with this Section 3.3.

(d)       Each Member hereby agrees to execute and deliver to the Directors within 5 days after receipt of the Directors’ written request therefore, such other and further statements of interest and holdings, designations, and further statements of interest and holdings, designations, powers of attorney and other instruments that the Directors deem necessary to comply with any laws, rules or regulations relating to the Company’s activities.

ARTICLE IV

RESIDENT AGENT AND PRINCIPAL OFFICE

Section 4.1      The address of the registered agent of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The name of the Company’s registered agent is Corporation Service Company or any successor registered agent for service of process as shall be appointed by the Board of Directors in accordance with the Act. The Company’s registered agent, Corporation Service Company, is a Delaware corporation. The address of the principal office of the Company is 230 Park Avenue, Suite 1560, New York, NY 10169. The Company may have such other offices or places of business as the Board of Directors may from time to time determine.

ARTICLE V

BOARD OF DIRECTORS

Section 5.1      Powers.

(a)       Except as otherwise expressly provided in this Agreement, the Board of Directors shall have complete and exclusive discretion to manage the business and affairs of the Company and is authorized to and shall have all powers and rights necessary, appropriate or advisable to effectuate and carry out the purposes, investment policies and business of the Company. No Member, by reason of its status as such, shall have any authority to act for or bind the Company but shall have only the right to vote on or approve the actions specified herein to be voted on or approved by the Members or, to the extent not inconsistent with this Agreement, in the Act. At any time that there is only one Member, any and all action provided for herein to be taken or approved by the Members shall be taken or approved by the sole Member.

(b)       The Company shall have such officers as are provided for in Article VI. The Board of Directors may appoint, employ, or otherwise contract with such other persons or entities for the transaction of the business of the Company or the performance of services for or on behalf of the Company as it shall determine in its sole discretion. The Board of Directors may delegate to the Advisor, any officer of the Company or the Advisor, or to any such other person or entity such authority to act on behalf of the Company as the Board of Directors may from time to time deem appropriate in its sole discretion.

(c)       Except as otherwise provided by the Board of Directors, when the taking of such action has been authorized by the Board of Directors, any Director or officer of the Company or the Advisor, or any other person specifically authorized by the Board of Directors, may execute any contract or other agreement or document on behalf of the Company and may execute on behalf of the Company and file with the Secretary of State of the State of Delaware any certificates or filings provided for in the Act.

Section 5.2      Number and Classification.

(a)       The Board of Directors has 7 members (the “Directors”). The number of Directors may be increased or decreased from time to time by the Board of Directors provided, however, that the total number of Directors shall never be fewer than 3 nor more than 11, provided, further however, that, subject to Section 5.2(d), at all times there shall be one more Independent Director than non-Independent Directors.

(b)       The names and addresses of the Directors who shall serve on the Board of Directors are set forth in the books and records of the Company.

(c)       The Directors may increase the number of Directors and fill any vacancy, whether resulting from an increase in the number of Directors or otherwise, on the Board of Directors. Any and all vacancies on the Board of Directors may be filled by the affirmative vote of a majority of the remaining Directors in office, even if the remaining Directors do not constitute a quorum. Notwithstanding the foregoing sentence, the Independent Directors who remain on the Board of Directors shall nominate replacements for vacancies among the Independent Directors’ positions.

(d)       Upon the Commencement of the Initial Public Offering, a majority of the Board of Directors will be Independent Directors except for a period of 60 days after the death, removal or resignation of an Independent Director. Any vacancies will be filled by the affirmative vote of a majority of the remaining Directors, though less than a quorum. No reduction in the number of Directors shall cause the removal of any Director from office prior to the expiration of his term.

Section 5.3      Committees. The Directors may establish such committees as they deem appropriate, and may delegate to such committees such powers as the Directors deem appropriate, in their discretion, except as prohibited by the Act; provided that at least a majority of the members of the audit committee are Independent Directors. The responsibilities and duties of the committees shall be set forth in the respective charters for such committees.

Section 5.4      Fiduciary Obligations. The Directors serve in a fiduciary capacity to the Company and have a fiduciary duty to the Members, including a specific fiduciary duty to supervise the relationship of the Company with the Advisor. The Directors shall have a fiduciary responsibility for the safekeeping and use of all funds and assets of the Company and shall not employ or permit another to employ such funds or assets in any manner except for the exclusive benefit of the Company. The Directors shall not contract away the fiduciary obligations owned to the Members under common law.

Section 5.5      Resignation or Removal.

(a)       Any Director may resign by written notice to the Board of Directors, effective upon execution and delivery to the Company of such written notice or upon any future date specified in the notice.

(b)       Any Director, or the entire Board of Directors, may be removed from office at any time, with or without cause, by the affirmative vote of a majority of the votes entitled to be cast at a meeting called, pursuant to Article XII, for the purpose of the proposed removal (excluding any Shares or Percentage Interest of any affiliated Director being removed) without the necessity for concurrence by the Directors.

Section 5.6      Approval by Independent Directors. A majority of Independent Directors must approve all applicable matters as specified in this Agreement.

Section 5.7      Certain Determinations by Board of Directors. The determination as to any of the following matters, made in good faith by or pursuant to the direction of the Board of Directors consistent with this Agreement, shall be final and conclusive and shall be binding upon the Company and every holder of Shares: the amount of the net income for any period and the amount of assets at any time legally available for the payment of distributions or redemption of Shares, the amount of net assets, annual or other Cash Flow, funds from operations or net profit; the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and the propriety thereof (whether or not any obligation or liability for which such reserves or charges shall have been created shall have been paid or discharged); any interpretation of the terms, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to distributions, qualifications or terms or conditions of redemption of any Class or series of Shares; the fair value, or any sale, bid or asked price to be applied in determining the fair value, of any asset owned or held by the Company or any Shares; the number of Shares of any Class of the Company; any matter relating to the acquisition, holding and disposition of any assets by the Company; or any other matter relating to the business and affairs of the Company or required or permitted by applicable law, this Agreement or otherwise to be determined by the Board of Directors; provided, however, that any determination by the Board of Directors as to any of the preceding matters shall not render invalid or improper any action taken or omitted prior to such determination and no Director shall be liable for making or failing to make such a determination.

Section 5.8      Place of Meetings and Meetings by Telephone. All meetings of the Directors may be held at any place that has been designated from time to time by resolution of the Directors. In the absence of such a designation, regular meetings shall be held at the principal place of business of the Company. Any meeting, regular or special, may be held by conference telephone or similar communication equipment so long as all Directors participating in the meeting can hear one another, and all Directors participating by telephone or similar communication equipment shall be deemed to be present in person at the meeting.

Section 5.9      Regular Meetings. Regular meetings of the Directors shall be held at such times and at such places as shall be fixed by the Directors. Such regular meetings may be held without notice.

Section 5.10    Special Meetings. Special meetings of the Directors for any purpose or purposes may be called at any time by any Director or by the Chief Executive Officer or the President. Notice of the time and place of a special meeting shall be delivered personally or by telephone to each Director and sent by first-class mail, by facsimile or electronic mail (or similar electronic means) or by nationally recognized overnight courier, charges prepaid, addressed to each Director at that Director’s address as it is shown on the records of the Company. In case the notice is mailed, it shall be deposited in the United States mail at least 5 calendar days before the time of the holding of the meeting. In case notice is delivered by overnight courier, it shall be given at least 2 calendar days before the time of the holding of the meeting. In case the notice is delivered personally or by telephone or by facsimile or electronic mail (or similar electronic means), it shall be given at least 1 calendar day before the time of the holding of the meeting. Any oral notice given personally or by telephone may be communicated either to the Directors or to a person at the office of the Directors who the person giving the notice has reason to believe will promptly communicate it to the Director. The notice need not specify the purpose of the meeting.

Section 5.11      Quorum. A majority of the authorized number of Directors shall constitute a quorum for the transaction of business, except to adjourn as provided in Section 5.13. Every act or decision done or made by the affirmative vote of a majority of the Directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Directors, except to the extent that the vote of a higher number of Directors is required by this Agreement or applicable law.

Section 5.12      Waiver of Notice. Notice of any meeting need not be given to any Director who either before or after the meeting signs a written waiver of notice, a consent to holding the meeting, or an approval of the minutes. The waiver of notice or consent need not specify the purpose of the meeting. All such waivers, consents, and approvals shall be filed with the records of the Company or made a part of the minutes of the meeting. Notice of a meeting shall also be deemed given to any Director who attends the meeting without protesting before or at its commencement the lack of notice to that Director.

Section 5.13      Adjournment. A majority of the Directors present, whether or not constituting a quorum, may adjourn any meeting to another time and place. Notice of the time and place of holding an adjourned meeting need not be given unless the meeting is adjourned for more than 48 hours, in which case notice of the time and place shall be given before the time of the adjourned meeting.

Section 5.14      Action Without a Meeting. Any action to be taken by the Directors at a meeting may be taken without such meeting by the written Consent of a majority of the Directors then in office (or such higher number of Directors as is required to authorize or take such action under the terms of this Agreement or applicable law). Any such written Consent may be executed and given by facsimile, electronic mail or similar electronic means. Such written Consents shall be filed with the minutes of the proceedings of the Directors. If any action is so taken by the Directors by the written Consent of less than all of the Directors, prompt notice of the taking of such action shall be furnished to each Director who did not execute such written Consent, provided that the effectiveness of such action shall not be impaired by any delay or failure to furnish such notice.

ARTICLE VI

OFFICERS

Section 6.1      Officers. The officers of the Company shall be a Chief Executive Officer, a President, and a Chief Financial Officer. The Company may also have, at the discretion of the Directors, such other officers as may be appointed in accordance with the provisions of Section 6.3. Any number of offices may be held by the same person. Each of the officers of the Company may but need not be a Director. The descriptions of the duties and responsibilities of the officers of the Company are set forth in Schedule A, which may be amended from time to time at the discretion of the Directors.

Section 6.2      Election of Officers. The officers of the Company, except such officers as may be appointed in accordance with the provisions of Section 6.3 or Section 6.5, shall be chosen by the Directors, and each shall serve at the pleasure of the Directors.

Section 6.3      Subordinate Officers. The Directors may appoint and may empower the Chief Executive Officer, or any other officer, to appoint such other officers as the business of the Company may require, each of whom shall hold office for such period, have such authority and perform such duties as are provided in this Agreement or as the Directors (or, to the extent the power to prescribe authorities and duties of subordinate officers is delegated to him or her, the Chief Executive Officer, or such other officer) may from time to time determine.

Section 6.4      Removal and Resignation of Officers. Any officer may be removed, with or without cause, by the Directors at any regular or special meeting of the Directors or by such officer, if any, upon whom such power of removal may be conferred by the Directors. Any officer may resign at any time by giving written notice to the Company. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice; and unless otherwise specified in notice of a resignation, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Company under any contract to which the officer is a party.

Section 6.5      Vacancies in Offices. A vacancy in any office because of death, resignation, removal, disqualification or other cause shall be filled in the manner prescribed in this Agreement for regular appointment to that office. The Chief Executive Officer may make temporary appointments to a vacant office pending action by the Directors.

ARTICLE VII

CAPITAL CONTRIBUTIONS; COMMON SHARES; PREFERRED SHARES; Liquidation Performance UNIT

Section 7.1      Shares. A Member’s Membership Interest in the Company, including such Member’s right to receive Distributions from the Company, shall be represented by the “Share” or “Shares” held by such Member. Initially, there shall be three Classes of Common Shares: (i) Class A Shares (“Class A Shares”), (ii) Class C Shares (“Class C Shares”), and (iii) Class I Shares (“Class I Shares”), and such Classes shall have the following commissions and fees relating to them:

(a)       Each Class A Share issued in the primary Offering shall be subject to a sales commission of up to 7.00% per Share and a Dealer Manager fee of up to 2.75% per Share, which underwriting compensation is subject to change in subsequent Offerings. No sales commissions or Dealer Manager fees shall be paid with respect to any Class A Shares issued pursuant to the Reinvestment Plan.

(b)       Each Class C Share issued in the primary Offering shall be subject to a sales commission of up to 3.00% per Share and a Dealer Manager fee of up to 2.75% per Share, which underwriting compensation is subject to change in subsequent Offerings. In addition, with respect to Class C Shares, the Company shall pay the Dealer Manager on a monthly basis a distribution fee (“Distribution Fee”) that accrues daily equal to 1/365th of 0.80% of the amount of the net asset value for the Class C Shares for such day on a continuous basis from year to year. No sales commissions or Dealer Manager fee shall be paid with respect to any Class C Shares issued pursuant to the Reinvestment Plan.

(c)       Each Class I Share issued in the primary Offering shall be subject to a Dealer Manager fee of up to 1.75% per Share, which underwriting compensation is subject to change in subsequent Offerings. No Dealer Manager fees shall be paid with respect to any Class I Shares issued pursuant to the Reinvestment Plan.

Section 7.2      Authorized Common Shares, Preferred Shares, and Liquidation Performance Unit. The Company is initially authorized to issue up to 400,000,000 Shares, of which 350,000,000 Common Shares are designated as Class A, Class C, and Class I Shares, and 50,000,000 are designated as Preferred Shares (“Preferred Shares”). In addition, the Company is authorized to issue one Liquidation Performance Unit. All Shares and the Liquidation Performance Unit issued pursuant to, and in accordance with the requirements of, this Article VII shall be validly issued, fully paid and nonassessable Shares or a Liquidation Performance Unit in the Company. Each Class of Common Shares will have the same voting rights. The Liquidation Performance Unit will have no voting rights. If Shares of one Class or series are classified or reclassified into Shares of another Class or series pursuant to Section 7.3, the number of authorized Shares of the former Class or series shall be automatically decreased and the number of Shares of the latter Class or series shall be automatically increased, in each case by the number of Shares so classified or reclassified, so that the aggregate number of Shares of all Classes or series that the Company has authority to issue shall not be more than the total number of Shares set forth in the first sentence of this paragraph. The Board of Directors, with the approval of a majority of the entire Board of Directors and without any action by the Members, may amend this Agreement from time to time to increase or decrease the aggregate number of Shares or the number of Shares of any Class or series that the Company has authority to issue.

Section 7.3      Classified or Reclassified Shares. Prior to issuance of classified or reclassified Shares of any Class or series, the Board of Directors by resolution shall (a) designate that Class or series to distinguish it from all other Classes and series of Shares of the Company, (b) specify the number of Shares to be included in the Class or series; and (c) set or change, subject to the provisions of Articles X and XI and subject to the express terms of any Class or series of Shares of the Company outstanding at the time, the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications and terms and conditions of redemption for each Class or series (a “Share Designation”). A Share Designation shall be effective when a duly executed original of the same is delivered to the Secretary of the Company for inclusion among the books and records of the Company, and shall be annexed to, and constitute part of, this Agreement.

Section 7.4      Liquidation Performance Unit. Immediately following the consummation of the Internalization Transaction, and the contribution and subsequent cancellation and termination of the Special Unit, the Company issued one Liquidation Performance Unit to the Liquidation Performance Unitholder. There was no obligation to contribute any capital in connection with the issuance of the Liquidation Performance Unit, and the Capital Account balance of the Liquidation Performance Unitholder immediately following its issuance to the Liquidation Performance Unitholder was zero. The grant of the Liquidation Performance Unit is intended to be treated as a restoration of the Liquidation Incentive Distribution (as defined in the Third Amended Agreement), followed by a recapitalization of such interest modifying certain aspects of the distribution rights of such interest that is intended to be governed by Section 721 of the Code, or, to the extent this interest is treated as newly issued, it is intended to be treated as the new issuance of a partnership interest in the Company that represents a profits interest within the meaning of Internal Revenue Service Revenue Procedure 93-27 as supplemented by Revenue Procedure 2001-43. The exchange of the Liquidation Performance Unit for Class P-I Shares contemplated in Section 9.2(b) is, if it occurs, intended to be treated as a recapitalization of the Liquidation Performance Unit governed by Section 721 of the Code.

Section 7.5      Capital Contribution by GCM. GCM made a cash Capital Contribution to the Company of $201,000 for Shares in the Offering. GCM shall have no obligation to make any further Capital Contributions to the Company.

Section 7.6      Additional Capital Contributions. No Member shall be required to make any Capital Contribution in addition to the purchase price paid for such Member’s Shares pursuant to the Offering.

Section 7.7      Capital Contributions by New Members. The Directors are authorized and directed to raise capital for the Company as provided in the Prospectus by Offering and selling Shares to Members as follows:

(a)       Each Class A Share shall initially be issued for a purchase price of $10.00, subject to certain possible discounts, until such time as the Board of Directors adjusts the purchase price of Class A Shares.

(b)       Each Class C Share shall initially be issued for a purchase price of $9.576, subject to certain possible discounts, until such time as the Board of Directors adjusts the purchase price of Class C Shares.

(c)       Each Class I Share shall initially be issued for a purchase price of $9.186, subject to certain possible discounts, until such time as the Board of Directors adjusts the purchase price of Class I Shares.

(d)       Except as set forth below, the initial minimum purchase of Shares shall be $2,000 (or such greater minimum number as may be required under applicable state or federal laws) per Member (including subscriptions from entities of which such Member is the sole Beneficial Owner) and any additional purchases of Shares shall be $500 (or such greater minimum number as may be required under applicable state or federal laws) per Member (including subscriptions from entities of which such Member is the sole Beneficial Owner). Notwithstanding the foregoing, the provisions set forth above relating to the minimum number of Shares which may be purchased shall not apply to purchases of Shares pursuant to the Reinvestment Plan.

(e)       The Directors may accept subscriptions for fractional Shares in excess of the minimum subscription amount.

(f)       The Directors may refuse to accept subscriptions for Shares and contributions tendered therewith for any reason whatsoever.

(g)       Each Share sold to a subscriber shall be fully paid and nonassessable.

(h)       The Directors are further authorized to cause the Company to issue additional Shares of any Class or series to Members pursuant to the terms of this Agreement, including pursuant to any plan of merger, plan of exchange or plan of conversion adopted by the Company.

Section 7.8      Public Offering. Subject to compliance with applicable state securities laws and regulations, the Offering shall terminate 2 years from the date of the Prospectus unless fully subscribed at an earlier date or terminated on an earlier date by the Board of Directors, or unless extended by the Board of Directors for up to an additional 12 months. Except as otherwise provided in this Agreement, the Board of Directors shall have sole and complete discretion in determining the terms and conditions of the offer and sale of Shares and are hereby authorized and directed to do all things which the Board of Directors deems to be necessary, convenient, appropriate and advisable in connection therewith, including the preparation and filing of the Registration Statement with the Securities and Exchange Commission and the securities commissioners (or similar agencies or officers) of such jurisdictions as the Directors shall determine, and the execution or performance of agreements with selling agents and others concerning the marketing of the Shares, all on such basis and upon such terms as the Directors shall determine.

Section 7.9      Minimum Capitalization. The Offering will terminate if the Company has not received and accepted subscriptions for the Minimum Offering on or before the Minimum Offering Expiration Date.

Section 7.10      Escrow Account. Until subscriptions for the Minimum Offering are received and accepted by the Board of Directors, or until the Minimum Offering Expiration Date, whichever first occurs, all subscription proceeds shall be held in an Escrow Account separate and apart from all other funds and invested in obligations of, or obligations guaranteed by, the United States government, or bank money-market accounts or certificates of deposit of national or state banks that have deposits insured by the Federal Deposit Insurance Corporation (including certificates of deposit of any bank acting as a depository or custodian for any such funds), which mature on or before the Minimum Offering Expiration Date, unless such instrument cannot be readily sold or otherwise disposed of for cash by the Minimum Offering Expiration Date without any dissipation of the subscription proceeds invested, all in the discretion of such Escrow Agent or agents appointed by the Board of Directors. All moneys tendered by Persons whose subscriptions are rejected shall be returned, without interest, to such Persons promptly after such rejection. If subscriptions for the Minimum Offering are not received and accepted before the Minimum Offering Expiration Date, those subscriptions and funds in escrow on such date shall be returned to the subscribers, together with any interest earned thereon. Notwithstanding the above, the escrow shall be modified to reflect any particular requirements of federal law or any state in which the Shares are offered. The Company is authorized to enter into one or more escrow agreements on behalf of the Company in such form as is satisfactory to the Board of Directors reflecting the requirements of this Section 7.10 and containing such additional terms as are not inconsistent with this Section 7.10. Upon satisfying the Minimum Offering requirement, funds shall be released from escrow to the Company within approximately 30 days and investors with subscription funds held in the escrow shall be admitted as Members as soon as practicable, but in no event later than 15 days after such release.

Section 7.11      Admission of Members.

(a)       No action or Consent by any Members shall be required for the admission of Members to the Company. Subscriptions will be accepted or rejected within 10 days of receipt of each completed Subscription Agreement by the Company and, if rejected, all funds shall be returned to such subscribers and without deduction for any expenses within 10 Business Days from the date the subscription is rejected. Prior to satisfying the Minimum Offering requirement, funds of subscribers for Shares pursuant to the Offering shall be held in the Escrow Account described in Section 7.10 above. Such funds shall not be released from escrow, and no subscribers for Shares shall be admitted to the Company unless and until the receipt and acceptance by the Company of the Minimum Offering. Any subscriber shall be admitted as a Member no later than the last day of the calendar month following the date his or her subscription was accepted by the Company.

(b)       No Person who subscribes for Shares in the Offering shall be admitted as a Member who has not executed and delivered to the Company the Subscription Agreement specified in the Prospectus, together with such other documents and instruments as the Directors may deem necessary or desirable to effect such admission.

Section 7.12      Interest on Capital Contributions. No interest shall be paid on, or in respect of, any Capital Contribution to the Company by any Member, nor shall any Member have the right to demand or receive cash or other property in return for the Member’s Capital Contribution.

Section 7.13      Suitability Standards. Upon the Commencement of the Initial Public Offering and until Listing, the following provisions shall apply:

(a)           Subject to suitability standards established by individual states or any higher standards established by the Board of Directors to become a Member of the Company, if the prospective Member is an individual (including an individual beneficiary of a purchasing Individual Retirement Account as defined in the Code), or if the prospective Member is a fiduciary (such as a trustee of a trust or corporate pension or profit sharing plan, or other tax-exempt organization, or a custodian under a Uniform Gifts to Minors Act), such individual or fiduciary, as the case may be, shall represent to the Company, among other requirements as the Company may require from time to time:

(i)       that such individual (or, in the case of a fiduciary, that the fiduciary account or the donor who directly or indirectly supplies the funds to purchase the Shares) has a minimum annual gross income of $70,000 and a Net Worth (excluding home, furnishings and automobiles) of not less than $70,000; or

(ii)      that such individual (or, in the case of a fiduciary, that the fiduciary account or the donor who directly or indirectly supplies the funds to purchase the Shares) has a Net Worth (excluding home, furnishings and automobiles) of not less than $250,000.

(b)          The Sponsor and each Person selling Shares on behalf of the Sponsor or the Company shall make every reasonable effort to determine that the purchase of Shares is a suitable and appropriate investment for each Member. In making this determination, the Sponsor or each Person selling Shares on behalf of the Sponsor or the Company shall ascertain that the prospective Member:

(i)       meets the minimum income and Net Worth standards established for the Company;

(ii)      can reasonably benefit from the Company based on the prospective Member’s overall investment objectives and portfolio structure;

(iii)       is able to bear the economic risk of the investment based on the prospective Member’s overall financial situation; and

(iv)       has apparent understanding of: (1) the fundamental risks of the investment; (2) the risk that the Member may lose the entire investment; (3) the lack of liquidity of the Shares; (4) the restrictions on transferability of the Shares; (5) the background and qualifications of the Sponsor or the Advisor; and (6) the tax consequences of the investment. The Sponsor or each Person selling Shares on behalf of the Sponsor or the Company shall make this determination on the basis of information or representations it has obtained from a prospective Member. Relevant information for this purpose will include at least the age, investment objectives, investment experiences, income, Net Worth, financial situation, and other investments of the prospective Member, as well as any other pertinent factors. The Sponsor or each Person selling Share on behalf of the Sponsor or the Company shall maintain records of the information used to determine that an investment in Shares is suitable and appropriate for a Member. The Sponsor or each Person selling Shares on behalf of the Sponsor or the Company shall maintain these records or copies of representations made for at least 6 years.

(c)          Subject to certain individual state requirements, the issuance of Shares under the Reinvestment Plan, or higher standards established by the Board of Directors from time to time, no Member will be permitted to make an initial investment in the Company by purchasing a number of Shares valued at less than $2,000.

Section 7.14      Repurchase of Shares. The Board of Directors may establish, from time to time, a Share Repurchase Program, provided, however, that such repurchase does not impair the capital or operations of the Company. The Sponsor, the Advisor, the Directors or any Affiliates thereof may not receive any fees on the repurchase of Shares by the Company.

Section 7.15      Distribution Reinvestment Plans. The Board of Directors may establish, from time to time, a distribution reinvestment plan or plans (a “Reinvestment Plan”) if all of the following conditions are met: (a) the Company and any subsequent entities in which the Members reinvest are registered or exempted under applicable state securities laws; (b) except as otherwise provided herein, no sales commissions or fees shall be deducted directly or indirectly from the reinvested funds by the Advisor; (c) any subsequent entities in which the Members reinvest has substantially identical investment objectives as the Company; (d) the Members are free to elect or revoke reinvestment within a reasonable time and such right is fully disclosed in the Offering documents; (e) the Members shall have received a Prospectus, which is current as of the date of each such reinvestment; and (f) the broker-dealer or the issuer assumes responsibility for blue sky compliance and performance of due diligence responsibilities and has contacted the Members to ascertain whether the Members continue to meet the applicable states’ suitability standard for participation in each reinvestment.

Section 7.16      Assessments. Mandatory Assessments of any kind shall be prohibited.

ARTICLE VIII

CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS

Section 8.1      Company Capital. No Member shall be paid interest on any Capital Contribution to the Company or on such Member’s Capital Account, and no Member shall have any right (a) to demand the return of such Member’s Capital Contribution or any other distribution from the Company (whether upon resignation, withdrawal or otherwise), except upon dissolution of the Company pursuant to Section 20.3 hereof, (b) to cause a partition of the Company’s assets, or (c) to own or use any particular or individual assets of the Company.

Section 8.2      Establishment and Determination of Capital Accounts. A capital account (“Capital Account”) shall be established for each Member and Liquidation Performance Unitholder (each a “Tax Member”). The Capital Account of each Tax Member shall consist of his, her or its initial Capital Contribution, if any, and shall be (a) increased by (i) any additional Capital Contributions made by such Tax Member pursuant to the terms of this Agreement, (ii) the amount of any Company liabilities that are assumed by such Tax Member, and such Tax Member’s share of Profits allocated to such Tax Member pursuant to Section 9.3, (b) decreased by (i) such Tax Member’s share of Losses allocated to such Tax Member pursuant to Section 9.3 and (ii) any Distributions to such Tax Member (net of liabilities assumed by such Tax Member and liabilities to which such property is subject) distributed to such Tax Member and (c) adjusted as otherwise required by the Code and the regulations thereunder, including the rules of Treasury Regulation Section 1.704-1(b)(2)(iv). Any references in this Agreement to the Capital Account of a Tax Member shall be deemed to refer to such Capital Account as the same may be increased or decreased from time to time as set forth above.

Section 8.3      Computation of Amounts. For purposes of computing the amount of any item of income, gain, loss, deduction or expense to be reflected in Capital Accounts, the determination, recognition and classification of each such item shall be the same as its determination, recognition and classification for federal income tax purposes; provided that:

(a)       any income that is exempt from Federal income tax shall be added to such taxable income or losses;

(b)       any expenditures of the Company described in Section 705(a)(2)(B) of the Code or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulation Section 1.704- 1(b)(2)(iv)(i), shall be subtracted from such taxable income or losses;

(c)       if the Book Value of any Company property is adjusted pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) (in connection with a distribution of such property) or (f) (in connection with a revaluation of Capital Accounts), then the amount of such adjustment shall be taken into account as gain or loss from the disposition of such property;

(d)       if property that is reflected on the books of the Company has a Book Value that differs from the adjusted tax basis of such property, then depreciation, amortization and gain or loss with respect to such property shall be determined by reference to such Book Value; and

(e)       the computation of all items of income, gain, loss, deduction and expense shall be made without regard to any election pursuant to Section 754 of the Code that may be made by the Company, unless the adjustment to basis of Company property pursuant to such election is reflected in Capital Accounts pursuant to Treasury Regulation Section 1.704-l(b)(2)(iv)(m).

Section 8.4      Negative Capital Accounts. No Tax Member shall be required to pay to the Company or any other Tax Member any deficit or negative balance which may exist from time to time in such Tax Member’s Capital Account.

Section 8.5      Adjustments to Book Value. The Company shall adjust the Book Value of its assets to fair market value in accordance with Treasury Regulation Section l.704-l(b)(2)(iv)(f) as of the following times: (a) at the Directors’ discretion, in connection with the issuance of Membership Interests in the Company and the computation of Company NAV; (b) at the Directors’ discretion, in connection with the Distribution by the Company to a Tax Member of more than a de minimis amount of Company assets, including cash, if as a result of such Distribution, such Tax Member’s interest in the Company is reduced (including a redemption); and (c) the liquidation of the Company within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g). Any such increase or decrease in Book Value of an asset made pursuant to Section 8.5(a) or (b) shall, as a matter of administrative convenience, occur on a quarterly basis to take into consideration the contributions by and distributions to Tax Members over the course of a given quarter. Furthermore, any such increase or decrease in Book Value of an asset shall be allocated as a Profit or Loss to the Capital Accounts of the Tax Members under Section 9.3 (determined immediately prior to the issuance of the new Membership Interests or the distribution of assets in an ownership reduction transaction).

Section 8.6      Compliance With Section 1.704-1(b). The provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Section 1.704-1(b) of the Treasury Regulations, and shall be interpreted and applied in a manner consistent with such Treasury Regulations. If the Directors determine that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto (including debits or credits relating to liabilities which are secured by contributed or distributed property or which are assumed by the Company or any Tax Member), are computed in order to comply with such regulation, the Directors may make such modification, provided that it is not likely to have a material effect on the amount distributable to any Tax Member pursuant to Section 9.2 on the dissolution of the Company. The Directors also shall (a) make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Tax Members and the amount of Company capital reflected on the Company’s balance sheet, as computed for book purposes, in accordance with Treasury Regulation Section 1.704-1(b)(iv)(g), and (b) make any appropriate modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Treasury Regulation Section 1.704-1(b).

Section 8.7      Transfer of Capital Accounts. The original Capital Account established for each substituted Tax Member shall be in the same amount as the Capital Account of the Tax Member (or portion thereof) to which such substituted Tax Member succeeds, at the time such substituted Tax Member is admitted to the Company. The Capital Account of any Tax Member whose interest in the Company shall be increased or decreased by means of the transfer of Membership Interests, or in the case of the Liquidation Performance Unitholder, the Liquidation Performance Unit, to or from such Tax Member shall be appropriately adjusted to reflect such transfer. Any reference in this Agreement to a Capital Contribution of or Distribution to a Tax Member that has succeeded any other Tax Member shall include any Capital Contributions or Distributions previously made by or to the former Tax Member on account of the Membership Interests, or in the case of the Liquidation Performance Unitholder, the Liquidation Performance Unit, of such former Tax Member transferred to such Tax Member.

ARTICLE IX

DISTRIBUTIONS; ALLOCATIONS OF PROFITS AND LOSSES; Distributions TO Liquidation Performance UNITHOLDER

Section 9.1      Generally.

(a)       Subject to the provisions of Section 18-607 of the Act, the Directors shall have sole discretion regarding the amounts and timing of distributions to Members, in each case subject to the retention of, or payment to third parties of, such funds or reserves as it deems necessary with respect to anticipated business needs of the Company which shall include (but not by way of limitation) the payment or the making of provision for the payment when due of Company obligations, including the payment of any management or administrative fees and expenses or any other obligations. In no event, however, shall funds be advanced or borrowed by the Company for the purpose of distributions, if the amount of such distributions would exceed the Company’s accrued and received revenues for the previous four quarters, less paid and accrued operating costs with respect to such revenues and costs shall be made in accordance with generally accepted accounting principles, consistently applied. Cash distributions from the Company to the Sponsor shall only be made in conjunction with distributions to Members and only out of funds properly allocated to the Sponsor’s account.

(b)       Subject to the rights of any holders of Preferred Shares specified in any Share Designation, distributions shall be paid: (i) first, if applicable, to Record Holders of the Liquidation Performance Units as provided in Section 9.2, and (ii) second, with respect to any Common Shares, in accordance with the rights of such Class of Shares (and, within such Class, pro rata in proportion to the respective Percentage Interests on such Record Date, or such other date as the Board of Directors may determine in its sole discretion).

Section 9.2      Distribution Paid to Liquidation Performance Unitholder.

(a)            Upon a Listing or Liquidation, the Liquidation Performance Unitholder shall be entitled to a distribution (the “Liquidation Performance Participation Distribution”), the value and character of which is determined as follows:

(i)       if the Liquidation Participation Distribution is payable as a result of a Liquidation, the Liquidation Participation Distribution will equal 20.0% of the net proceeds (in the same form and relative proportion as to the form received by or allocated to the other Members) from the Liquidation of the Company remaining after the other holders of Shares have received Distributions of net proceeds from the Liquidation of the Company equal to the Adjusted Capital as calculated immediately prior to Liquidation; or

(ii)       if the Liquidation Participation Distribution is payable as a result of a Listing, the Liquidation Performance Participation Distribution will equal 20.0% of the Listing Premium, if any.

(b)       Any Listing Premium, and related Liquidation Performance Participation Distribution, will be determined and payable in arrears at the first month end following thirty (30) days after the commencement of trading of Shares following such Listing. In the case of a Listing that is an Initial Public Offering involving GREC Corp (or its successor), the Liquidation Performance Participation Distribution shall be payable by converting the Liquidation Performance Unit into a number of newly issued Class P-I Shares equal to the Liquidation Performance Participation Distribution divided by the Class P-I Share Value as of the first month end following the 30^th trading day following such Initial Public Offering; provided that, notwithstanding anything in this Agreement to the contrary, for a period of two (2) years from the date of issuance of such newly issued Class P-I Shares, such newly issued Class P-I Shares shall not be Assigned, except to Permitted Assignee who takes such P-I Shares agreeing to be bound by the assignment restrictions of this Section 9.2(b), or unless otherwise approved by the Board of Directors in its sole discretion. The Assignment restriction applicable to newly issued Class P-I Shares shall also apply to any securities issued to the holder of Class P-I Shares issued in exchange, conversion or redemption of such Class P-I Shares. Following the issuance of such Class P-I Shares, the Company shall not take any action that would require any holder of such Class P-I Shares to dispose of such Class P-I shares in a transaction in which any gain or loss is recognized for U.S. federal income tax purposes until such holder of such Class P-I Shares has a holding period for purposes of Section 1223 of the Code of more than three (3) years.

(c)       The Company shall pay no distributions to the Members or fees to the Liquidation Performance Unitholder except as provided in this Article IX and Article XX. The Company, and Board of Directors on behalf of the Company with respect to Distributions to Members, shall not be required to make distributions from the Company to any Member or pay any fees to the Liquidation Performance Unitholder to the extent such distribution and/or fee is inconsistent with, or in violation of, the Act or any provision of this Agreement or other applicable law.

(d)       No right is given to any Member or Liquidation Performance Unitholder to demand and receive property other than cash as provided in this Agreement. The Company will make no Distributions of in-kind property to Members, except for (i) Distributions of readily marketable securities, or securities that may become readily marketable within a reasonable period of time, (ii) Distributions of beneficial interests in a liquidating trust established for the dissolution of the Company or (iii) Distributions in connection with the liquidation of the assets in accordance with the terms of this Agreement unless, in the case of (ii) and (iii), (A) the Board of Directors advises each Member of the risks associated with the direct ownership of the property, (B) the Board of Directors offers each Member the election of receiving in-kind property Distributions, and (C) the Company distributes in-kind property only to those Members who accept such offer by the Board of Directors.

(e)       Notwithstanding the other provisions of this Article IX, net proceeds from the sale of any remaining assets, and any other cash received or reductions in reserves made after commencement of the Liquidation of the Company, shall be distributed to the Members or the Liquidation Performance Unitholder in accordance with Article XX hereof.

Section 9.3      Allocation of Profit and Loss. For each fiscal year of the Company, after adjusting each Tax Member’s Capital Account for all Capital Contributions and distributions during such fiscal year and all special allocations pursuant to Section 9.4 with respect to such fiscal year, all Profits and Losses (including special allocations of Distribution Fees and other than Profits and Losses specially allocated pursuant to Section 9.4) shall be allocated to the Tax Members’ Capital Accounts in a manner such that, as of the end of such fiscal year, the Capital Account of each Tax Member (which may be either a positive or negative balance) shall be equal to the amount which would be distributed to such Tax Member if the Company were to liquidate all of its assets for the Book Value thereof and distributed the proceeds thereof pursuant to the order of priorities set forth in Section 9.2 hereof, minus such Tax Member’s share of Company Minimum Gain and Tax Member Nonrecourse Debt Minimum Gain, computed immediately prior to the hypothetical liquidation of the Company’s assets.

Section 9.4      Special Allocations. Notwithstanding the provisions of Section 9.3:

(a)       Nonrecourse Deductions shall be allocated to the Tax Members, pro rata in proportion to the value of their respective interests in the Company, as determined by the Board of Directors. If there is a net decrease in Company Minimum Gain during any taxable year, each Tax Member shall be specially allocated items of taxable income or gain for such taxable year (and, if necessary, subsequent taxable years) in an amount equal to such Tax Member’s share of the net decrease in Company Minimum Gain, determined in accordance with Treasury Regulation Section 1.704-2(g) (subject to the exceptions thereunder). The items to be so allocated shall be determined in accordance with Treasury Regulation Section 1.704-2(f)(6). This paragraph is intended to comply with the minimum gain chargeback requirements in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.

(b)       Tax Member Nonrecourse Deductions shall be allocated in the manner required by Treasury Regulation Section 1.704-2(i). Except as otherwise provided in Treasury Regulation Section 1.704-2(i)(4), if there is a net decrease in Tax Member Nonrecourse Debt Minimum Gain during any taxable year, each Tax Member that has a share of such Tax Member Nonrecourse Debt Minimum Gain shall be specially allocated items of taxable income or gain for such taxable year (and, if necessary, subsequent taxable years) in an amount equal to that Tax Member’s share of the net decrease in Tax Member Nonrecourse Debt Minimum Gain (subject to the exceptions thereunder). Items to be allocated pursuant to this paragraph shall be determined in accordance with Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2). This paragraph is intended to comply with the minimum gain chargeback requirements in Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.

(c)       If any Tax Member unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulation Section 1.704-l(b)(2)(ii)(d)(4), (5) or (6), items of taxable income and gain shall be specially allocated to such Tax Member in an amount and manner sufficient to eliminate the Adjusted Capital Account Deficit (determined according to Treasury Regulation Section 1.704-1(b)(2)(ii)(d)) created by such adjustments, allocations or distributions as quickly as possible. This paragraph is intended to comply with the qualified income offset requirements in Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

(d)       No allocation of Loss shall be made pursuant to Section 9.3 to the extent that it causes or increases a deficit balance in any Tax Member’s Adjusted Capital Account. To the extent any allocation of Loss would cause the Adjusted Capital Account balance of any of the Members to have a deficit balance, such Loss shall be allocated to the Tax Members with positive balances in their Adjusted Capital Accounts in proportion with such relative positive Adjusted Capital Account balances.

(e)       The allocations set forth in paragraphs (a), (b), (c) and (d) above (the “Regulatory Allocations”) are intended to comply with certain requirements of the Treasury Regulations under Code Section 704.

Notwithstanding any other provisions of this Section 9.4 (other than the Regulatory Allocations), the Regulatory Allocations shall be taken into account in allocating Profits and Losses among Tax Members so that, to the extent possible, the net amount of such allocations of Profits and Losses and other items and the Regulatory Allocations (including Regulatory Allocations that, although not yet made, are expected to be made in the future) to each Tax Member shall be equal to the net amount that would have been allocated to such Tax Member if the Regulatory Allocations had not occurred.

Section 9.5      Amounts Withheld. All amounts withheld pursuant to Section 9.10 from any distribution to a Tax Member shall be treated as amounts distributed to such Tax Member pursuant to Section 9.2 for all purposes under this Agreement.

Section 9.6      Tax Allocations: Code Section 704(c).

(a)       The income, gains, losses, deductions and expenses of the Company shall be allocated, for federal, state and local income tax purposes, among the Tax Members in accordance with the allocation of such income, gains, losses, deductions and expenses among the Tax Members for computing their Capital Accounts, except that if any such allocation is not permitted by the Code or other applicable law, the Company’s subsequent income, gains, losses, deductions and expenses shall be allocated among the Tax Members so as to reflect as nearly as possible the allocations set forth herein in computing their Capital Accounts.

(b)       In accordance with Code Section 704(c) and the Treasury Regulations thereunder, income, gain, loss, deduction and expense with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Tax Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its fair market value at the time of contribution using any reasonable method (including the “Traditional Method”) provided for in the Treasury Regulations as selected by the Directors in their sole and discretion.

(c)       If the Book Value of any Company asset is adjusted pursuant to Section 8.5, subsequent allocations of items of taxable income, gain, loss, deduction and expense with respect to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and its Book Value in the same manner as under Code Section 704(c). Any elections or other decisions relating to such allocations shall be made by the Board of Directors in any manner that reasonably reflects the purpose and intent of this Agreement. Allocations pursuant to this Section 9.6 are solely for purposes of federal, state and local taxes and shall not affect, or in any way be taken into account in computing, any Tax Member’s Capital Account or share of Profits, Losses, other items or Distributions pursuant to any provisions of this Agreement.

Section 9.7      Preparation of Tax Returns. The Board of Directors shall arrange for the preparation and timely filing of all returns with respect to Company income, gains, deductions, losses and other items required of the Company for federal and state income tax purposes and shall use all reasonable effort to furnish the tax information reasonably required by Tax Members for federal and state income tax reporting purposes pursuant to Section 13.3.

Section 9.8      Tax Elections. Except as otherwise provided herein, the Board of Directors shall, in its sole and absolute discretion, determine whether to make any available election pursuant to the Code. The Board of Directors shall have the right to seek to revoke any such election upon the Board of Directors’ determination in its sole and absolute discretion that such revocation is in the best interests of the Tax Members.

Section 9.9      Tax Matters.

(a)       GCM is designated the “tax matters partner” (the “Tax Matters Partner”) as defined in Section 6231(a)(7) of the Code with respect to operations conducted by the Company pursuant to this Agreement. The Tax Matters Partner is authorized and required to represent the Company (at the expense of the Company) in connection with all examinations of the affairs of the Company by any U.S. federal, state or local tax authorities, including any resulting administrative and judicial proceedings, and to expend funds of the Company for professional services and costs associated therewith.

(b)       The Board of Directors shall use its best efforts to ensure that the Company satisfies the gross income requirements of Section 7704(c)(2) of the Code for each taxable year of the Company.

Section 9.10      Withholding. Each Member hereby authorizes the Company to withhold from or pay on behalf of or with respect to such Member any amount of federal, state, local or foreign taxes that the Board of Directors determines, in its sole and absolute discretion, that the Company is required to withhold or pay with respect to any amount distributable to such Member pursuant to this Agreement, including any taxes required to be withheld or paid by the Company pursuant to sections 1441, 1442, 1445, 1471 or 1472 of the Code.

ARTICLE X

RESTRICTION ON TRANSFER AND OWNERSHIP OF UNITS

Section 10.1      Withdrawal of a Non-Advisor Member. A Member (other than the Advisor) may withdraw from the Company only by Assigning or having all of his or her Shares redeemed or repurchased in accordance with this Article X. The withdrawal of a Member shall not dissolve or terminate the Company. In the event of the withdrawal of any such Member because of death, legal incompetence, dissolution or other termination, the estate, legal representative or successor of such Member shall be deemed to be the Assignee of the Shares of such Member and may become a Substitute Member upon compliance with the provisions of Section 10.3.

Section 10.2      Assignment.

(a)            Subject to the provisions of Sections 10.2(b) and (c) and 10.3 of this Agreement, any Member (other than the Advisor) may Assign all or any portion of the Shares owned by such Member to an Assignee; provided, that such Member and such Assignee shall each execute a written Assignment instrument, which shall:

(i)       set forth the terms of such Assignment;

(ii)      evidence the acceptance by the Assignee of all of the terms and provisions of this Agreement;

(iii)     include a representation by both such Member and such Assignee that such Assignment was made in accordance with all applicable laws and regulations (including such minimum investment and investor suitability requirements as may then be applicable under state securities laws); and

(iv)     otherwise be satisfactory in form and substance to the Board of Directors.

(b)           Notwithstanding the foregoing, unless the Board of Directors shall specifically Consent, which Consent shall not be unreasonably withheld, no Shares may be Assigned:

(i)       to a minor or incompetent (unless a guardian, custodian or conservator has been appointed to handle the affairs of such Person);

(ii)      to any Person if, in the opinion of counsel, such Assignment would result in the termination of the Company for federal income tax purposes; provided, however, that the Company may permit such Assignment to become effective if and when, in the opinion of counsel, such Assignment would no longer result in the termination of the Company for federal income tax purposes;

(iii)     to any Person if such Assignment would affect the Company’s existence or qualification as a limited liability company under the Act or the applicable laws of any other jurisdiction in which the Company is then conducting business;

(iv)     to any Person not permitted to be an Assignee under applicable law, including applicable federal and state securities laws;

(v)      if such Assignment would result in the transfer of less than 5 Shares (unless such Assignment is of all of the Shares owned by such Member);

(vi)     if such Assignment would result in the retention by such Member of less than 5 Shares; applicable law;

(vii)    if, in the reasonable belief of the Board of Directors, such Assignment might violate applicable law;

(viii)    if, in the determination of the Board of Directors, such Assignment would not be in the best interest of the Company and its Members; or

(ix)       if the Assignment would cause the Shares to be owned by non-United States citizens.

Any attempt to make any Assignment of Shares in violation of this Section 10.2(b) shall be null and void ab initio.

(c)            Assignments made in accordance with this Section 10.2 shall be considered consummated on the last day of the month upon which all of the conditions of this Section 10.2 shall have been satisfied and effective for record purposes and for purposes of Article IX as of the first day of the month following the date upon which all of the conditions of this Section 10.2 shall have been satisfied. Distributions to the Assignee shall commence the month following effectiveness of the Assignment. The Company will not charge the Assigning Member for Assignments except for necessary and reasonable costs actually incurred by the Company.

Section 10.3      Substitution.

(a)            An Assignee shall be admitted to the Company as a Substitute Member only if:

(i)       the Board of Directors has reasonably determined that all conditions specified in Section 10.2 have been satisfied and that no adverse effect to the Company does or may result from such admission; and

(ii)      such Assignee shall have executed a transfer agreement and such other forms as the Board of Directors reasonably may require to determine compliance with this Article X, and shall be deemed to have authorized and appointed with full power of substitution as its, his or her true and lawful agent and attorney-in-fact, with full power and authority in its, his or her name, place and stead, the Advisor and the Company, and each of their authorized officers and attorneys-in-fact, as the case may be, to take such actions as set forth in Section 3.3.

(b)            An Assignee who does not become a Substitute Member in accordance with this Section 10.3 and who desires to make a further Assignment of his or her Shares shall be subject to all the provisions of Sections 10.2, 10.3 and 10.4 to the same extent and in the same manner as a Member desiring to make an Assignment of Shares. Failure or refusal of the Board of Directors to admit an Assignee as a Substitute Member shall in no way affect the right of such Assignee to receive distributions of cash and the share of the Profits or Losses for tax purposes to which his or her predecessor in interest would have been entitled in accordance with Article VIII.

Section 10.4      Status of an Assigning Member. Any Member that Assigns all of his or her Shares to an Assignee who becomes a Substitute Member shall cease to be a Member and shall no longer have any of the rights or privileges of a Member.

Section 10.5      Further Restrictions on Transfers. Notwithstanding any provision to the contrary contained herein, the following restrictions shall also apply to any and all proposed sales, assignments and transfer of Membership Interests or Economic Interests, and any proposed sale, assignment or transfer in violation of same shall be void ab initio.

(a)       No Member shall make any transfer or assignment of all or any part of his Membership Interest or Economic Interest if said transfer or assignment, when considered with all other transfers during the same applicable 12 month period, would, in the opinion of the Board of Directors, result in the termination of the Company’s status as a partnership for federal or state income tax purposes.

(b)       No Member shall make any transfer or assignment of all or any of his Membership Interest or Economic Interest unless the transferee that would have been qualified to purchase Shares in the Offering and no transferee may acquire or hold fewer than 200 Shares.

(c)       Each Member that is a legal entity (other than a Benefit Plan Investor) acknowledges that its management shall have a fiduciary responsibility for the safekeeping and use of all funds and assets of any Assignee to all or a portion of its interest as a Member, and that the management of each Member that is a legal entity (other than a Benefit Plan Investor) shall not employ, or permit another to employ such funds or assets that are attributable to any Assignee of all or a portion of such Member’s interest as a Member in any manner except for the exclusive benefit of the Assignee. Each Member, other than a Benefit Plan Investor, agrees that it will not contract away the foregoing fiduciary duty.

(d)       The provisions of this Article X are in all respects subject to the additional restrictions on the transfer and ownership of Shares provided in Article XI of this Agreement.

Section 10.6      Elimination or Modification of Restrictions. Notwithstanding any of the foregoing provisions of this Article X, the Directors shall amend this Agreement to eliminate or modify any restriction on substitution or assignment at such time as the restriction is no longer necessary or advisable.

Section 10.7      Records. The Membership List shall be updated to reflect Assignees’ admission as Members no less than once each calendar quarter.

ARTICLE XI

ADDITIONAL RESTRICTIONS ON TRANSFER AND OWNERSHIP OF SHARES

Section 11.1      Definitions. For the purpose of this Article XI, the following terms shall have the following meanings:

“Beneficial Ownership” means ownership of Shares by a Person, whether the interest in the Shares is held directly or indirectly (including by a nominee), and shall include interests that would be treated as owned through the application of Section 544 of the Code. The terms “Beneficial Owner,” “Beneficially Owns” and “Beneficially Owned” shall have the correlative meanings.

“Charitable Beneficiary” means one or more beneficiaries of the Charitable Trust as determined pursuant to Section 11.3(g), provided that each such organization must be described in Sections 501(c)(3), 170(b)(1)(A) and 170(c)(2) of the Code.

“Charitable Trust” means any trust provided for in Section 11.2(a) and Section 11.3(a).

“Charitable Trustee” means the Person unaffiliated with both the Company and the relevant Prohibited Owner, that is appointed by the Company to serve as trustee of the Charitable Trust.

“Closely Held C Corporation” shall have the meaning provided in Section 465(a)(1)(B) of the Code.

“Constructive Ownership” means ownership of Shares by a Person who is or would be treated as an owner of such Shares either actually or constructively through the application of Section 544. The terms “Constructive Owner,” “Constructively Own,” “Constructively Owns” and “Constructively Owned” shall have the correlative meanings.

“Initial Date” means August 7, 2013.

“Market Price” on any date shall mean, with respect to any Class or series of outstanding Shares, the Closing Price for such Shares on such date. The “Closing Price” on any date shall mean the last sale price for such Shares, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, for such Shares, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trade on the NYSE or, if such Shares is not listed or admitted to trade on the NYSE, as reported on the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such Shares is listed or admitted to trade or, if such Shares is not listed or admitted to trade on any national securities exchange, the last quoted price, or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the principal automated quotation system that may then be in use or, if such Shares is not quoted by any such system, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such Shares selected by the Board of Directors of the Company or, in the event that no trading price is available for such Shares, the fair market value of the Shares, as determined in good faith by the Board of Directors of the Company.

“NYSE” means the New York Stock Exchange.

“Prohibited Owner” means, with respect to any purported Transfer, any Person who, but for the provisions of Section 11.2, would Beneficially Own or Constructively Own Shares in violation of the provisions of Section 11.2(a), and if appropriate in the context, shall also mean any Person who would have been the record owner of the Shares that the Prohibited Owner would have so owned.

“Restriction Termination Date” means the first day after the Initial Date on which the Board of Directors determines that it is in the best interests of the Company for GREC Corp to be classified as a Closely Held C Corporation or that compliance with the restrictions and limitations on Beneficial Ownership, Constructive Ownership and Transfers of Shares set forth herein is no longer required in order for GREC Corp not to be classified as a Closely Held C Corporation.

“Share Ownership Limit” means not more than 9.8% (in value or in number of Shares, whichever is more restrictive) of the aggregate of the outstanding Shares of the Company. The number and value of outstanding Shares of the Company shall be determined by the Board of Directors in good faith, which determination shall be conclusive for all purposes hereof.

“Transfer” means any issuance, sale, transfer, gift, assignment, devise or other disposition, as well as any other event that causes any Person to acquire or have Beneficial Ownership or Constructive Ownership, or any agreement to take any such actions or cause any such events, of Shares or the right to vote or receive dividends or distributions on Shares, including (a) a change in the capital structure of the Company, (b) a change in the relationship between two or more Persons which causes a change in ownership of Shares by application of Section 544 of the Code, (c) the granting or exercise of any option or warrant (or any acquisition or disposition of any option or warrant), pledge, security interest, or similar right to acquire Shares, (d) any acquisition or disposition of any securities or rights convertible into or exchangeable for Shares or any interest in Shares or any exercise of any such conversion or exchange right, and (e) Transfers of interests in other entities that result in changes in Beneficial Ownership or Constructive Ownership of Shares; in each case, whether voluntary or involuntary, whether owned of record, Constructively Owned or Beneficially Owned and whether by operation of law or otherwise. The terms “Transferring” and “Transferred” shall have the correlative meanings.

Section 11.2      Shares.

(a)            Ownership Limitations. During the period commencing on the Initial Date and prior to the Restriction Termination Date, except as provided in Section 11.2(g):

(i)          Basic Restrictions.

(A)       No Person shall Beneficially Own or Constructively Own Shares in excess of the Share Ownership Limit; and

(B)       No Person shall Beneficially Own or Constructively Own Shares to the extent that such Beneficial Ownership or Constructive Ownership of Shares would result in the GREC Corp being classified as a Closely Held C Corporation.

(C)       No Person shall Transfer any Shares if, as a result of the Transfer, more than 49.9% of the outstanding Shares would be owned in aggregate by five or fewer individuals. Subject to Section 11.4 and notwithstanding any other provisions contained herein, any Transfer of Shares (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE or any other national securities exchange or automated interdealer quotation system) that, if effective, would result in more than 49.9% of the Shares being Beneficially Owned in aggregate by five or fewer individuals shall be void ab initio, and the intended transferee shall acquire no rights in such Shares.

(ii)        Transfer in Trust. If any Transfer of Shares (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE or any other national securities exchange or automated interdealer quotation system) occurs which, if effective, would result in any Person Beneficially Owning or Constructively Owning Shares in violation of Section 11.2(a)(i) or (ii),

(A)       then that number of Shares the Beneficial Ownership or Constructive Ownership of which otherwise would cause such Person to violate Section 11.2(a)(i) or (ii) (rounded up to the nearest whole Share) shall be automatically transferred to a Charitable Trust for the benefit of a Charitable Beneficiary, as described in Section 11.3, effective as of the close of business on the Business Day prior to the date of such Transfer, and such Person shall acquire no rights in such Shares; or

(B)       if the Transfer to the Charitable Trust described in clause (i) of this sentence would not be effective for any reason to prevent the violation of Section 11.2(a)(i) or (ii), or would not prevent GREC Corp from being classified as a Closely Held C Corporation, then the Transfer of that number of Shares that otherwise would cause any Person to violate Section 11.2(a)(i) or (ii) shall be void ab initio, and the intended transferee shall acquire no rights in such Shares.

(b)           Remedies for Breach. If the Board of Directors of the Company or any duly authorized committee thereof shall at any time determine in good faith that a Transfer or other event has taken place that results in a violation of Section 11.2 or that a Person intends to acquire or has attempted to acquire Beneficial Ownership or Constructive Ownership of any Shares in violation of Section 11.2 (whether or not such violation is intended), the Board of Directors or a committee thereof shall take such action as it deems advisable to refuse to give effect to or to prevent such Transfer or other event, including causing the Company to redeem Shares, refusing to give effect to such Transfer on the books of the Company or instituting proceedings to enjoin such Transfer or other event; provided, however, that any Transfer or attempted Transfer or other event in violation of Section 11.2 shall automatically result in the Transfer to the Charitable Trust described above, or, where applicable, such Transfer (or other event) shall be void ab initio as provided above, irrespective of any action (or non-action) by the Board of Directors or a committee thereof.

(c)           Notice of Restricted Transfer. Any Person who acquires or attempts or intends to acquire Beneficial Ownership or Constructive Ownership of Shares that will or may violate Section 11.2(a), or any Person who would have owned Shares that resulted in a Transfer to the Charitable Trust pursuant to the provisions of Section 11.2(b), shall immediately give written notice to the Company of such event or, in the case of such a proposed or attempted transaction, shall give at least 15 days prior written notice, and shall provide to the Company such other information as the Company may request in order to determine whether there is a risk that such acquisition or ownership would cause GREC Corp to be classified as a Closely Held C Corporation.

(d)           Owners Required To Provide Information. From the Initial Date and prior to the Restriction Termination Date:

(i)       every owner of more than 5% (or such lower percentage as required by the Code or the Treasury Regulations promulgated thereunder) of the outstanding Shares, within 30 days after the end of each taxable year, shall give written notice to the Company stating the name and address of such owner, the number of Shares of each Class or series Beneficially Owned and a description of the manner in which such Shares are held; provided, that a Member of record who holds outstanding Shares as nominee for another Person, which other Person is required to include in gross income the dividends or distributions received on such Shares (an “Actual Owner”), shall give written notice to the Company stating the name and address of such Actual Owner and the number of Shares of such Actual Owner with respect to which the Member of record is nominee. Each such owner shall provide to the Company such additional information as the Company may request in order to determine the effect, if any, of such Beneficial Ownership of the Company and whether there is a risk that GREC Corp will be classified as a Closely Held C Corporation and to ensure compliance with the Share Ownership Limit; and

(ii)      each Person who is a Beneficial Owner or Constructive Owner of Shares and each Person (including the Member of record) who is holding Shares for a Beneficial Owner or Constructive Owner shall provide to the Company such information as the Company may request, in good faith, in order to determine whether there is a risk that GREC Corp will be classified as a Closely Held C Corporation, to comply with requirements of any taxing authority or governmental authority or to determine such compliance and to ensure compliance with the Share Ownership Limit.

(e)           Remedies Not Limited. Subject to applicable provisions in the Agreement, nothing contained in this Section 11.2 shall limit the authority of the Board of Directors to take such other action as it deems necessary or advisable to protect the Company and the interests of its Members in avoiding GREC Corp being classified as a Closely Held C Corporation.

(f)            Ambiguity. In the case of an ambiguity in the application of any of the provisions of this Section 11.2, Section 11.3 or any definition contained in Section 11.1, the Board of Directors shall have the power to determine the application of the provisions of this Section 11.2 or Section 11.3 with respect to any situation based on the facts known to it. If Section 11.2 or 11.3 requires an action by the Board of Directors and this Agreement fails to provide specific guidance with respect to such action, the Board of Directors shall have the power to determine the action to be taken so long as such action is not contrary to the provisions of Sections 11.1, 11.2 or 11.3.

(g)            Exemptions.

(i)       The Board of Directors, in its sole discretion, may exempt, prospectively or retroactively, a Person from the Share Ownership Limit if: (A) such Person submits to the Board of Directors information satisfactory to the Board of Directors, in its reasonable discretion, demonstrating that such Person is not an individual for purposes of Section 542(a)(2) of the Code; (B) such Person submits to the Board of Directors information satisfactory to the Board of Directors, in its reasonable discretion, demonstrating that no Person who is an individual for purposes of Section 542(a)(2) of the Code would be considered to Beneficially Own Shares in excess of the Share Ownership Limit by reason of such Person’s ownership of Shares in excess of the Share Ownership Limit pursuant to the exemption granted under this Section 11.2(g)(i); (C) such Person submits to the Board of Directors information satisfactory to the Board of Directors, in its reasonable discretion, demonstrating that clauses (A), (B), and (C) of Section 11.2(a)(i) will not be violated by reason of such Person’s ownership of Shares in excess of the Share Ownership Limit pursuant to the exemption granted under this Section 11.2(g)(i); and (D) such Person provides to the Board of Directors such representations and undertakings, if any, as the Board of Directors may, in its reasonable discretion, require to ensure that the conditions in clauses (A), (B) and (C) hereof are satisfied and will continue to be satisfied throughout the period during which such Person owns Shares in excess of the Share Ownership Limit pursuant to any exemption thereto granted under this Section 11.2(g)(i), and such Person agrees that any violation of such representations and undertakings or any attempted violation thereof may result in the application of the remedies set forth in Section 11.2 (including Section 11.2(e)) with respect to Shares held in excess of the Share Ownership Limit with respect to such Person (determined without regard to the exemption granted such Person under this Section 11.2(g)(i)).

(ii)      Prior to granting any exemption pursuant to Section 11.2(g)(i), the Board of Directors, in its sole and absolute discretion, may require a ruling from the Internal Revenue Service or an opinion of counsel, in either case in form and substance satisfactory to the Board of Directors, in its sole and absolute discretion as it may deem necessary or advisable in order to determine or ensure that GREC Corp will not be classified as a Closely Held C Corporation; provided, however, that the Board of Directors shall not be obligated to require obtaining a favorable ruling or opinion in order to grant an exception hereunder.

(iii)     Subject to Section 11.2(a)(ii), an underwriter that participates in a public offering or a private placement of Shares (or securities convertible into or exchangeable for Shares) may Beneficially Own or Constructively Own Shares in excess of the Share Ownership Limit, but only to the extent necessary to facilitate such public offering or private placement.

(h)            Increase in the Shares Ownership Limit. Subject to the limitations provided in Section 11.2(a)(i) and this Section 11.2(h), the Board of Directors may from time to time increase the Share Ownership Limit; provided, however, that:

(i)       the Share Ownership Limit may not be increased if, after giving effect to such change, five or fewer Persons who are considered individuals pursuant to Section 542 of the Code could Beneficially Own, in the aggregate, more than 49.9% of the value of the outstanding Shares; and

(ii)       prior to the modification of the Shares Ownership Limit pursuant to this Section 11.2, the Board of Directors, in its sole and absolute discretion, may require such opinions of counsel, affidavits, undertakings or agreements as it may deem necessary or advisable in order to determine or ensure that GREC Corp will not be classified as a Closely Held C Corporation if the modification of the Share Ownership Limit were to be made.

(i)             Legend. Each certificate, if any, for Shares shall bear substantially the following legend: The Shares represented by this certificate are subject to restrictions on Beneficial Ownership, Constructive Ownership and Transfer. Subject to certain further restrictions and except as expressly provided in this Agreement, (i) no Person may Beneficially Own or Constructively Own the Company’s Shares in excess of 9.8 percent (in value or number of Shares, whichever is more restrictive) of the outstanding Shares of the Company; and (ii) if, as a result of the Transfer, more than 49.9% of the outstanding Shares would be owned in aggregate by five or fewer individuals.

Any Person who Beneficially Owns or Constructively Owns, Transfers or attempts to Beneficially Own or Constructively Own Shares which causes or will cause a Person to Beneficially Own or Constructively Own Shares in excess or in violation of the above limitations set forth must immediately notify the Company. If certain of the restrictions on transfer or ownership are violated, the Shares represented hereby will be automatically transferred to a Charitable Trustee of a Charitable Trust for the benefit of one or more Charitable Beneficiaries. In addition, upon the occurrence of certain events, attempted Transfers in violation of the restrictions described above may be void ab initio. A Person who attempts to Beneficially Own or Constructively Own Shares in violation of the ownership limitations described above shall have no claim, cause of action, or any recourse whatsoever against a transferor of such Shares. All capitalized terms in this legend have the meanings defined in the Agreement, as the same may be amended from time to time, a copy of which, including the restrictions on transfer and ownership, will be furnished to each holder of Shares of the Company on request and without charge. Instead of the foregoing legend, the certificate may state that the Company will furnish a full statement about certain restrictions on transferability to a Member on request and without charge.

Section 11.3      Transfer of Shares in Trust.

(a)           Ownership in Trust. Upon any purported Transfer or other event described in Section 11.2(b) that would result in a Transfer of Shares to a Charitable Trust, such Shares shall be deemed to have been transferred to the Charitable Trustee as trustee of a Charitable Trust for the exclusive benefit of one or more Charitable Beneficiaries. Such Transfer to the Charitable Trustee shall be deemed to be effective as of the close of business on the Business Day prior to the purported Transfer or other event that results in the Transfer to the Charitable Trust pursuant to Section 11.2(b). The Charitable Trustee shall be appointed by the Company and shall be a Person unaffiliated with the Company and any Prohibited Owner. Each Charitable Beneficiary shall be designated by the Company as provided in Section 11.3(g).

(b)       Status of Shares Held by the Charitable Trustee. Shares held by the Charitable Trustee shall be issued and outstanding Shares of the Company. The Prohibited Owner shall have no rights in the Shares held by the Charitable Trustee. The Prohibited Owner shall not benefit economically from ownership of any Shares held in trust by the Charitable Trustee, shall have no rights to dividends or other distributions and shall not possess any rights to vote or other rights attributable to the Shares held in the Charitable Trust. The Prohibited Owner shall have no claim, cause of action, or any other recourse whatsoever against the purported transferor of such Shares.

(c)       Dividend and Voting Rights. The Charitable Trustee shall have all voting rights and rights to dividends or other distributions with respect to Shares held in the Charitable Trust, which rights shall be exercised for the exclusive benefit of the Charitable Beneficiary. Any dividend or other distribution paid prior to the discovery by the Company that Shares have been transferred to the Charitable Trustee shall be paid with respect to such Shares to the Charitable Trustee upon demand and any dividend or other distribution authorized but unpaid shall be paid when due to the Charitable Trustee. Any dividends or distributions so paid over to the Charitable Trustee shall be held in trust for the Charitable Beneficiary. The Prohibited Owner shall have no voting rights with respect to Shares held in the Charitable Trust and, subject to Delaware law, effective as of the date that Shares have been transferred to the Charitable Trustee, the Charitable Trustee shall have the authority (at the Charitable Trustee’s sole discretion) (i) to rescind as void any vote cast by a Prohibited Owner prior to the discovery by the Company that Shares have been transferred to the Charitable Trustee and (ii) to recast such vote in accordance with the desires of the Charitable Trustee acting for the benefit of the Charitable Beneficiary; provided, however, that if the Company has already taken irreversible action, then the Charitable Trustee shall not have the authority to rescind and recast such vote. Notwithstanding the provisions of this Article XI, until the Company has received notification that Shares have been transferred into a Charitable Trust, the Company shall be entitled to rely on its share Transfer and other stockholder records for purposes of preparing lists of stockholders entitled to vote at meetings, determining the validity and authority of proxies and otherwise conducting votes of stockholders.

(d)       Rights Upon Liquidation. Upon any voluntary or involuntary liquidation, dissolution or winding up of or any distribution of the assets of the Company, the Charitable Trustee shall be entitled to receive, ratably with each other holder of Shares of the Class or series of Shares that is held in the Charitable Trust, that portion of the assets of the Company available for distribution to the holders of such Class or series (determined based upon the ratio that the number of Shares of such Class or series of Shares held by the Charitable Trustee bears to the total number of Shares of such Class or series of Shares then outstanding). The Charitable Trustee shall distribute any such assets received in respect of the Shares held in the Charitable Trust in any liquidation, dissolution or winding up of, or distribution of the assets of the Company, in accordance with Section 11.3(e).

(e)       Sale of Shares by Charitable Trustee. Within 20 days of receiving notice from the Company that Shares have been transferred to the Charitable Trust, the Charitable Trustee shall sell the Shares held in the Charitable Trust to a person, designated by the Charitable Trustee, whose ownership of the Shares will not violate the ownership limitations set forth in Section 11.2(a). In connection with any such sale, the Charitable Trustee shall use good faith efforts to sell such Shares at a fair Market Price. Upon such sale, the interest of the Charitable Beneficiary in the Shares sold shall terminate and the Charitable Trustee shall distribute the net proceeds of the sale to the Prohibited Owner and to the Charitable Beneficiary as provided in this Section 11.3(e). The Prohibited Owner shall receive the lesser of (1) the price paid by the Prohibited Owner for the Shares or, if the Prohibited Owner did not give value for the Shares in connection with the event causing the Shares to be held in the Charitable Trust (e.g., in the case of a gift, devise or other such transaction), the Market Price of the Shares on the day of the event causing the Shares to be held in the Charitable Trust and (2) the price per Share received by the Charitable Trustee (net of any commissions and other expenses of sale) from the sale or other disposition of the Shares held in the Charitable Trust. The Charitable Trustee may reduce the amount payable to the Prohibited Owner by the amount of dividends and distributions which have been paid to the Prohibited Owner and are owed by the Prohibited Owner to the Charitable Trustee pursuant to Section 11.3(c) of this Article XI. Any net sales proceeds in excess of the amount payable to the Prohibited Owner shall be immediately paid to the Charitable Beneficiary. If, prior to the discovery by the Company that Shares have been transferred to the Charitable Trustee, such Shares are sold by a Prohibited Owner, then (i) such Shares shall be deemed to have been sold on behalf of the Charitable Trust and (ii) to the extent that the Prohibited Owner received an amount for such Shares that exceeds the amount that such Prohibited Owner was entitled to receive pursuant to this Section 11.3(e), such excess shall be paid to the Charitable Trustee upon demand.

(f)       Purchase Right in Shares Transferred to the Charitable Trustee. Shares transferred to the Charitable Trustee shall be deemed to have been offered for sale to the Company, or its designee, at a price per Share equal to the lesser of (i) the price per Share in the transaction that resulted in such Transfer to the Charitable Trust (or, in the case of a devise or gift, the Market Price at the time of such devise or gift) and the Market Price on the date the Company, or its designee, accepts such offer. The Company may reduce the amount payable to the Prohibited Owner by the amount of dividends and distributions which have been paid to the Prohibited Owner and are owed by the Prohibited Owner to the Charitable Trustee pursuant to Section 11.3(c) of this Article XI. The Company may pay the amount of such reduction to the Charitable Trustee for the benefit of the Charitable Beneficiary. The Company shall have the right to accept such offer until the Charitable Trustee has sold the Shares held in the Charitable Trust pursuant to Section 11.3(e). Upon such a sale to the Company, the interest of the Charitable Beneficiary in the Shares sold shall terminate and the Charitable Trustee shall distribute the net proceeds of the sale to the Prohibited Owner.

(g)       Designation of Charitable Beneficiaries. By written notice to the Charitable Trustee, the Company shall designate one or more nonprofit organizations to be the Charitable Beneficiary of the interest in the Charitable Trust such that (i) the Shares held in the Charitable Trust would not violate the restrictions set forth in Section 11.2(a) in the hands of such Charitable Beneficiary and (ii) each such organization must be described in Sections 501(c)(3), 170(b)(1)(A) and 170(c)(2) of the Code and must not be a foreign person as defined in Treasury Regulation Section 1.897-9T(c).

Section 11.4      NYSE Transactions. Nothing in this Article XI shall preclude the settlement of any transaction entered into through the facilities of the NYSE or any other national securities exchange or automated inter-dealer quotation system. The fact that the settlement of any transaction takes place shall not negate the effect of any other provision of this Article XI and any transferee in such a transaction shall be subject to all of the provisions and limitations set forth in this Article XI.

Section 11.5      Enforcement. The Company is authorized specifically to seek equitable relief, including injunctive relief, to enforce the provisions of this Article XI.

Section 11.6      Non-Waiver. No delay or failure on the part of the Company or the Board of Directors in exercising any right hereunder shall operate as a waiver of any right of the Company or the Board of Directors, as the case may be, except to the extent specifically waived in writing.

ARTICLE XII

MEMBERS, MEETINGS AND VOTING RIGHTS OF THE MEMBERS

Section 12.1      Annual Meetings of Members. Beginning in calendar year 2014, an annual meeting of the Members for the election of Directors and the transaction of any business within the powers of the Company shall be held on a date and at the time set by the Board of Directors during the month of May in each year.

Section 12.2      Special Meetings of Members.

(a)           General. The Chairman of the Board of Directors, the President, the Chief Executive Officer or the Board of Directors may call a special meeting of the Members.

(b)           Member Requested Special Meetings.

(i)       Any Record Holder seeking to have Members request a special meeting of Members shall, by sending written notice to the Secretary of the Company (the “Record Date Request Notice”) by registered mail, return receipt requested, request the Board of Directors fix a record date to determine the Members entitled to request a special meeting of Members (the “Request Record Date”). The Record Date Request Notice shall set forth the purpose of the meeting and the matters proposed to be presented to Members for their consideration, shall be signed by one or more Record Holders as of the date of signature (or their agents duly authorized in a writing accompanying the Record Date Request Notice), shall bear the date of signature of each such Member (or such agent) and shall set forth all information relating to each such Member that must be disclosed in solicitations of proxies for election of Directors in an election contest (even if an election contest is not involved), or is otherwise required, in each case pursuant to Regulation 14A (or any successor provision) under the Exchange Act. Upon receiving the Record Date Request Notice, the Board of Directors may fix a Request Record Date. The Request Record Date shall not precede and shall not be more than 10 days after the close of business on the date on which the resolution fixing the Request Record Date is adopted by the Board of Directors. If the Board of Directors, within 10 days after the date on which a valid Record Date Request Notice is received, fails to adopt a resolution fixing the Request Record Date, the Request Record Date shall be the close of business on the 10th day after the first date on which the Record Date Request Notice is received by the Secretary.

(ii)        A special meeting of Members to act on any matter that may be properly considered at a meeting of Members shall be called by the Secretary of the Company upon the written request delivered to the Secretary of the Company of Record Holders (or their agents duly authorized in a writing accompanying the request) as of the Request Record Date entitled to cast not less than 10% (the “Special Meeting Percentage”) of all of the votes entitled to be cast at such meeting (the “Special Meeting Request”) at the time and place convenient for such Members. In addition, in order for the Secretary of the Company to be required to call a special meeting of Members, the Special Meeting Request shall (1) set forth the purpose of the meeting and the matters proposed to be presented to the Members for their consideration (which shall be limited to those matters specified in Section 12.22(a)), (2) bear the date of signature of each such Member (or such agent) signing the Special Meeting Request, (3) set forth the name and address, as they appear in the Company’s books, of each Member signing such request (or on whose behalf the Special Meeting Request is signed), the Class, series and number of all Shares of the Company which are owned by each such Member, and the nominee holder for, and number of, Shares owned by such Member beneficially but not of record, (4) be sent to the Secretary by registered mail, return receipt requested, and (5) be received by the Secretary within 60 days after the Request Record Date. Any requesting Member (or agent duly authorized in a writing accompanying the revocation or Special Meeting Request) may revoke his, her or its request for a special meeting of Members at any time by written revocation delivered to the Secretary.

(iii)       The Secretary shall inform the requesting Member of the reasonably estimated cost of preparing and mailing the notice of meeting (including the Company’s proxy materials). The Secretary shall not be required to call a special meeting of Members upon Member request and such meeting shall not be held unless, in addition to the documents required by paragraph (ii) of this Section 12.2(b), the Secretary on behalf of the Company receives payment of such reasonably estimated cost prior to the preparation and mailing of any notice of the meeting.

(iv)       Members representing ten percent (10%) of the outstanding Shares may call a meeting of the Company for any matters for which Members may vote as set forth in this Agreement. If Members representing the requisite Shares present to the Board of Directors a written request stating the purpose of the meeting, the Board of Directors shall fix a date for such meeting and shall, within ten (10) days after receipt of such request, provide written notice in accordance with Section 12.4 below to all of the Members of the date of such meeting and the purpose for which it has been called. With respect to a meeting duly requested by Members, such meeting shall be held at a date not less than fifteen (15) and not more than sixty (60) days after the Company’s receipt of the Members’ written request for the meeting, and, unless otherwise specified in the notice for such meeting, the meeting shall be held at 2:00 p.m. on such date at the principal place of business of the Company. At any meeting of the Company, Members may vote in person or by proxy. A Majority of the Members, present in person or by proxy, shall constitute a quorum at any Company meeting. Any question relating to the Company which may be considered and acted upon by the Members hereunder may be considered and acted upon by vote at a Company meeting, and any Consent required to be in writing shall be deemed given by a vote by written ballot. Except as expressly provided above, additional meeting and voting procedures shall be in conformity with Section 18-302 of the Act. In fixing a date for any special meeting of Members, the Chairman of the Board of Directors, President, Chief Executive Officer or Board of Directors may consider such factors as he, she or it deems relevant within the good faith exercise of business judgment, including the nature of the matters to be considered, the facts and circumstances surrounding any request for the meeting and any plan of the Board of Directors to call an annual meeting of Members or a special meeting of Members. The Board of Directors may revoke the notice for any special meeting of Members called by the Secretary upon the request of Members in the event that the requesting Members fail to comply with the provisions of this Section 12.2(b).

(v)       If written revocations of requests for the special meeting of Members have been delivered to the Secretary and the result is that Members of record (or their agents duly authorized in writing), as of the Request Record Date, entitled to cast less than the Special Meeting Percentage have delivered, and not revoked, requests for a special meeting of Members to the Secretary, the Secretary shall: (1) if the notice of meeting has not already been mailed, refrain from mailing the notice of the meeting, or (2) if the notice of meeting has been mailed revoke the notice of the meeting revoke the notice of the meeting at any time before 10 days before the commencement of the meeting. Any request for a special meeting of Members received after a revocation by the Secretary of a notice of a meeting shall be considered a request for a new special meeting of Members.

(vi)       The Chairman of the Board of Directors, the Chief Executive Officer, President or Board of Directors may appoint regionally or nationally recognized independent inspectors of elections to act as the agent of the Company for the purpose of performing a ministerial review of the validity of any purported Special Meeting Request received by the Secretary.

Section 12.3      Place of Meeting. Subject to Section 12.2, all meetings of Members shall be held at the place designated by the Board of Directors and stated in the notice of the meeting.

Section 12.4      Notice of Meeting.

(a)       Not less than 15 nor more than 60 days before each meeting of Members, the Secretary shall give to each Member entitled to vote at such meeting written notice stating the time, place and purpose of the meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail addressed to the Member at the Member’s address as it appears on the records of the Company, with postage thereon prepaid.

(b)       Subject to Section 12.10, any business of the Company may be transacted at an annual meeting of Members without being specifically designated in the notice, except such business as is required by any statute to be stated in such notice. No business shall be transacted at a special meeting of Members except as specifically designated in the notice.

Section 12.5      Record Date. The Board of Directors may set, in advance, a record date for the purpose of determining Members entitled to notice of or to vote at any meeting of Members or determining Members entitled to receive payment of any distribution or the allotment of any other rights, or in order to make a determination of Members for any other proper purpose. Such date, in any case, shall not be prior to the close of business on the day the record date is fixed and shall be not more than 90 days and, in the case of a meeting of Members, not less than 10 days, before the date on which the meeting or particular action requiring such determination of Record Holders is to be held or taken.

Section 12.6      Organization and Conduct. Every meeting of Members shall be conducted by an individual appointed by the Board of Directors to be chairman of the meeting or, in the absence of such appointment, by the Chairman of the Board of Directors or, in the case of a vacancy in the office or absence of the Chairman of the Board of Directors, by the person designated by the Board of Directors. The order of business and all other matters of procedure at any meeting of Members shall be determined by the chairman of the meeting. The chairman of the meeting may prescribe such rules, regulations and procedures and take such action as, in the discretion of such chairman, are appropriate for the proper conduct of the meeting, including, (a) restricting admission to the time set for the commencement of the meeting; (b) limiting attendance at the meeting to Members that are Record Holders, their duly authorized proxies or other such individuals as the chairman of the meeting may determine; (c) limiting participation at the meeting on any matter to Members that are Record Holders entitled to vote on such matter, their duly authorized proxies and other such individuals as the chairman of the meeting may determine; (d) limiting the time allotted to questions or comments by participants; (e) determining when the polls should be opened and closed, maintaining order and security at the meeting; (f) removing any Members or any other individual who refuses to comply with meeting procedures, rules or guidelines as set forth by the chairman of the meeting; and (g) concluding the meeting or recessing or adjourning the meeting to a later date and time and place announced at the meeting.

Section 12.7      Quorum. At any meeting of Members, the presence in person or by proxy of Members entitled to cast a majority of all the votes entitled to be cast at such meeting on any matter shall constitute a quorum; but this section shall not affect any requirement under applicable law for the vote necessary for the adoption of any measure. If, however, such quorum shall not be present at any meeting of the Members, the chairman of the meeting shall have the power (but shall not be required) to adjourn the meeting from time to time to a date not more than 120 days after the original record date without notice other than announcement at the meeting. At such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally notified.

The Members present either in person or by proxy, at a meeting which has been duly called and convened, may continue to transact business until adjournment, notwithstanding the withdrawal of enough Members to leave less than a quorum.

Section 12.8      Proxies. At all meetings of Members, a Member may vote by proxy as may be permitted by law; provided, that no proxy shall be voted after eleven months from its date. Any proxy to be used at a meeting of Members must be filed with the Secretary of the Company or his or her representative at or before the time of the meeting. A Member may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary a revocation of the proxy or a new proxy bearing a later date. The Board of Directors may adopt procedures with respect to the use of proxies at any meeting of Members.

Section 12.9      Voting of Shares by Certain Holders.

(a)       Shares registered in the name of a corporation, partnership, trust or other entity, if entitled to be voted, may be voted by the president or a vice president, a general partner or trustee thereof, as the case may be, or a proxy appointed by any of the foregoing individuals, unless some other Person who has been appointed to vote such Shares pursuant to a bylaw or a resolution of the governing body of such corporation or other entity or agreement of the partners of a partnership presents a certified copy of such bylaw, resolution or agreement, in which case such Person may vote such Shares. Any Director or other fiduciary may vote Shares registered in his or her name as such fiduciary, either in person or by proxy.

(b)           Shares of the Company directly owned by it shall not be voted at any meeting and shall not be counted in determining the total number of outstanding Shares entitled to be voted at any given time, unless they are held by it in a fiduciary capacity, in which case they may be voted and shall be counted in determining the total number of outstanding Shares at any given time.

(c)            The Board of Directors may adopt a procedure by which a Member may certify in writing to the Company that any Shares registered in the name of the Member are held for the account of a specified Person other than the Member.

Section 12.10      Notice of Member Business and Nominations.

(a)           Annual Meetings of Members.

(i)       Nominations of individuals for election to the Board of Directors and the proposal of other business to be considered by the Members may be made at an annual meeting of Members (A) pursuant to the Company’s notice of meeting, (B) by or at the direction of the Board of Directors or (C) by any Member who was a Member of record both at the time of giving of notice by the Member as provided for in this Section 12.10(a) and at the time of the annual meeting, who is entitled to vote at the meeting and who has complied with this Section 12.10(a).

(ii)       For nominations or other business to be properly brought before an annual meeting of Members by a Member pursuant to clause (C) of Section 12.10(a)(i), the Member must have given timely notice thereof in writing to the Secretary and such other business must otherwise be a proper matter for action by the Members. To be timely, a Member’s notice shall set forth all information required under this Section 12.10 and shall be delivered to the Secretary at the principal executive office of the Company not earlier than the 150th day nor later than 5:00 p.m., Eastern Time on the 120th day prior to the first anniversary of the Date of Mailing of the Notice for the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced or delayed by more than 30 days from the first anniversary of the date of the preceding year’s annual meeting, notice by the Member to be timely must be so delivered not earlier than the 150th day prior to the date of such annual meeting and not later than 5:00 p.m., Eastern Time on the later of the 120th day prior to the date of such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made. The public announcement of a postponement or adjournment of an annual meeting shall not commence a new time period for the giving of a Member’s notice as described above. Such Member’s notice shall set forth (A) as to each individual whom the Member proposes to nominate for election or reelection as a Director, (1) the name, age, business address and residence address of such individual, (2) the Class, series and number of any Shares that are Beneficially Owned by such individual, (3) the date such Shares were acquired and the investment intent of such acquisition and (4) all other information relating to such individual that is required to be disclosed in solicitations of proxies for election of Directors in an election contest (even if an election contest is not involved), or is otherwise required, in each case pursuant to Regulation 14A (or any successor provision) under the Exchange Act and the rules thereunder (including such individual’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected); (B) as to any other business that the Member proposes to bring before the meeting, a description of such business, the reasons for proposing such business at the meeting and any material interest in such business of such Member and any Member Associated Person (as defined below), individually or in the aggregate, including any anticipated benefit to the Member and the Member Associated Person therefrom; (C) as to the Member giving the notice and any Member Associated Person, the Class, series and number of all Shares which are owned by such Member and by such Member Associated Person, if any, and the nominee holder for, and number of, Shares owned beneficially but not of record by such Member and by any such Member Associated Person; (D) as to the Member giving the notice and any Member Associated Person covered by clauses (B) or (C) of this Section 12.10(a)(ii), the name and address of such Member, as they appear on the Membership List and current name and address, if different, and of such Member Associated Person; and (E) to the extent known by the Member giving the notice, the name and address of any other Member supporting the nominee for election or reelection as a Director or the proposal of other business on the date of such Member’s notice.

(iii)       For purposes of this Section 12.10, “Member Associated Person” of any Member shall mean (A) any person controlling, directly or indirectly, or acting in concert with, such Member, (B) any Owner of Shares owned of record or beneficially by such Member and (C) any person controlling, controlled by or under common control with such Member Associated Person.

(b)           Special Meetings of Members. Only such business shall be conducted at a special meeting of Members as shall have been brought before the meeting pursuant to the Company’s notice of meeting. Nominations of individuals for election to the Board of Directors may be made at a special meeting of Members at which Directors are to be elected (i) pursuant to the Company’s notice of meeting, (ii) by or at the direction of the Board of Directors, or (iii) provided that the Board of Directors has determined that Directors shall be elected at such special meeting, by any Member who is a Record Holder both at the time of giving of notice provided for in this Section 12.10 and at the time of the special meeting, who is entitled to vote at the meeting and who complied with the notice procedures set forth in this Section 12.10. In the event the Company calls a special meeting of Members for the purpose of electing one or more individuals to the Board of Directors, any such Member may nominate an individual or individuals (as the case may be) for election as a Director as specified in the Company’s notice of meeting, if the Member’s notice required by Section 12.10(a)(ii) shall be delivered to the Secretary at the principal executive office of the Company not earlier than the 150th day prior to such special meeting and not later than 5:00 p.m., Eastern Time on the later of the 120th day prior to such special meeting or the 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. The public announcement of a postponement or adjournment of a special meeting shall not commence a new time period for the giving of a Member notice as described above.

(c)           General.

(i)       Upon written request by the Secretary or the Board of Directors or any committee thereof, any Member proposing a nominee for election as a Director or any proposal for other business that may be properly considered at a meeting of Members shall provide, within five Business Days of delivery of such request (or such other period as may be specified in such request), written verification, satisfactory, in the discretion of the Board of Directors or any committee thereof or any authorized officer of the Company, to demonstrate the accuracy of any information submitted by the Member pursuant to this Section 12.10. If a Member fails to provide such written verification within such period, the information as to which written verification was requested may be deemed not to have been provided in accordance with this Section 12.10.

(ii)      Only such individuals who are nominated in accordance with this Section 12.10 shall be eligible for election by Members as Directors, and only such business shall be conducted at a meeting of Members as shall have been brought before the meeting in accordance with this Section 12.10. The chairman of the meeting shall have the power to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with this Section 12.10.

(iii)       For purposes of this Section 12.10, (A) the “Date of Mailing of the Notice” shall mean the date of the proxy statement for the solicitation of proxies for election of Directors and (B) “Public Announcement” shall mean disclosure (1) in a press release reported by the Dow Jones News Service, Associated Press, Business Wire, PR Newswire or comparable news service or (2) in a document publicly filed or furnished by the Company with the Commission pursuant to the Exchange Act.

(iv)       Notwithstanding the foregoing provisions of this Section 12.10, a Member shall also comply with all applicable requirements of state law and of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 12.10. Nothing in this Section 12.10 shall be deemed to affect any right of a Member to request inclusion of a proposal in, nor the right of the Company to omit a proposal from, the Company’s proxy statement pursuant to Rule 14a-8 (or any successor provision) under the Exchange Act.

Section 12.11      Procedure for Election of Directors; Voting. The election of Directors submitted to Members at any meeting shall be decided by a plurality of the votes cast by the Members entitled to vote thereon. Except as otherwise provided by applicable law or this Agreement, all matters other than the election of Directors submitted to the Members at any meeting shall be decided by the affirmative vote of the holders of a majority of the then outstanding Shares entitled to vote thereon present in person or represented by proxy at the meeting of Members. The vote on any matter at a meeting, including the election of Directors, shall be by written ballot. Each ballot shall be signed by the Member voting, or by such Member’s proxy, and shall state the number of Shares voted.

Section 12.12      Inspectors of Elections. The Board of Directors, in advance of any meeting, may, but need not, appoint one or more individual inspectors or one or more entities that designate individuals as inspectors to act at the meeting or any adjournment thereof. If an inspector or inspectors are not appointed, the individual presiding at the meeting may, but need not, appoint one or more inspectors.

Section 12.13      Waiver of Notice. Whenever any notice is required to be given to any Member by the terms of this Agreement or pursuant to applicable law, a waiver thereof in writing, signed by the Person or Persons entitled to such notice, or a waiver thereof by electronic transmission by the Person or Persons entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the Members need be specified in any written waiver of notice or any waiver by electronic transmission of such meeting, unless specifically required by statute. Notice of any meeting of Members need not be given to any Member if waived by such Member either in a writing signed by such Member or by electronic transmission, whether such waiver is given before or after such meeting is held. If any such waiver is given by electronic transmission, the electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the Member. The attendance of any Person at any meeting shall constitute a waiver of notice of such meeting, except where such Person attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

Section 12.14      Remote Communication. For the purposes of this Agreement, if authorized by the Board of Directors in its sole discretion, and subject to such guidelines and procedures as the Board of Directors may adopt, Members and proxyholders may, by means of remote communication:

(a)       participate in a meeting of Members; and

(b)       to the fullest extent permitted by applicable law, be deemed present in person and vote at a meeting of Members, whether such meeting is to be held at a designated place or solely by means of remote communication; provided, however, that (i) the Company shall implement reasonable measures to verify that each Person deemed present and permitted to vote at the meeting by means of remote communication is a Member or proxyholder, (ii) the Company shall implement reasonable measures to provide such Members and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the Members, including an opportunity to read or hear the proceedings of the meeting substantially and concurrently with such proceedings, and (iii) if any Member or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Company.

Section 12.15 Member Action Without a Meeting. On any matter that is to be voted on, consented to or approved by Members, the Members may take such action without a meeting, without prior notice and without a vote, if a written Consent, setting forth the action so taken, shall be signed by Members having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all Members entitled to vote thereon were present and voted.

Section 12.16  Return on Capital Contribution. Except as otherwise provided in Article XX, no Member shall demand a return on or of its Capital Contributions.

Section 12.17  Member Compensation. No Member shall receive any interest, salary or draw with respect to its Capital Contributions or its Capital Account or for services rendered on behalf of the Company, or otherwise, in its capacity as a Member, except as otherwise provided in this Agreement.

Section 12.18  Limited Liability of Members. No Member shall be liable for any debts or obligations of the Company other than as provided in Section 17.1.

Section 12.19 Representation of Company. Each of the Members hereby acknowledges and agrees that the attorneys representing the Company and the Directors and their Affiliates do not represent and shall not be deemed under the applicable codes of professional responsibility to have represented or be representing any or all of the Members in any respect at any time. Each of the Members further acknowledges and agrees that such attorneys shall have no obligation to furnish the Members with any information or documents obtained, received or created in connection with the representation of the Company, the Directors and/or their Affiliates.

Section 12.20  Preemptive Rights. Except as may be provided by the Board of Directors, or as may otherwise be provided by contract approved by the Board of Directors, no holder of Shares shall, as such holder, have any preemptive right to purchase or subscribe for any additional Shares or any other Securities which the Company may issue or sell.

Section 12.21 Tender Offers. If any Person makes a tender offer, including a “mini-tender” offer, such Person must comply with all of the provisions set forth in Regulation 14D of the Exchange Act, including disclosure and notice requirements, that would be applicable if the tender offer was for more than 5% of the outstanding Shares; provided, however, that such documents are not required to be filed with the Securities and Exchange Commission. In addition, any such Person must provide notice to the Company at least 10 Business Days prior to initiating any such tender offer. Any Person who initiates a tender offer without complying with the provisions set forth above (a “Non-Compliant Tender Offer”), shall be responsible for all expenses incurred by the Company in connection with the enforcement of the provisions of this Section 12.21, including expenses incurred in connection with the review of all documents related to such tender offer. In addition, the Company may seek injunctive relief, including a temporary or permanent restraining order, in connection with any Non-Compliant Tender Offer. This Section 12.21 shall be of no force or effect with respect to any Shares that are then listed.

Section 12.22  Voting Rights of Members and Limitation on Powers of the Directors. The Members shall be entitled to vote only on the following matters specified in this Section 12.22.

(a)            Subject to the provisions of any Class or series of Shares then outstanding, the Liquidation Performance Unit, and the mandatory provisions of any applicable law or regulations, the Members shall have the right to take the actions specified in Sections 12.22(a)(i) – (iv) upon the affirmative vote or Consent of the Majority of the Members, without the concurrence of the Board of Directors:

(i)       amend this Agreement except as provided in Article XVIII hereof;

(ii)      dissolve the Company;

(iii)     elect or remove a Director;

(iv)     approve or disapprove of the Sale or series of Sales of all or substantially all the assets of the Company except for any such Sale or series of Sales in the ordinary course of business; and

Except with respect to the foregoing matters, no action taken by the Members at any meeting shall in any way bind the Board of Directors.

(b)            Without the affirmative vote or Consent of the Majority of the Members, the Board of Directors shall not:

(i)       amend this Agreement, other than as set forth in Article XVIII of this Agreement;

(ii)       dissolve the Company;

(iii)       (A) merge or consolidate with or into any limited liability company, corporation, statutory trust, business trust or association, real estate investment trust, common-law trust or any other unincorporated business, including a partnership, or (B) sell, lease or exchange all or substantially all of its assets, except for or a Distribution in-kind of assets to the Members or the Liquidation Performance Unitholder or any such Sale or series of Sales while liquidating the Company’s assets upon a Liquidation;

(iv)      cause the Company to make an election to be treated as other than a partnership for federal income tax purposes;

(v)       take any action that would cause the Company to be treated as being engaged in the active conduct of a lending, banking or financial business; or

(vi)      take any action on such other matters with respect to which the Board of Directors has adopted a resolution declaring that a proposed action is advisable and directed that the matter be submitted to the Members for approval or ratification.

Section 12.23      Member Vote Required In Connection With Certain Business Combinations Or Transactions.

(a)            Vote for Business Combinations. The affirmative vote of the majority of the holders of record of each Class of Shares then outstanding (excluding Shares owned by the Interested Member or any Affiliate or Associate of the Interested Member) shall be required to approve any Business Combination. Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser percentage may be specified, by applicable law or in any agreement with any securities exchange or otherwise.

(b)            Power of Continuing Directors. The Continuing Directors shall have the power and duty to determine, on the basis of information known to them after reasonable inquiry, all facts necessary to determine compliance with this Section 12.23, including (i) whether a Person is an Interested Member, the number of Shares of the Company that are Beneficially Owned by any Person, (ii) whether a Person is an Affiliate or Associate of another, and (iii) the net asset value of the Company’s outstanding Shares, and the good faith determination of the Continuing Directors on such matters shall be conclusive and binding for all the purposes of this Section 12.23.

(c)            No Effect on Fiduciary Obligations. Nothing contained in this Section 12.23 shall be construed to relieve the Directors or an Interested Member from any fiduciary obligation imposed by applicable law.

ARTICLE XIII

BOOKS AND RECORDS, REPORTS AND RETURNS

Section 13.1      Right of Inspection. As permitted hereunder, any Member or Liquidation Performance Unitholder and any designated representative thereof shall have the right, upon written request, subject to reasonable notice and at their own expense, to access the records of the Company during normal business hours, and may inspect and copy any of them for a reasonable charge. Inspection of the Company’s books and records by the office or agency administering the securities laws of a jurisdiction shall be provided upon reasonable notice during normal working hours.

Section 13.2      Access to Membership List.

(a)       The Membership List shall be maintained as part of the books and records of the Company and shall be available for inspection by any Member or Liquidation Performance Unitholder or any Member’s or Liquidation Performance Unitholder’s designated agent at the home office of the Company upon the request of such Member or Liquidation Performance Unitholder. For any of the purposes described below, the Membership List shall be updated at least quarterly to reflect changes in the information contained therein. A copy of such list, for any of the purposes described below, shall be mailed to any Member or Liquidation Performance Unitholder so requesting within 10 days of receipt by the Company of the request. The copy of the Membership List shall be printed in alphabetical order, on white paper, and in a readily readable type size (in no event smaller than 10-point type). The Company may impose a reasonable charge for postage costs and expenses incurred in reproduction pursuant to the Member’s or the Liquidation Performance Unitholder’s request. A Member may request a copy of the Membership List in connection with matters relating to Member’s voting rights and the exercise of Member rights under federal proxy laws.

(b)       If the Company neglects or refuses to exhibit, produce or mail a copy of the Membership List as requested, the Board of Directors shall be liable to any Member or the Liquidation Performance Unitholder requesting the list for the costs, including reasonable attorney’s fees, incurred by that Member or Liquidation Performance Unitholder for compelling the production of the Membership List, and for actual damages suffered by any Member or Liquidation Performance Unitholder by reason of such refusal or neglect. It shall be a defense that the actual purpose and reason for the requests for inspection or for a copy of the Membership List is to secure such list of Members or other information for the purpose of selling such list or copies thereof, or of using the same for a commercial purpose, other than in the interest of the applicant as a Member or Liquidation Performance Unitholder relative to the affairs of the Company. The Company may require the Member or Liquidation Performance Unitholder requesting the Membership List to represent that the list is not requested for a commercial purpose unrelated to the Member’s Membership Interest or Liquidation Performance Unitholder’s Liquidation Performance Unit interest in the Company. The remedies provided hereunder to Members or the Liquidation Performance Unitholder requesting copies of the Membership List are in addition to and shall not in any way limit other remedies available to Members or the Liquidation Performance Unitholder under federal law, or the laws of any state.

Section 13.3      Tax Information. The Company shall use commercially reasonable efforts, at the Company’s expense, to cause to be prepared and distributed to the Members and the Liquidation Performance Unitholder not later than 75 days after the end of the Company’s fiscal year, all information necessary for the preparation of the Members’ and the Liquidation Performance Unitholder’s federal income tax returns.

Section 13.4      Annual Report. The Company shall cause to be prepared at least annually, at Company expense, within 120 days after the end of the Company’s fiscal year, or such shorter period as may be required by law, an annual report, which will include financial statements audited and reported upon by the Company’s independent public accountants, and will contain: (a) a balance sheet as of the end of each fiscal year and statements of income, Members’ equity, and cash flow, for the year then ended, all of which shall be prepared in accordance with generally accepted accounting principles and accompanied by an auditor’s report containing an opinion of an independent certified public accountant; (b) a report of the activities of the Company during the period covered by the report; (c) where forecasts have been provided to the Members, a table comparing the forecasts previously provided with the actual results during the period covered by the report; and (d) a report setting forth Distributions to Members for the period covered thereby and separately identifying Distributions from: (i) Cash Flow from operations during the period, (ii) Cash Flow from operations during a prior period which have been held as reserves, (iii) proceeds from disposition of assets and reserves from the Gross Proceeds of the Offering originally obtained from the Members. The annual financial statements will contain or be accompanied by a complete statement of transactions with the Advisor and Greenbacker Group LLC or its Affiliates and of compensation and fees paid or payable by the Company to the Advisor or its Affiliates. In the case of reimbursed costs and expenses, the Board of Directors shall also prepare an allocation of the total amount of all such items and shall include support for such allocation to demonstrate how the Company’s portion of such total amounts were allocated between the Company and the Advisor. Such cost and expense allocation shall be reviewed by independent publicly registered accountants in connection with their audit of the financial statements of the Company for such Fiscal Year in accordance with the American Institute of Certified Public Accountants United States Auditing standards relating to special reports and such independent publicly registered accountants shall state that, in connection with the performance of such audit, such independent publicly registered accountants reviewed, at a minimum, the time records of, and the nature of the work performed by, individual employees of the Advisor and its Affiliates, the cost of whose services were reimbursed. The additional costs of the special review required by this Section 13.4 will be itemized by the independent publicly registered accountants and may be reimbursed to the Advisor and its Affiliates by the Company in accordance with this subparagraph only to the extent such reimbursement, when added to the cost for all administrative services rendered, does not exceed the competitive rate for such services as determined in such report.

Section 13.5      Quarterly Reports. If and for as long as the Company is required to file quarterly reports on Form 10-Q with the Securities and Exchange Commission, the information contained in each such report shall be furnished or made available to Members or the Liquidation Performance Unitholder (in a form and manner consistent with then-current requirements of the Securities and Exchange Commission) after such report is filed with the Securities and Exchange Commission. Such quarterly report on Form 10-Q shall be deemed to have been made available to Members upon filing with the Securities and Exchange Commission. If and when such reports are not required to be filed, each Member or the Liquidation Performance Unitholder will be furnished (in a form and manner consistent with then-current requirements of the Securities and Exchange Commission), within 60 days after the end of the first 6 months of the Company’s fiscal year, an unaudited financial report for that period including a balance sheet, a statement of income, a statement of members’ equity and a cash flow statement. Such reports shall also include such other information as is deemed reasonably necessary by the Directors to advise the Members or the Liquidation Performance Unitholder of the activities of the Company during the quarter covered by the report.

Section 13.6      Filings. The Company shall use commercially reasonable efforts to cause the income tax returns for the Company to be prepared and timely filed with the appropriate authorities (with due regard for any extension of time for filing any such income tax returns as elected by the Directors). The Company shall also use commercially reasonable efforts to cause to be prepared and timely filed, with appropriate federal and state regulatory and administrative bodies, all reports required to be filed with those entities under then current applicable laws, rules and regulations. The reports shall be prepared by the accounting or reporting basis required by the regulatory bodies. Any Member or Liquidation Performance Unitholder shall be provided with a copy of any of the reports upon request without expense to him or her. The Company shall file, with the Administrators for the various states in which this Company is registered, as required by such states, a copy of each report referred to in this Article XIII.

Section 13.7      Method of Accounting. The accrual method of accounting in accordance with accounting principles generally accepted in the United States and by the American Institute of Certified Public Accountants Audit and the Accounting Guide for Investment Companies, shall be used for both income tax purposes and financial reporting purposes; provided, however, the Directors reserve the right to change the method of accounting from time to time, provided that such change is permitted (under the Code and accounting principles generally accepted in the United States) and disclosed in a report publicly filed by the Company with the Securities and Exchange Commission or is disclosed in a written notice sent to Members.

ARTICLE XIV

ADVISOR

Section 14.1      Appointment and Initial Investment of Advisor. The Board of Directors hereby appoints GCM as the investment advisor of the Company. The term of retention of any Advisor shall not exceed an initial term of one year, although there is no limit to the number of times that a particular Advisor may be retained. The Advisor and its Affiliates have made an initial aggregate investment of $1,901,000 in the Company. The Advisor or any such Affiliate may not sell this initial investment while the Advisor remains the Advisor but may transfer the initial investment to other Affiliates.

Section 14.2      Supervision of Advisor Compensation and the Advisor.

(a)       The Board of Directors may exercise broad discretion in allowing the Advisor to administer and regulate the operations of the Company, to act as agent for the Company, to execute documents on behalf of the Company and to make executive decisions that conform to general policies and principles established by the Board of Directors. The Board of Directors shall monitor the Advisor to assure that the administrative procedures, operations and programs of the Company are in the best interests of the Company and are fulfilled and that (i) the expenses incurred are reasonable, (ii) all Front End Fees shall be reasonable and shall not exceed 18% of the Gross Proceeds of any offering, regardless of the source of payment, and (iii) the percentage of Gross Proceeds of any offering committed to Investment in Company Assets shall be at least 82%. All items of compensation to underwriters or dealers, including Selling Commissions, expenses, rights of first refusal, consulting fees, finders’ fees and all other items of compensation of any kind or description paid by the Company, directly or indirectly, shall be taken into consideration in computing the amount of allowable Front End Fees.

(b)       The Board of Directors is responsible for determining that compensation paid to the Advisor is reasonable in relation to the nature and quality of services performed and the investment performance of the Company. All agreements between the Advisor and the Company must be approved by a majority of the Independent Directors. The Board of Directors may consider all factors that they deem relevant in making these determinations.

Section 14.3      Fiduciary Obligations. Any investment advisory agreement with the Advisor shall provide that the Advisor has a fiduciary responsibility to the Company.

Section 14.4      Termination. The Advisor may not voluntarily withdraw from the Company without 120 days prior written notice. If the Advisor fails to give such notice, the withdrawing Advisor shall pay all expenses incurred as a result of its withdrawal.

Section 14.5      Organization and Offering Expenses Limitation. The Company shall reimburse the Advisor and its Affiliates for Organization and Offering Expenses incurred by the Advisor or its Affiliates; provided, however, that the total amount of all Organization and Offering Expenses shall be reasonable and shall be included in Front End Fees for purposes of the limit on such Front End Fees set forth in Section 14.2.

Section 14.6      Reimbursement for Operating Expenses.

(a)       Subject to Section 14.6(b) below, the Company may reimburse the Advisor or its Affiliates, at the end of each fiscal quarter, for goods and services, including impact monitoring services and Acquisition Expenses. The Advisor may be reimbursed for the administrative services necessary to the prudent operation of the Company; provided, the reimbursement shall be the lower of the Advisor’s actual cost or the amount the Company would be required to pay Persons other than the Advisor’s Affiliates for comparable administrative services in the same geographic location; and provided, further, that such costs are reasonably allocated to the Company on the basis of assets, revenues, time records or other method conforming with generally accepted accounting principles. Except as otherwise provided herein, no reimbursement shall be permitted for services for which the Advisor is entitled to compensation by way of a separate fee.

(b)       Excluded from the allowable reimbursement shall be: (i) rent or depreciation, utilities, capital equipment and similar items; and (ii) salaries, fringe benefits and similar items incurred or allocated to any Controlling Person of the Advisor. For purposes of this Section 14.6, “Controlling Person” means persons with responsibilities similar to those of an executive, or a member of the Board of Directors, or any person who holds more than 10% of the Advisor’s equity securities or who has the power to control the Advisor.

Section 14.7      Section 707 Compliance. Any fees paid to a Tax Member (including those pursuant to this Article XIV) shall be treated as payments governed by Section 707 of the Code.

Section 14.8      Exclusive Right to Sell Company Assets. The Company shall not give the Advisor or any of its Affiliates the exclusive right to sell assets for the Company.

Section 14.9      Internalization Transaction. Effective upon the closing of the Internalization Transaction, the Advisor has been acquired by the Company.

ARTICLE XV

INVESTMENT POLICIES AND LIMITATIONS

Section 15.1      Review of Policies. The Board of Directors, including the Independent Directors, shall review the investment and borrowing policies of the Company with sufficient frequency (and, upon Commencement of the Initial Public Offering, at least annually) to determine that the policies being followed by the Company at any time are in the best interests of its Members. Each such determination and the basis therefor shall be set forth in the minutes of the meetings of the Board of Directors.

Section 15.2      Certain Permitted Investments. Until such time as the Shares are Listed, the Company may invest in Joint Ventures with an Affiliated Person if a majority of Directors (including a majority of Independent Directors) not otherwise interested in the transaction, approve such investment as being fair and reasonable to the Company and on terms substantially similar to the terms of third parties making comparable investments.

Section 15.3      Reinvestment of Proceeds. Reinvestment of proceeds resulting from the sale or refinancing of a Company asset may take place if sufficient cash will be distributed to pay federal income tax, if any (assuming investors are in a specified tax bracket) created by the sale or refinancing of such asset. To the extent that any Cash Available for Distribution is reinvested, such reinvested cash shall not be considered “investments” in the Company for the purposes of calculating Capital Contributions. Except as provided by the applicable provisions of Article XIV of this Agreement, the Company will not pay, directly or indirectly, a commission or fee to the Sponsor in connection with the reinvestment of Cash Available for Distribution or of the proceeds of the resale, exchange or refinancing of Company assets.

Section 15.4      Investments in Other Programs.

(a)       The Company shall have the authority to invest in general partnerships or joint ventures with other publicly registered Affiliates of the Company if all of the following conditions are met: (i) the Affiliate and the Company have substantially identical investment objectives; (ii) there are no duplicate fees to the Advisor; (iii) the compensation payable by the general partnership or joint venture to the Advisor and the Sponsors of each Affiliate that invests in such partnership or joint venture is substantially identical; (iv) each of the Company and the Affiliate has a right of first refusal to buy if the other party wishes to sell assets held in the joint venture; (v) the investment of each of the Company and its Affiliate is on substantially the same terms and conditions; and (vi) any prospectus of the Company in use or proposed to be used when such an investment has been made or is contemplated discloses the potential risk of impasse on joint venture decisions since neither the Company nor its Affiliate controls the partnership or joint venture, and the potential risk that while the Company or its Affiliate may have the right to buy the assets from the partnership or joint venture, it may not have the resources to do so.

(b)       The Company shall have the authority to invest in general partnerships or joint ventures with Affiliates other than publicly registered Affiliates of the Company only if all of the following conditions are met: (i) the investment is necessary to relieve the Advisor from any commitment to purchase the assets prior to the closing of the offering period of the Company; (ii) there are no duplicate fees to the Advisor; (iii) the investment of each entity is on substantially the same terms and conditions; (iv) the Company has a right of first refusal to buy if the Advisor wishes to sell assets held in the joint venture; and (v) any prospectus of the Company in use or proposed to be used when such an investment has been made or is contemplated discloses the potential risk of impasse on joint venture decisions.

(c)       Other than as specifically permitted in subsections (a) and (b) above, the Company shall not invest in general partnerships or joint ventures with Affiliates.

ARTICLE XVI

CONFLICTS OF INTEREST

Section 16.1      Investments with Affiliates. The Company shall not invest in any asset or company in which the Advisor, any of the Directors or officers or any of their Affiliates has a direct economic interest without a determination by a majority of the Board of Directors (including a majority of the Independent Directors) that such an investment is fair and reasonable to the Company. In addition, with respect to any potential debt investment in a portfolio company in which a sub-advisor has an equity interest, the Advisor must determine, before the investment is made, that the procedures by which this potential debt investment is evaluated and priced are fair and reasonable.

Section 16.2      Voting of Shares Owned by Affiliates. The Advisor, the Sponsor, the Directors and officers, and their Affiliates may not vote their Shares regarding the removal of any of Affiliates or any other transaction between such Affiliates and the Company. All Shares owned by the Advisor, the Sponsor, the Directors and officers, and their Affiliates shall be excluded in determining the requisite percentage of interest in Shares necessary to approve a matter on which the Advisor, the Sponsor, the Directors and officers, and their Affiliates, as applicable, may not vote or Consent.

Section 16.3      Purchase of Assets from Affiliates. The Company shall not purchase assets from the Sponsor, the Advisor, the Directors or any of their Affiliates unless a majority of the Board of Directors (including a majority of the Independent Directors) not otherwise interested in the transaction determines that such transaction is fair and reasonable to the Company and at a price to the Company no greater than the cost of the assets to the Advisor or its Affiliates or such Director, unless there is substantial justification for any amount that exceeds such cost and such excess amount is determined to be reasonable. In no event shall the cost of such asset to the Company exceed its current appraised value.

Section 16.4      Sale of Assets to Affiliates. The Company shall not sell or lease assets to the Sponsor, the Advisor, the Directors or any of their Affiliates without a determination by a majority of the Board of Directors (including a majority of the Independent Directors) not otherwise interested in the transaction, that such transaction is fair and reasonable to the Company.

Section 16.5      Loans to Affiliates. Except for the advancement of funds pursuant to Section 17.3, no loans, credit facilities, credit agreements or otherwise shall be made by the Company to the Advisor or any Affiliate thereof.

Section 16.6      Other Transactions with Affiliates. The Company shall not engage in a transaction with an Affiliated Person unless a majority of the Board of Directors (including a majority of the Independent Directors) not otherwise interested in the transaction concludes that such transactions between the Company and the Sponsor, the Advisor, any of the Directors or any of their Affiliates are fair and reasonable to the Company and on terms and conditions not less favorable to the Company than those available from unaffiliated third parties. The terms pursuant to which any goods or services, are provided to the Company by the Advisor, shall be embodied in a written contract, the material terms of which must be fully disclosed to the Members.

Section 16.7      Rebates, Kickbacks and Reciprocal Arrangements.

(a)        No rebates or give-ups may be received by the Sponsor nor may the Sponsor participate in any reciprocal business arrangements which would circumvent the NASAA Omnibus Guidelines or the provisions contained in this Agreement.

(b)       The Sponsor may only pay underwriting compensation to a registered broker-dealer or other properly licensed Person.

Section 16.8      Commingling. The funds of the Company shall not be commingled with the funds of any other Person; provided, however, that the foregoing shall not prohibit the Advisor from establishing a master fiduciary account pursuant to which separate subtrust accounts are established for the benefit of Affiliated Programs, if Company funds are protected from claims of such other Programs and/or creditors. The foregoing prohibition shall not apply to investments described in Section 15.2.

Section 16.9      Lending Practices. The Company may not borrow money from the Sponsor, the Advisor, the Directors, or any of their Affiliates, unless a majority of the Board of Directors (including a majority of Independent Directors) not otherwise interested in such transaction approve the transaction as being fair, competitive, and commercially reasonable and no less favorable to the Company than loans between unaffiliated parties under the same circumstances.

Section 16.10      No Permanent Financing. The Advisor shall be prohibited from providing permanent financing for the Company. For purposes of this Section 16.10, “permanent financing” shall mean any financing with a term in excess of 12 months.

Section 16.11      No Exchange of Interests for Investments. The Company shall not acquire any assets in exchange for Shares or other indicia of ownership in the Company.

ARTICLE XVII

LIABILITY LIMITATION, INDEMNIFICATION AND TRANSACTIONS WITH THE COMPANY

Section 17.1      Limitation of Member Liability. The liability of each Member in such capacity shall be limited to the amount of such Member’s Capital Contribution and pro rata share of any undistributed Profits. Except as may otherwise be required by law, after the payment of all subscription proceeds for the Shares purchased by such Member, no Member shall have any further obligations to the Company, be subject to any additional assessment or be required to contribute any additional capital to, or to loan any funds to, the Company. No Member shall have any personal liability on account of any obligations and liabilities of, including any amounts payable by, the Company under or pursuant to, or otherwise in connection with, this Agreement or the conduct of the business of the Company.

Section 17.2      Limitation of Liability.

(a)       Each Director of the Company shall, in the performance of such Director’s duties, be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by the Advisor, or employees of the Advisor, or any of the officers of the Company, or committees of the Board of Directors, or by any other Person as to matters the Director reasonably believes are within such other Person’s professional or expert competence, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits or losses of the Company, or the value and amount of assets or reserves or contracts, agreements or other undertakings that would be sufficient to pay claims and obligations of the Company or to make reasonable provision to pay such claims or obligations, or any other facts pertinent to the existence and amount of the assets of the Company from which distributions to Members might properly be paid.

(b)       No Director shall be liable to the Company, any Subsidiary of the Company or the Members for monetary damages for any acts or omissions arising from the performance of any of such Director’s obligations or duties in connection with the Company, including any breach of fiduciary duty, except as follows: (i) for breach of the Director’s duty of loyalty to the Company or its Members, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, or (iii) for any transaction from which the Director derived an improper benefit. To the extent the provisions of this Agreement restrict or eliminate the duties and liabilities of a Director of the Company or the Members or the Advisor otherwise existing at law or in equity, the provisions of this Agreement shall replace such duties and liabilities.

(c)       To the fullest extent permitted by law, a Director of the Company shall not be liable to the Company, any Member or any other Person for: (i) any action taken or not taken as required by this Agreement; (ii) any action taken or not taken as permitted by this Agreement and, with respect to which, such Director acted on an informed basis, in good faith and with the honest belief that such action, taken or not taken, was in the best interests of the Company; or (iii) the Company’s compliance with an obligation incurred or the performance of any agreement entered into prior to such Director having become a Director of the Company.

(d)       Any Director shall not be liable to the Company or to any other Director or Member of the Company or any such other Person that is a party to or otherwise bound by this Agreement for breach of fiduciary duty for the Director’s good faith reliance on the provisions of this Agreement.

(e)       Except as otherwise required by the Act, the debts, obligations and liabilities of the Company shall be solely the debts, obligations and liabilities of the Company and no Director shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Director of the Company.

(f)       Notwithstanding anything to the contrary contained in paragraphs (a) through (e) above, the Company shall not provide that the Sponsor, a Director, the Advisor or any Affiliate of the Advisor (the “Indemnitee”) be held harmless for any loss or liability suffered by the Company, unless all of the following conditions are met:

(i)      The Indemnitee has determined, in good faith, that the course of conduct that caused the loss or liability was in the best interests of the Company.

(ii)     The Indemnitee was acting on behalf of or performing services for the Company.

(iii)    Such liability or loss was not the result of (1) negligence or misconduct in the case that the Indemnitee is a Director (other than an Independent Director), GCM or an Affiliate of GCM or (2) gross negligence or willful misconduct in the case the Indemnitee is an Independent Director.

(iv)    Such agreement to hold harmless is recoverable only out of the Company’s assets and not from the Members.

Section 17.3      Indemnification.

(a)       The Company may indemnify, to the fullest extent permitted by law, each Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company), by reason of the fact that the Person is or was a Director, officer, employee, Tax Matters Partner or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the Person in connection with such action, suit or proceeding, if the Person acted in good faith and in a manner the Person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the Person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Person did not act in good faith and in a manner which the Person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the Person’s conduct was unlawful.

To the extent that a present or former Director or officer of the Company has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in this Section 17.3(a), or in defense of any claim, issue or matter therein, such Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Person in connection therewith.

Each of the Persons entitled to be indemnified for expenses and liabilities as contemplated above may, in the performance of his, her or its duties, consult with legal counsel and accountants at the Company’s expense, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided, that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company.

(b)       Any indemnification of a present or former Director, officer, employee or agent of the Company under Section 17.3(a) or Section 17.3(c) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the present or former Director, officer, employee or agent of the Company is proper in the circumstances because the Person has met the applicable standard of conduct set forth in Section 17.3(a) or pursuant to Section 17.3(c), as the case may be. Such determination shall be made, with respect to a Person who is a Director, officer, employee or agent of the Company at the time of such determination, (i) by a majority vote of the Directors who are not parties to any such action, suit or proceeding, even though less than a quorum, (ii) by a committee of such Directors designated by a majority vote of such Directors, even though less than a quorum, (iii) if there are no such Directors, or if a majority, even though less than a quorum, of such Directors so direct, by independent legal counsel in a written opinion, or (iv) by the Members. The indemnification, and the advancement of expenses incurred in defending an action, suit or proceeding prior to its final disposition, provided by or granted pursuant to this Agreement shall not be exclusive of any other right which any Person may have or hereafter acquire under any statute, other provision of this Agreement, vote of Members or Independent Directors or otherwise. No repeal, modification or amendment of, or adoption of any provision inconsistent with, this Section 17.3, nor, to the fullest extent permitted by applicable law, any modification of law, shall adversely affect any right or protection of any Person granted pursuant hereto existing at, or with respect to any events that occurred prior to, the time of such repeal, amendment, adoption or modification. The indemnification and advancement of expenses provided by, or granted pursuant to, this Agreement shall, unless otherwise provided when authorized or ratified, continue as to a Person who has ceased to be a Director, officer, employee or agent of the Company and shall inure to the benefit of the heirs, executors and administrators of such a Person.

(c)       The Company may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, and rights to be paid by the Company the expenses incurred in defending any such action, suit or proceeding in advance of its final disposition, to any Person who is or was an employee or agent of the Company or any Subsidiary of the Company (other than those Persons indemnified pursuant to Section 17.3(a)) and to any Person who is or was serving at the request of the Company or a Subsidiary of the Company as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by the Company or a Subsidiary of the Company, to the fullest extent of the provisions of this Agreement with respect to the indemnification and advancement of expenses of directors, officers, employees, and agents of the Company. The payment of any amount to any Person pursuant to this Section 17.3(c) shall subrogate the Company to any right such Person may have against any other Person.

(d)       To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by a Director, officer, employee or agent of the Company in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Person to repay such amount if it shall ultimately be determined that such Person is not entitled to be indemnified by the Company as authorized in this Section 17.3.

With respect to any Person who is a present or former Director, officer, employee or agent of the Company, any undertaking required by this Section 17.3(d) shall be an unlimited general obligation but need not be secured and shall be accepted without reference to financial ability to make repayment; provided, however, that such present or former Director, officer, employee or agent of the Company does not transfer assets with the intent of avoiding such repayment.

(e)         The indemnification and advancement provided in this Section 17.3 is intended to comply with the requirements of, and provide indemnification and advancement rights substantially similar to those that may be available to directors, officers, employees and agents of corporations incorporated under, the DGCL as it relates to the indemnification of officers, directors, employees and agents of a Delaware corporation and, as such (except to the extent greater rights are expressly provided in this Agreement), the parties intend that they should be interpreted consistently with the provisions of, and jurisprudence regarding, the DGCL.

(f)         Any notice, request or other communications required or permitted to be given to the Company under this Section 17.3 shall be in writing and either delivered in person or sent by facsimile, electronic mail, overnight mail or courier service, or certified or registered mail, postage prepaid, return receipt requested, to the Secretary and shall be effective only upon receipt by the Secretary, as the case may be.

(g)         To the fullest extent permitted by the law of the State of Delaware, each Director, officer, employee and agent of the Company agrees that all actions for the advancement of expenses or indemnification brought under this Section 17.3 or under any vote of Members or Independent Directors or otherwise shall be a matter to which Section 18-111 of the Act shall apply and which shall be brought exclusively in the Court of Chancery of the State of Delaware. Each of the parties hereto agrees that the Court of Chancery of the State of Delaware may summarily determine the Company’s obligations to advance expenses (including attorneys’ fees) under this Section 17.3.

(h)          Notwithstanding anything to the contrary contained in paragraphs (a) to (g) above, the Company shall not provide indemnification for any loss, liability or expense arising from or out of an alleged violation of federal or state securities laws by such party unless one or more of the following conditions are met: (i) there has been a successful adjudication on the merits of each count involving alleged material securities law violations as to the Indemnitee, (ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the Indemnitee; or (iii) a court of competent jurisdiction approves a settlement of the claims against the Indemnitee and finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the Securities and Exchange Commission and of the published position of any state securities regulatory authority in which Securities were offered or sold as to indemnification for violations of securities laws.

(i)           The Company may not incur the cost of that portion of liability insurance which insures the Advisor or its Affiliates for any liability as to which the Advisor or its Affiliates is prohibited from being indemnified under this section.

(j)           The advancement of Company funds to the Advisor or its Affiliates for reasonable legal expenses and other costs incurred as a result of any legal action for which indemnification is being sought is permissible only if all of the following conditions are satisfied:

(i)       The legal action relates to acts or omissions with respect to the performance of duties or services on behalf of the Company or its Subsidiaries.

(ii)       The Advisor or its Affiliates undertake to repay the advanced funds to the Company, together with the applicable legal rate of interest thereon, in cases in which found not to be entitled to indemnification.

Section 17.4      Express Exculpatory Clauses in Instruments. Neither the Members nor the Directors, officers, employees or agents of the Company shall be liable under any written instrument creating an obligation of the Company by reason of their being Members, Directors, officers, employees or agents of the Company, and all Persons shall look solely to the Company’s assets for the payment of any claim under or for the performance of that instrument. The omission of the foregoing exculpatory language from any instrument shall not affect the validity or enforceability of such instrument and shall not render any Member, Director, officer, employee or agent liable thereunder to any third party, nor shall the Directors or any officer, employee or agent of the Company be liable to anyone as a result of such omission.

ARTICLE XVIII

AMENDMENTS

Section 18.1      Amendments by the Board of Directors. Subject to Sections 18.2 and 18.3 of this Agreement and all applicable law, this Agreement may be amended, at any time and from time to time, by the Board of Directors without the Consent of the Majority of the Members to effect any change in this Agreement for the benefit or protection of the Members or the Liquidation Performance Unitholder, or as otherwise permitted by this Agreement, including:

(a)       to add to the representations, duties or obligations of the Board of Directors or to surrender any right or power granted to the Board of Directors herein;

(b)       to create any Class or series of Shares, to increase the number of the Company’s authorized Shares or to issue additional Shares of authorized by unissued Shares;

(c)       to cure any ambiguity, to correct or supplement any provision herein that may be inconsistent with any other provision herein or to add any other provision with respect to matters or questions arising under this Agreement that will not be inconsistent with the terms of this Agreement;

(d)       to preserve the status of the Company as a “partnership” under the Act or any comparable law of any other state in which the Company may be required to be qualified;

(e)       to ensure that the Company will not be treated as an association or publicly traded partnership taxable as a corporation for federal income tax purposes.

(f)       to delete or add any provision of or to this Agreement required to be so deleted or added by the staff of the Securities and Exchange Commission, by any other federal or state regulatory body or other agency (including any “blue sky” commission) or by any government administrator or similar such official;

(g)       to permit the Shares to fall within any exemption from the definition of “plan assets” contained in Section 2510.3-101 of Title 29 of the Code of Federal Regulations;

(h)       if the Company is advised by counsel, by the Company’s accountants or by the IRS that any allocations of income, gain, loss or deduction provided for in this Agreement are unlikely to be respected for federal income tax purposes, to amend the allocation provisions of this Agreement, in accordance with the advice of such counsel, such accountants or the IRS, to the minimum extent necessary to effect as nearly as practicable the plan of allocations and distributions provided in this Agreement; and

(i)       to change the name of the Company or the location of its principal office.

Section 18.2      Amendments with the Consent of the Majority of the Members. In addition to the amendments permitted to be made by the Board of Directors pursuant to Section 18.1, the Board of Directors may propose to the Members, in writing, any other amendment to this Agreement. The Board of Directors may include in any such submission a statement of the purpose for the proposed amendment and of the Manager’s opinion with respect thereto. Upon the Consent of the Majority of the Members, such amendment shall take effect; provided, however, that no such amendment shall increase the liability of any Member or adversely affect in a disproportionate manner (other than any disproportionate results that are due to a difference in relative number of Shares owned) any Member’s share of distributions of cash or allocations of Profits or Losses for tax purposes or of any investment tax credit amounts of the Company without in each case the Consent of each Member affected thereby;

Section 18.3      Amendments With The Consent of the Liquidation Performance Unitholder. Any amendment to this Agreement as provided herein that adversely affects the interests of the Liquidation Performance Unitholder shall be subject to the Consent of the Liquidation Performance Unitholder.

ARTICLE XIX

ROLL-UP TRANSACTIONS

Section 19.1      In connection with any proposed Roll-Up Transaction, an appraisal of all of the Company’s assets shall be obtained from an Independent Expert. The Company’s assets shall be appraised on a consistent basis, and the appraisal shall be based on the evaluation of all relevant information and shall indicate the value of the assets as of a date immediately prior to the announcement of the proposed Roll-Up Transaction. The appraisal shall assume an orderly liquidation of the assets over a 12-month period. The terms of the engagement of the Independent Expert shall clearly state that the engagement is for the benefit of the Company and the Members. A summary of the appraisal, indicating all material assumptions underlying the appraisal, shall be included in a report to Members in connection with a proposed Roll-Up Transaction. If the appraisal will be included in a prospectus used to offer the securities of a Roll-Up Entity, the appraisal will be filed as an exhibit to the registration statement with the Securities and Exchange Commission and with any state where such securities are registered. In connection with a proposed Roll-Up Transaction, the Person sponsoring the Roll-Up Transaction shall offer to holder of Shares who vote against the proposed Roll-Up Transaction the choice of:

(a)       accepting the securities of a Roll-Up Entity offered in the proposed Roll-Up Transaction; or

(b)            one of the following:

(i)       remaining as Members of the Company and preserving their interests therein on the same terms and conditions as existed previously; or

(ii)       receiving cash in an amount equal to the Members’ pro rata share of the appraised value of the net assets of the Company.

Section 19.2      The Company is prohibited from participating in any proposed Roll-Up Transaction:

(a)            that would result in the holder of Shares having voting rights in a Roll-Up Entity that are less than the rights provided for in Section 12.22(a) of this Agreement;

(b)           which includes provisions that would operate as a material impediment to, or frustration of, the accumulation of Shares by any purchaser of the securities of the Roll-Up Entity (except to the minimum extent necessary to preserve the tax status of the Roll-Up Entity), or which would limit the ability of an investor to exercise the voting rights of its securities of the Roll-Up Entity on the basis of the number of Shares held by that investor;

(c)           in which investor’s rights to access of records of the Roll-Up Entity will be less than those required by the laws of the state in which the Roll-Up Entity was formed; or

(d)           in which any of the costs of the Roll-Up Transaction would be borne by the Company if the Roll-Up Transaction is rejected by the holders of Shares.

ARTICLE XX

DURATION AND DISSOLUTION OF THE COMPANY

Section 20.1      Duration. The Company shall continue perpetually unless terminated pursuant to Section 20.3 or pursuant to any applicable provision of the Act.

Section 20.2      Authority of Directors. Subject to the provisions of any Class or series of Shares at the time outstanding, the Board of Directors shall have the power to dissolve or liquidate the Company; provided, however, that except as otherwise permitted by law, such action shall have been approved, at a meeting of the Members called for that purpose, by the affirmative vote of the holders of not less than a majority of the Shares then outstanding and entitled to vote thereon (other than a sale in the ordinary course of the Company’s business, as to which no such vote is required).

Section 20.3      Dissolution.

(a)            Events Causing Dissolution. The Company shall be dissolved upon the happening of any of the following events (each a “Dissolution Event”):

(i)       the adoption of a resolution by a majority vote of the Board of Directors approving the dissolution of the Company and the approval of such action by the affirmative vote of Members as provided in Section 20.2; or

(ii)      the Sale of all or substantially all of the assets of the Company; or

(iii)     the operations of the Company shall cease to constitute legal activities under the Act or any other applicable law; or

(iv)       any other event which causes the dissolution or winding-up of the Company under the Act to the extent not otherwise provided herein.

(b)            Winding-Up of the Company. Upon the occurrence of a Dissolution Event, the winding-up of the Company and the termination of its existence shall be accomplished as follows:

(i)       The Board of Directors shall proceed to wind up the affairs of the Company and all of the powers of the Board of Directors under this Agreement shall continue, including the powers to fulfill or discharge the Company’s contracts, collect its assets, sell, convey, assign, exchange, transfer or otherwise dispose of all or any part of the remaining property of the Company to one or more persons at public or private sale for consideration which may consist in whole or in part of cash, securities or other property of any kind, discharge or pay its liabilities and do all other acts appropriate to liquidate its business;

(ii)       In connection with the winding up of the affairs of the Company, the Board of Directors shall liquidate the assets as promptly as is consistent with obtaining current fair market value of such assets;

(iii)       After paying or adequately providing for the payment of all liabilities, and upon receipt of such releases, indemnities and agreements as they deem necessary for their protection, the Company may distribute the remaining assets of the Company among the Members and the Liquidation Performance Unitholder, in accordance with Section 9.2(a), so that after payment in full or the setting apart for payment of such preferential amounts, to the extent that such distribution is consistent with the Act or any provision of this Agreement or other applicable law; and

(iv)       Upon completion of the distribution of the Company property as provided in Section 20.3(c), the Board of Directors shall cause the filing of a certificate of cancellation with the Secretary of State of the State of Delaware and of all qualifications and registrations of the Company as a foreign limited liability company in jurisdictions in which the Company shall be qualified to transact business, and shall take such other actions as may be necessary to terminate the Company.

(c)            Application of Liquidation Proceeds Upon Dissolution. Following the occurrence of any Dissolution Event, the proceeds of liquidation and the other assets of the Company shall be applied as follows and in the following order of priority:

(i)       first, to the payment of creditors of the Company in order of priority as provided by law, except obligations to Members or their Affiliates;

(ii)       next, to the setting up of any reserve that the Board of Directors (or such other Person effecting the winding-up) shall determine is reasonably necessary for any contingent or unforeseen liability or obligation of the Company or the Members; such reserve may, in the sole and absolute discretion of the Board of Directors (or such other Person effecting the winding up) be paid over to an Escrow Agent selected by it to be held in escrow for the purpose of disbursing such reserve in payment of any of the aforementioned contingencies, and at the expiration of such period as the Board of Directors (or such other Person effecting the winding-up) may deem advisable, to distribute the balance thereafter remaining as provided in clauses (iii)-(v) of this Section 20.3(c).

(iii)       next, to the payment of all obligations to the Members in proportion to, and to the extent of advances made by, each Member pursuant to the provisions of this Agreement;

(iv)       next, to the payment of all reimbursements to which the Board of Directors or any of its Affiliates may be entitled pursuant to this Agreement; and

(v)       thereafter, to the Members, within the time period specified in Treasury Regulations Section 1.704-1(b)(2) (ii)(b)(2), the order and priority set forth in Section 9.1.

ARTICLE XXI

MISCELLANEOUS

Section 21.1      Covenant to Sign Documents. Each Member covenants, for himself or herself and his or her successors and assigns, to execute, with acknowledgment or verification, if required, any and all certificates, documents and other writings which may be necessary or expedient to form the Company and to achieve its purposes, including the Certificate and all amendments thereto, and all such filings, records or publications necessary or appropriate laws of any jurisdiction in which the Company shall conduct its business.

Section 21.2      Notices. Except as otherwise expressly provided for in this Agreement, all notices which any Member may desire or may be required to give any other Members shall be in writing and shall be deemed duly given when delivered personally or when deposited in the United States mail, first-class postage pre-paid.

Notices to Members shall be addressed to the Members at the last address shown on the Company records. Notices to the Directors or to the Company shall be delivered to the Company’s principal place of business, as set forth in Article IV above or as hereafter charged as provided herein.

Section 21.3      Entire Agreement. This Agreement constitutes the entire Agreement between the parties and supersedes any and all prior agreements and representations, either oral or in writing, between the parties hereto with respect to the subject matter contained herein.

Section 21.4      Waiver. No waiver by any party hereto of any breach of, or default under, this Agreement by any other party shall be construed or deemed a waiver of any other breach of or default under this Agreement, and shall not preclude any party from exercising or asserting any rights under this Agreement with respect to any other.

Section 21.5      Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

Section 21.6      Application of Delaware law. This Agreement and the application or interpretation thereof shall be governed, construed, and enforced exclusively by its terms and by the law of the State of Delaware applicable to contracts to be made and performed entirely in such state.

Section 21.7      Captions. Section titles or captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement.

Section 21.8      Number and Gender. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders.

Section 21.9      Counterparts. This Agreement may be executed in counterparts, any or all of which may be signed by a Director on behalf of the Members as their attorney-in-fact.

Section 21.10    Waiver of Action for Partition. Each of the parties hereto irrevocably waives during the term of the Company any right that it may have to maintain any action for partition with respect to any property of the Company or to cause the Company to be dissolved or liquidated.

Section 21.11    Assignability. Each and all of the covenants, terms, provisions and arguments herein contained shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto, subject to the requirements of Article X and XI.

Section 21.12    No Third Party Beneficiaries. For the avoidance of doubt, except for the Indemnitees, there are no intended or unintended third party beneficiaries of this Agreement (it being understood that each Indemnitee is an express third party beneficiary with respect to the provisions of this Agreement applicable to them as if they were parties to this Agreement).

[signature page follows]

IN WITNESS WHEREOF, the undersigned has caused this Fifth Amended and Restated Limited Liability Company Operating Agreement to be signed, and attested to, on this 19th day of May, 2022.

[Signature Page to Fifth Amended and Restated Limited Liability Company Operating Agreement of

Greenbacker Renewable Energy Company LLC]

[Signature Page to Fifth Amended and Restated Limited Liability Company Operating Agreement of

Greenbacker Renewable Energy Company LLC]

[Signature Page to Fifth Amended and Restated Limited Liability Company Operating Agreement of

Greenbacker Renewable Energy Company LLC]

Exhibit 4.1

CERTIFICATE OF SHARE DESIGNATION OF
CLASS EO COMMON SHARES OF
GREENBACKER RENEWABLE ENERGY COMPANY LLC

This Certificate of Designation (this “Certificate of Designation”) is made as of May 19, 2022 by the board of directors (the “Board of Directors”) of Greenbacker Renewable Energy Company, LLC, a Delaware limited liability company (the “Company”).

WHEREAS, pursuant to Section 7.3 of the Fifth Amended and Restated Limited Liability Company Operating Agreement (as amended or amended and restated from time to time, the “Operating Agreement”), dated as of May 19, 2022, the Board of Directors may, by resolution, (a) designate a class or series of Shares and distinguish it from all other classes and series of Shares of the Company, (b) specify the number of Shares to be included in the class or series, and (c) set or change the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications and terms and conditions of redemption for each class or series;

WHEREAS, in accordance with Section 7.3 of the Operating Agreement, this Certificate of Designation will be annexed to, and constitute a part of, the Operating Agreement; and

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Board of Directors resolves and agrees as follows:

Article I

Definitions

Section 1.1        For purposes of this Certificate of Designation, the following terms will have the respective meanings indicated in this Article I, and capitalized terms used but not otherwise defined herein will have the respective meanings ascribed thereto in the Operating Agreement:

“Affiliate” shall have the meaning set forth in the Operating Agreement; provided that, for the avoidance of doubt, the entities contributed to the Company pursuant to the Internalization shall constitute Affiliates of the Company upon the closing of the Internalization.

“Benchmark Targets” means, collectively, those certain quarterly targets related to benchmark annualized quarter-end Run Rate Revenue objectives from new fundraising and set forth in Schedule A attached hereto, and comprised of the Tranche 1 Benchmark Target, the Tranche 2 Benchmark Target, and the Tranche 3 Benchmark Target (each as defined in Schedule A attached hereto).

“Board of Directors” has the meaning set forth in the recitals hereto.

“Certificate of Designation” has the meaning set forth in the recitals hereto.

“Class EO Common Shares” has the meaning set forth in Section 2.1.

“Company” has the meaning set forth in the recitals hereto.

“Contribution Agreement” means that certain Contribution Agreement, by and between the Company and Group LLC, dated as of May 19, 2022.

“Earnout Period” means the period of time commencing on the closing date of the Internalization, and ending on December 31, 2025 – which will be extended to December 31, 2026 if the Run Rate Revenue exceeds 50% of the Tranche 3 Benchmark Target (as set forth in Schedule A attached hereto) on or before December 31, 2025.

“Earnout Shares” means Class EO Common Shares, par value $0.001 per share, of the Company. The Earnout Shares will be divided into three separate series to be designated as “Tranche 1 Earnout Shares,” “Tranche 2 Earnout Shares,” and “Tranche 3 Earnout Shares.”

“GREC Corp” means Greenbacker Renewable Energy Corporation, a Maryland corporation.

“Group LLC” means Greenbacker Group LLC, a Delaware limited liability company.

“Internalization” means that certain internalization transaction contemplated by the Contribution Agreement.

“Liquidity Event” means any transaction or series of related transactions the result of which is: (a) the acquisition by any person or group (as defined under Section 13 of the Securities Exchange Act of 1934, as amended) of direct or indirect beneficial ownership of securities representing 50% or more of the combined voting power of the then outstanding securities of, or economic interest in, the Company or GREC Corp; (b) any merger, consolidation, business combination, recapitalization, reorganization, sale of assets or other similar transaction, however effected, resulting in (i) any person or group (as defined under Section 13 of the Securities Exchange Act of 1934, as amended) or (ii) or any person or persons who immediately prior to such transaction did not own securities representing 50% or more of the combined voting power of then outstanding securities of, or economic interest in, the Company or GREC Corp, acquiring (A) 50% or more of the combined voting power of the then outstanding securities the Company or GREC Corp, or the surviving or successor entity immediately after such combination, or (B) 50% or more of the economic interest in the Company or GREC Corp, or the surviving or successor entity immediately after such combination; (c) any direct or indirect sale or other transfer, in one or a series of related transactions, of 50% or more of the assets of the Company or GREC Corp and their respective subsidiaries, taken as a whole; or (d) a Liquidation (as such term is defined in the Operating Agreement) of the Company or a similar transaction involving GREC Corp.

“Liquidity Event Value” means the value determined by the Board of Directors acting in good faith per Class P-I Share that would be achieved, result or follow from such Liquidity Event on a pro forma basis, assuming that, immediately prior to such Liquidity Event, all Earnout Shares had achieved Participating Earnout Share status and were therefore entitled to their pro rata share of such value per Class P-I Share that would be achieved, result or follow from, such Liquidity Event, in each case, with such value achieved per Class P-I Share calculated net of any fees, expenses or other costs.

“Net Annualized Management Fees” means the gross daily management fees calculated at the close of each quarter, less daily rebates, as annualized.

“Non-Triggering Event” has the meaning set forth in Section 3.2(c).

“Participating Earnout Shares” means those Earnout Shares of a specific series for which Benchmark Targets have been met or have otherwise achieved the status of Participating Earnout Shares upon the occurrence of certain Liquidity Events as described in Section 3.2 below.

“Operating Agreement” has the meaning set forth in the recitals hereto.

“Qualified Liquidity Event” has the meaning set forth in Section 3.2.

“Reference Price” means $8.798 per Class P-I Share, subject to adjustment as provided in Article IV below.

“Representatives” means, as applicable to any Person, any and all directors, officers, managers, employees, consultants, financial advisors, counsel, accountants, and other agents of such Person, and in each case which is subject to a confidentiality agreement or confidentiality obligations.

“Run Rate Revenue” means that certain run rate revenue of the Company or GREC Corp from the sum of (a) third party management fees calculated at the close of each quarter during the Earnout Period, in accordance with the following: (i) the Net Annualized Management Fees for each of (1) Greenbacker Development Opportunities Fund I, L.P., Greenbacker Renewable Opportunity Zone Fund LLC, and Greenbacker Renewable Energy Company II, LLC (in each case to the extent resulting from additional fundraising after December 31, 2021), and (2) from any other funds formed or created after the date hereof for which the Company or its applicable subsidiaries are entitled to receive management and incentive fees (each an “Eligible Fund”), plus (ii) the last 12 months net incentive fees realized for each Eligible Fund’s actual incentive fees earned following the closing of the Internalization and (b) an amount equal to the product of (i) additional capital raised following the Closing of the Internalization (excluding proceeds from any initial public offering of GREC Corp (or its successor), but including additional net proceeds from equity capital raised by GREC Corp (or its successor) following such initial public offering) and (ii) 1.5% per annum.

“Target Capital Account” has the meaning set forth in Section 3.1(d).

Article II

CLASS EO COMMON SHARES

Section 2.1         Creation and Designation. A new class of Common Shares is hereby created, and designated as “Class EO Common Shares.” An aggregate of 13,071,153 shares are designated as Class EO Common Shares and are referred to this Certificate of Designation as “Earnout Shares.”

Section 2.2         Separate Class. The Class EO Common Shares are considered a separate class of Common Shares for purposes of the Operating Agreement, entitling the holders thereof to the rights and obligations as specified in this Certificate of Designation and, upon achieving Participating Earnout Share status, to the rights and obligations applicable to Class P-I Shares as specified in the Operating Agreement, and as modified by this Certificate of Designation.

Section 2.3         Separate Series. The Earnout Shares will be divided into three separate series to be designated as “Tranche 1 Earnout Shares,” “Tranche 2 Earnout Shares,” and “Tranche 3 Earnout Shares.” Each separate series of Earnout Shares shall share the same rights and obligations, except that each series of Earnout Shares will become Participating Earnout Shares only upon the achievement of the Benchmark Targets applicable to such Series as set forth in Schedule A attached hereto or have achieved the status of Participating Earnout Shares upon the occurrence of certain Liquidity Events as described in Section 3.2 below.

Article III 

ACHIEVEMENT OF PARTICIPATION STATUS

Section 3.1           How Earnout Shares Become Participating Earnout Shares.

(a)          Benchmark Targets. Upon satisfaction of the Benchmark Targets applicable to a specific Series of Earnout Shares as set forth in Schedule A attached hereto, the corresponding number of Earnout Shares from that Series will automatically become Participating Earnout Shares.

(b)          Expiration of the Earnout Period. Earnout Shares that have not achieved Participating Earnout Share status by the expiration of the Earnout Period in accordance with this Certificate of Designation will no longer be eligible to achieve such status.

(c)          Rights of Participating Earnout Shares. Subject to achieving the Target Capital Account as set forth in Section 3.1(d), all Earnout Shares that have achieved status as Participating Earnout Shares will have equivalent economic and other rights as the Class P-I Shares, will vote together as a single class with the Class P-I Shares on all matters submitted to holders of Class P-I Shares generally, will not have separate voting rights on any matters (other than amendments to the terms of the Participating Earnout Shares that affect such Participating Earnout Shares adversely and in a manner that is different from the terms of the Class P-I Shares), and will have the right to participate in all distributions payable by the Company, as if they were, and on a pari passu basis with, the Class P-I Shares for all purposes set forth in the Operating Agreement. For the avoidance of doubt, any Earnout Shares that have not achieved Participating Earnout Share status shall not be entitled to (i) vote with other Shares on matters submitted to the holders of Shares generally or (ii) receive any distributions made to any other holders of Shares (and shall not be entitled to any accrual of distributions prior to achieving Participating Earnout Share status). All Earnout Shares, whether Participating Earnout Shares or otherwise, shall be subject to the same transfer restrictions as other Shares as contemplated in Articles X and XI of the Operating Agreement.

(d)          Special Profit Allocation to Participating Earnout Shares. Notwithstanding Section 3.1(c), once any Earnout Shares become Participating Earnout Shares, all allocations of Profit for the year in which such Earnout Shares become Participating Earnout Shares (and, to the extent permitted by applicable law, for any prior year the U.S. federal income tax return in respect of which has not yet been filed) will first be allocated to such Participating Earnout Shares until each such Participating Earnout Share has a Capital Account equal to the average per share Capital Account of the Class I Shares immediately prior to the time of such allocation (the “Target Capital Account”). For avoidance of doubt, the allocation of Profit pursuant to the preceding sentence shall include the allocation of any Profit resulting from an adjustment of the Book Value of the Company Assets from any prior Book Value. Until the Participating Earnout Shares have a Capital Account equal to the Target Capital Account, the rights of the Participating Earnout Shares to distributions shall be limited to the positive Capital Account of each such Participating Earnout Share. Following the date hereof, the Company shall adjust the Book Value of its assets to fair market value in accordance with Treasury Regulation Section l.704-l(b)(2)(iv)(f), at any time that the Company's assets satisfy Treasury Regulation Section 1.704-1(b)(2)(iv)(f)(5)(v), on a monthly basis in connection with the computation of Company NAV, in addition to any time described in Section 8.5 of the Operating Agreement and any other time permitted by applicable law.

Section 3.2            Liquidity Events.

(a)           If, during the Earnout Period, there is a Liquidity Event, the Company shall, prior to the closing of such Liquidity Event, calculate the Liquidity Event Value. If such calculation of the Liquidity Event Value results in the value per Class P-I Share being equal to or greater than the Reference Price, all outstanding Earnout Shares shall become Participating Earnout Shares (and such Liquidity Event shall be referred to as a “Qualifying Liquidity Event”). If the foregoing calculation of the Liquidity Event Value yields a result that is less than the Reference Price, then only the number of Earnout Shares that would allow the value per Class P-I Share to be equal to or greater than the Reference Price shall become Participating Earnout Shares, with the Earnout Shares to become Participating Earnout Shares in such circumstances to first come from the Tranche 1 Earnout Shares (until all such series of shares become Participating Earnout Shares), next from the Tranche 2 Earnout Shares (until all such series of shares become Participating Earnout Shares), and finally from the Tranche 3 Earnout Shares, with the shares in each Series (in the case of only part of a Series becoming Participating Earnout Shares) to be selected on a pro rata basis based on the number of shares in that series held by each holder.

(b)         If, in connection with a Liquidity Event, Earnout Shares are entitled pursuant to the calculation of the Liquidity Event Value noted above to become Participating Earnout Shares, then immediately prior to the consummation of such Liquidity Event: (i) all such entitled Earnout Shares will be eligible to participate in such Liquidity Event and (ii) the Company will use its reasonable best efforts to take all actions necessary to ensure that such Earnout Shares will be eligible to share in such Liquidity Event as if such Earnout Shares had become Participating Earnout Shares as of immediately prior to the record or other date used by the Board of Directors for determining shareholders entitled to share in such Liquidity Event (but expressly conditioned on the closing thereof), with a view toward ensuring that the holders of such Earnout Shares will be given the opportunity to participate in the benefits of the Liquidity Event to the same extent as other holders of Class P-I Shares.

(c)         As a condition to consummating any Liquidity Event which does not result in all of the outstanding Earnout Shares becoming Participating Earnout Shares (a “Non-Triggering Event”), the Company or GREC Corp, as the case may be, will require the terms of such Liquidity Event to contain reasonably appropriate provisions such that the purchaser or surviving entity, as applicable, with respect to such Liquidity Event will: (i) assume the Company’s remaining obligations with respect to the remaining Earnout Shares under this Certificate of Designation (if not otherwise retained by the Company), and (ii) permit the holders of Earnout Shares to achieve the benefits of their ownership of such shares, adjusted in a manner reasonably determined by the Company in good faith to give effect to any applicable change in circumstances implemented in such Liquidity Event.

(d)         For the avoidance of doubt, following a Non-Triggering Event and during the remainder of the Earnout Period, the Company and any subsequent owner or surviving entity of the Company, as applicable, shall remain subject to the obligations set forth in this Section 3.2, Section 3.3, and Section 3.4 as if such Earnout Shares that did not become Participating Earnout Shares as a result of the Liquidity Event underlying such Non-Triggering Event remained outstanding.

Section 3.3          Conversion at the Option of the Holder of Participating Earnout Shares. Each holder of Participating Earnout Shares that have achieved the Target Capital Account, may, at such holder’s option, elect to convert any or all of the Participating Earnout Shares held by such holder into an equivalent number of Class P-I Shares, subject to adjustment as provided in Article IV below. In order to convert Participating Earnout Shares into Class P-I Shares, the converting holder shall provide written notice to the Company setting forth: (a) the full name of the holder, (b) a statement of the number of Participating Earnout Shares proposed to be converted by such holder into Class P-I Shares, and (c) any additional information reasonably requested by the Company in order to fulfill such request. The Participating Earnout Shares offered for conversion shall be converted into the applicable number of Class P-I Shares, effective, unless the Company and such holder agree otherwise, as of the month end following the date the conversion notice is received by the Company.

Section 3.4          Earnout Period Obligations.

(a)         During the Earnout Period, (i) the Company shall, and shall cause GREC Corp and its other Affiliates to: (A) provide Group LLC and its Representatives, reasonable access to all books and records and personnel of the Company, its Affiliates, and its subsidiaries, to audit the achievement of and progress toward any Benchmark Targets or otherwise relating to the annualized quarter-end Run Rate Revenue and all reported earnings; (B) maintain adequate books and records in a manner that will allow for the calculation of the Benchmark Targets; and (ii) neither the Company nor any of its Affiliates will discontinue or fail to provide reasonable funding for the Company's third party management business or take any other actions, or omit to take any other actions, for the primary purpose of or that would, without a good faith business reason unrelated to the results described in the following clauses, reasonably be expected to result in (I) thwarting or inhibiting the achievement of the Benchmark Targets, (II) reducing the amount of the Earnout Shares that become Participating Earnout Shares or (III) otherwise frustrating or avoiding the Company’s obligations under this Agreement with respect to the Earnout Shares. In addition, the Company shall take all reasonably available steps to cause any Participating Earnout Shares to achieve the Target Capital Account as soon as reasonably possible, including by causing the Company to revalue its assets at reasonable intervals as determined by the Board of Directors as permitted under applicable law if such revaluation would result in an allocation of Profits to any Participating Earnout Shares.

(b)         Each holder of Earnout Shares agrees that: (i) after the closing of the Internalization, except as provided in Section 3.4(a), the Company and its Affiliates have the right to operate the Company (and all components of its business) in the manner they believe to be prudent and to make any and all decisions with respect to the Company (and all components of its business) that the Board of Directors in its sole discretion believes are reasonable and in the best interests of the Company, including to change the operations and policies of the Company from those conducted or in place prior to the closing of the Internalization; (ii) the Company and its Affiliates are not obligated to operate the Company (or any component of its business) in order to achieve or maximize the number of Earnout Shares that become Participating Earnout Shares; (iii) the receipt of Participating Earnout Shares is speculative, there is no assurance that the holders of Earnout Shares will receive any Participating Earnout Shares and the Company has not promised nor assured any receipt of Participating Earnout Shares; (iv) nothing in this Certificate of Designation, the Operating Agreement, the Contribution Agreement, or otherwise will prohibit the Company and its Affiliates from engaging in any business or opportunity or acquiring, entering into joint ventures, investing in or otherwise cooperating with other Persons; and (v) the Company and the holders of Earnout Shares intend for the express provisions of this Section 3.4 to govern their contractual relationship with respect to the subject matter of this Section 3.4 and for neither any other provision of this Certificate of Designation nor any implied duty (fiduciary or otherwise) or obligation to apply to such relationship.

Article IV 

 
ANTIDILUTION PROTECTION

Section 4.1          Share Dividends and Share Splits. If the Company, at any time any Earnout Shares remain outstanding and have achieved or remain eligible to achieve Participating Earnout Share status: (a) pays a share dividend or otherwise makes a distribution or distributions on Class P-I Shares or Earnout Shares, (b) subdivides outstanding Class P-I Shares or Earnout Shares into a larger number of shares, (c) combines (including by way of reverse share split) outstanding Class P-I Shares or Earnout Shares into a smaller number of shares, or (d) issues by reclassification of Class P-I Shares or Earnout Shares any membership interests or shares in the Company, then the Reference Price used in Section 3.2, the number of Class P-I Shares that are issuable upon the conversion of Participating Earnout Shares and the number of Earnout Shares used in the calculation on Schedule A hereto shall be equitably adjusted as reasonably determined by the Company in good faith in a manner that prevents substantial dilution or enlargement of the economic rights of the holders of Participating Earnout Shares in comparison to the holders of the Class P-I Shares. Any adjustment made pursuant to this Section 4.1 shall become effective immediately after the record date for the determination of holders of Class P-I Shares or Earnout Shares entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination, or re-classification.

Section 4.2           Class P-I Share Pro Rata Distributions. If the Company, at any time while any Earnout Shares remain outstanding and have achieved or remain eligible to achieve Participating Earnout Share status, shall distribute to all holders of Class P-I Shares (and not to the holders of the Earnout Shares) evidences of its indebtedness or assets (including shares or other securities in GREC Corp) or rights or warrants to subscribe for or purchase any security, or pays a cash distribution to holders of Class P-I Shares in excess of the regular quarterly distribution payable by the Company then in each such case the Reference Price used in Section 3.2 and the number of Class P-I Shares that are issuable upon the conversion of Participating Earnout Shares shall be equitably adjusted as reasonably determined by the Company in good faith in a manner that prevents substantial dilution or enlargement of the economic rights of the holders of Participating Earnout Shares in comparison to the holders of the Class P-I Shares. In any of the above cases, the adjustments shall be described in a statement delivered to the holders of the Earnout Shares describing the portion of assets or evidences of indebtedness so distributed or such subscription rights applicable to one share of Class P-I Shares. Such adjustments shall be made whenever any such distribution is made and shall become effective immediately after the record date for such distribution.

Section 4.3           Other Adjustments.  In the case of other transactions not covered in Section 4.1 or Section 4.2 above, the Reference Price used in Section 3.2 and the number of Class P-I Shares that are issuable upon the conversion of Participating Earnout Shares shall also be adjusted in the manner reasonably determined by the Company in good faith to prevent substantial dilution or enlargement of the economic rights of the holders of Participating Earnout Shares in comparison to the holders of the Class P-I Shares.  In any such circumstance, the adjustment shall be described in a statement delivered to the holders of the Earnout Shares describing the reason for the adjustment, and shall become effective on the record date for the transaction giving rise to the adjustment or other appropriate date selected by the Company in the exercise of its reasonable discretion.

Section 4.4            Calculations. All calculations under this Article IV shall be made by the Company acting reasonably and in good faith and shall be calculated to the nearest cent or the nearest 1/100th of a share. At the request of Group LLC or its Representatives, the Company shall promptly provide to such holder, but in no event later than ten (10) Business Days after such request, a detailed summary reasonably supporting the calculations made to adjusting the Reference Price used in Section 3.2 and the number of Class P-I Shares that are issuable upon the conversion of Participating Earnout Shares.

Section 4.5           Notice to the Holders. Whenever an adjustment to the Reference Price used in Section 3.2 or the number of Class P-I Shares that are issuable upon the conversion of Participating Earnout Shares is made, the Company shall promptly mail to each holder of Earnout Shares a notice setting forth a brief statement of the facts requiring such adjustment, the amount and type of the adjustment, and the method by which such adjustment was calculated.

Section 4.6           Reservation of Shares. The Company will, at all times, keep available for issuance a sufficient number of unissued Class P-I Shares to permit the Company to issue Class P-I Shares upon conversion of Participating Earnout Shares, and the Company will take all actions required to increase the authorized number of Class P-I Shares if at any time there will be insufficient unissued Class P-I Shares to permit such issuance.

Article V 

Miscellaneous

Section 5.1        Construction. This Certificate of Designation will be construed and enforced in accordance with and governed by the laws of the State of Delaware, without regard to conflicts of law. If any provision of this Certificate of Designation is or becomes invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein will not be affected thereby. Each reference to “hereof,” “herein,” “hereunder,” and “hereby” will, from and after the date hereof, refer to the Operating Agreement as amended by this Certificate of Designation.

Section 5.2         Company Records. The Company will amend the Membership List to the Operating Agreement from time to time to the extent necessary to reflect accurately the grant and any subsequent redemption or conversion of, or other event having an effect on the ownership of, the Class EO Common Shares.

Section 5.3         Amendments. Any amendment to this Certificate of Designation or the Operating Agreement that affects the Participating Earnout Shares in a manner that is different from the terms of the Class P-I Shares or would reasonably be expected to have the purpose of avoiding or reducing the ability of the Earnout Shares to become Participating Earnout Shares, shall (i) require consent of the Board of Directors, and (ii) be subject to the prior written consent or approval of the majority of the outstanding Class EO Common Shares.

Section 5.4         No Impairment. The Company will not, by amendment of its Operating Agreement or this Certificate of Designation, or through any reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Certificate of Designation and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holders of the Class EO Common Shares against impairment.

Section 5.5         Survival. The provisions of this Certificate of Designation will survive any Liquidity Event to the extent any Earnout Shares remain capable of becoming Participating Earnout Shares.

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SCHEDULE A

BENCHMARK TARGETS

Section 1.1.          Number of Class EO Common Shares Per Tranche. The number of Class EO Common Shares allocable to each Tranche are as follows:

(a)          Tranche 1 Earnout Shares. The Tranche 1 Earnout Shares shall consist of an aggregate of 4,357,051 Class EO Common Shares.

(b)          Tranche 2 Earnout Shares. The Tranche 2 Earnout Shares shall consist of an aggregate of 4,357,051 Class EO Common Shares.

(c)          Tranche 3 Earnout Shares. The Tranche 3 Earnout Shares shall consist of 378,874 Class EO Common Shares (the “Class A Tranche 3 Earnout Shares”), and 3,978,177 Class EO Common Shares (the “Class B Tranche 3 Earnout Shares”), for an aggregate of 4,357,051 Class EO Common Shares, collectively.

Section 1.2.          Benchmark Targets By Tranche.

(a)          Tranche 1.

(i)         During the Earnout Period, if in any calendar quarter, the Run Rate Revenues for the Company and its subsidiaries equals or exceeds $12.5 million (the “Tranche 1 Benchmark Target”), 100% of the Tranche 1 Earnout Shares will automatically achieve the status of Participating Earnout Shares, in accordance with the terms of this Certificate of Designation.

(ii)        If the Run Rate Revenue during any calendar quarter exceeds $8,333,333 but is less than $12.5 million, 2,904,410 of the Tranche 1 Earnout Shares will automatically achieve the status of Participating Earnout Shares, with the balance of such Tranche 1 Earnout Shares becoming Participating Earnout Shares ratably up to $12.5 million of Run Rate Revenue, in accordance with the terms of this Certificate of Designation.

(b)          Tranche 2.

(i)         During the Earnout Period, if in any calendar quarter, the Run Rate Revenues for the Company and its subsidiaries equals or exceeds $25.0 million (the “Tranche 2 Benchmark Target”), 100% of the Tranche 2 Earnout Shares will automatically achieve the status of Participating Earnout Shares, in accordance with the terms of this Certificate of Designation.

(ii)        If the Run Rate Revenue during any calendar quarter exceeds $16,666,667 but is less than $25.0 million, 2,904,410 of the Tranche 2 Earnout Shares will automatically achieve the status of Participating Earnout Shares, with the balance of such Tranche 2 Earnout Shares becoming Participating Earnout Shares ratably up to $25.0 million of Run Rate Revenue, in accordance with the terms of this Certificate of Designation.

(c)          Tranche 3.

(i)         During the Earnout Period, if in any calendar quarter, the Run Rate Revenues for the Company and its subsidiaries equals or exceeds $37.5 million (the “Tranche 3 Benchmark Target”), 100% of the Tranche 3 Earnout Shares will automatically achieve the status of Participating Earnout Shares, in accordance with the terms of this Certificate of Designation.

(ii)        If the Run Rate Revenue during any calendar quarter exceeds $25.0 million but is less than $37.5 million, the Class A Tranche 3 Earnout Shares and 2,525,827 of the Class B Tranche 3 Earnout Shares will automatically achieve the status of Participating Earnout Shares, with the balance of such Class B Tranche 3 Earnout Shares becoming Participating Earnout Shares ratably up to $37.5 million of Run Rate Revenue, in accordance with the terms of this Certificate of Designation.

(d)           The Benchmark Targets are illustrated in the following table:

Section 1.3.          Earnout Statement. As promptly as reasonably practicable following each end of quarter during the Earnout Period, the Company shall deliver a written notice to Group LLC setting forth in reasonable detail: (a) evidence as to whether or not any Benchmark Targets have been earned during such past quarter, (b) the relevant Run Rate Revenue calculations, along with reasonable supporting documentation, and (c) the number and Tranche of Earnout Shares which will automatically become Participating Earnout Shares, if any, along with the underlying calculations and reasonable supporting documentation (the “Earnout Statement”).

Section 1.4.          Dispute Resolution. In the event of any disagreement(s) between the Company and Group LLC or its Representatives as to whether a Benchmark Target has been achieved, the number of Earnout Shares implicated thereby, or the Earnout Statement, which cannot be resolved by the parties within thirty (30) days of delivery of the Earnout Statement, the parties agree to submit to the Company’s principal independent certified public accounting firm, or another independent accounting firm of national reputation selected by the Board of Directors in good faith in the event that the Company’s principal independent accounting firm is unable or unwilling to serve in such role (the selected accounting firm being referred to as the “Auditor”) to audit and resolve such disagreement(s). The Auditor will deliver to the Company and Group LLC or the relevant holder(s) of Class EO Common Shares, as the case may be, as promptly as practicable after their appointment, a written report setting forth the resolution of each such disagreement, which will be final and binding. The fees and expenses of the Auditor incurred in connection with its determination of the disputed items will be paid jointly, one-half by the Company and one-half by Group LLC or the relevant holder(s) of Class EO Common Shares, as the case may be. Other than such fees and expenses of the Auditor, each of the Company and Group LLC or the relevant holder(s) of Class EO Common Shares will be responsible for their own costs and expenses incurred in connection with any actions taken pursuant to this Section 1.3.

Section 1.5.        Benchmark Determination Date. The satisfaction of a Benchmark Target, as finally determined pursuant to Section 1.3 or Section 1.4, as the case may be, shall be effective as of the achievement date of such Benchmark Target and is referred to as the “Benchmark Target Determination Date.”

Section 1.6.       Achievement of Participating Earnout Share Status. Upon satisfaction of each Benchmark Target as set forth herein, the corresponding number of Earnout Shares shall automatically, without further action, become Participating Earnout Shares, pursuant to, and in accordance with, this Certificate of Designation, and shall be reflected as such by the Company as promptly as practicable in the shareholder register and books and records of the Company, effective as of the Benchmark Target Determination Date. Any subsequent declines in Run Rate Revenue below the amount that was used to allow Earnout Shares to become Participating Earnout Shares will not result in the reversal of such Participating Earnout Shares back into Earnout Share status.

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Exhibit 10.1

EXECUTION VERSION

Registration Rights Agreement

by and between

GREENBACKER RENEWABLE ENERGY CORPORATION,

GREENBACKER RENEWABLE ENERGY COMPANY LLC

and

The initial HOLDERS

as defined herein

Dated as of May 19, 2022 

Table of Contents

Registration Rights Agreement