Trireme Energy Holdings, Inc. v. Innogy Renewables US LLC

• Court: District Court, S.D. New York
• Decided: November 29, 2023
• Docket: 1:20-cv-05015
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TRIREME ENERGY HOLDINGS, INC., et al., Plaintiffs, Case No. 1:20-cv-05015 (JLR) -against- ORDER INNOGY RENEWABLES US LLC, et al., Defendants.

JENNIFER L. ROCHON, United States District Judge: The Court Exhibits from the bench trial are appended to this Order: e Court Ex. 1: Plaintiffs’ Opening Slides e Court Ex. 2: Defendants’ Opening Slides e Court Ex. 3: Andrew Young Deposition Designations Played in Court e Court Ex. 4: Jeffrey Puterbaugh Deposition Designations Played in Court e Court Ex. 5: List of Exhibits admitted with Deposition Designations e Court Ex. 6: Designated Deposition Testimony Excerpts Played in Court Dated: November 29, 2023 New York, New York SO ORDERED.

Cf k 01 & ir JENNI F fe L. ROCHON United States District Judge

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Lead Negotiators —_— i : » Jim Spencer Andrew Young Tireme IRUS From: Young, Andrew Sent: 10/5/2017 3:42:41 AM | had a good call with Jim Spencer on Monday this week. He emailed me late Friday saying that they are losing in RFPs as they do not have the latest WTG prices and understand innogy’s IRR requirements, but he likes how things turned out at Scioto. We covered a lot more to the call and below is his feedback: AURA DEAL — MERGER AGREEMENT TerraFirma will have to come to the conclusion that Innogy is working on the premise of good faith and fair dealing principal PX_043

eens Unfortunately the “cease development” alternative is much worse for innogy Kecimmnsseec: 1, Innogy’s sunk cost increase to $108.2M assuming the $69.7M development fee is ite See still owed to TerraFirma oar 2. Recall innogy has a good faith obligation to continue development of Cassadaga ees 3. The $108.2M becomes worse if one includes lost security related to PPAs, : sc ssaaimnti interconnection, etc ates mb Senaen ne uaroacapeenee HH(titM—w=-0o«,

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| » 77-acre, 125 MW wind farm

| ) »° 37 high-capacity turbines

| » Located in Chautauqua County, New York

ei gle aie. 2 > Clean energy to 37,000 homes

en Trireme sold 40 windfarm projects to IRUS ae Consideration: nwaracnnasi $50 million upfront payment $112.2 million in earn outs

$69.7 million of earnout tied to Cassadaga emai SE --——— PX_0

“Payment Milestone” means, (i) with respect to a Target Project (other than the Cassadaga Project or the Scioto Ridge Project), (a) prior to October 1, 2019, either: (1) that all of eer ae □□□ ero the following have occurred: (A) such Target Project has secured such land nights, approvals, eereasuysetisu4e Governmental Authorizations, and other assets that are reasonably required to finance, develop, Aurea Mencex Sts LLC. construct, own, and operate a wind energy generation project, (B) such Target Project has ee ay Ee LE obtained a valid, enforceable interconnection agreement, and (C) such Target Project has mane nye obtained power purchase and/or offtake agreements (including synthetic power purchase TRIREME EXERGY IIOLDINGS, INC, agreements, swaps and hedges) for at least its Minimum Planned Installed Capacity, if any; or ee (2) (x) such Target Project has obtained a valid, enforceable interconnection agreement and sores construction agreement and (y) a full notice to proceed under such construction contract has been issued for construction of the applicable Target Project; or (b) such Target Project has not achieved the Payment Milestone set forth in (a) above prior to October 1, 2019, but such Target Project has reached its Commercial Operation Date on or before December 31, 2020, and □□□□ with respect to the Cassadaga Project, either (x) prior to October 1, 2019, either (1) the occurrence of the events listed in Section C(1) of Annex 1 or (2) the Cassadaga Project has obtained a valid, enforceable interconnection agreement and construction agreement and a full notice to proceed under such construction contract has been issued for construction of the Cassadaga Project or (y) the Cassadaga Project shall have reached its Commercial Operation Date on or before December 31, 2020. PX_0

Se Prior to the Merger Agreement, ~ cima IRUS had already purchased “2016 turbines” for $60 million ther . . aimee To obtain tax credits, IRUS 6/99/9018 4:16:50 PM □ Internal pre-call regarding Staff introductions needed these tu rbines In is of the Essence service by December 31, 2020 a 2020 COD cannot be achieved due to delays in taking ownership and accelerating development activities and interconnection, Cassadaga will lose its ability to qualify for the Production Tax Credit CPTC*) and suffer ‘ Value loss, making the project less Wable financially for investors and for Company, if C O rT) Wa S ach lieved b □ Tagger neceetioneee December 31, 2020, IRUS peeetamens carn tea would receive $83.4 million in meee np acne tax credits

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Q. When you negotiated the merger agreement in [PX_001], a 2020 COD was fundamental to the ae! business case for the Cassadaga project, right? Wer A. Yes, | will say that it’s close and it is an important A piece. o>

Andrew Young CEO Q. So you needed to get the full tax credits for Cassadaga RUS i : ‘ i in order for the project to be economical, right? A. Yes.

Young Dep. Tr. at 304:11-15; 351:5

> Expected to admit:

=e It was important to IRUS that 2016 equipment ‘= was in-service before December 31, 2020 a It would have been disastrous economics for the project if IRUS lost the tax credit ee Never worked on any project that would have BUS been economically viable without the tax credit

Ce) Q. And as the senior director for construction, you ae understood, when you first began working on the x. Cassadaga project, that it was important to achieve me COD in 2020 for tax reasons, right’?

Puterbeugh A. Yes, | understood that. Puterbaugh Dep. Tr. at 208:12-

Q. Did you have any understanding, again, at the time sa that you were onboarded, as to why it was important ag to achieve COD in 20207 ¥ A. It was communicated to me that there were tax implications if COD was not met by 2020. Project Manager IRUS Walton Dep. Tr. at 12:13-

Q. Prior to 2020, have you ever worked ona renewable project that anticipated obtaining tax To credits but missed the safe harbor deadline for obtaining those tax credits? i A. | don’t remember any project that was under FA that situation you mentioned. Silvia Ortin-Rios CEO RVWE Renewables America

HL □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Madgenah Se ean are 7 rurqeuibe'sss deleted et Sad passion tins act = Fevers ares nmacreas tas YD Andrew Young CEO a.young@innogy.com IRUS Thursday, September 21, 2017 2:09 PM ~ RE: AY Call w Jim Spencer at 2:30 PM CT Today ri Pribadi , Felipe Arrazola , , , ; rodriguez @innogy.com> Q. And it was important for you to communicate to Trireme and to POINTS FOR SPENCER —— TerraFirma that Innogy was fully lj j j j aretecl aligned with Trireme, right’ o Main purpose is to compare notes and see if we are steering in the right directions o 6- weeks to wrap-up DD, and execute . . □ © efforts are fully aligned with the Seller A. Yes. think It was basically o Innogy wants to build as many MW as possible sayl n g th at | th in k th at our Both sides will profit fram the commercialization of the projects . o Weneed a strong team to support the effort interests are fully aligned, yes. o Innogy is heavily invested in the success of the pipeline by virtue of the heavy front-loading of the earn- out o diary wane te torre erecvent caemeat ¥

Murase Pao, page 4 ot PR_041 Young Dep. Tr at 278

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Jim Spencer Andrew Young Trireme [RUS From: Young, Andrew Sent: 10/5/2017 3:42:41 AM | had a good call with Jim Spencer on Monday this week. He emailed me late Friday saying that they are losing in RFPs as they do not have the latest WTG prices and understand innogy’s IRR requirements, but he likes how things turned out at Scioto. We covered a lot more to the call and below is his feedback: AURA DEAL — MERGER AGREEMENT TerraFirma will have to come to the conclusion that Innogy is working on the premise of good faith and fair dealing principal □□□□□□

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“Today with a high development fee to be paid to TerraFirma, the former owner of the AURA portfolio.”

“Main Issue: to be paid to TerraFirma.”

“Main question was if Cassadaga project does not get grid by year end 2020, can they still qualify for ITC | ]. We all said with PTC each turbine must inject —— MWs to grid. Is it any difference w/ ITC?”

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o WIND ONSHORE = = 0 mecwenoneet 01 Project Main Data | te eee Eee | Sassacige rete Scope of Supply 27xN117s 3.675MW HH 91m, 10xG114s 2.625MW HH 93m, Multicontract Report Mo. March 2020 Project Company (SPV) Cassadaga Wind LLC | Project Wanton Pree (Partners AN =<. [Financials Hurdle Rate 6.63% cn eb IRR (current forecast)* inc historic Costs 6.50% |___Fan IRR (post mortem)* ine Historic Costs N/A tance Cost (acc. latest Budget Approval) $348 m saatrnnene Gnesi tee!__ Cost (current forecast) $348 m ~ |Program (Time) FID (original) □□□□□□ cane cena Some canoe FID (latest plan or achieved) □□□□□ GentnamnsTroooya ewan Genser. St Ot RM1: Start of Construction (original) Oct-1 Eero Ge RM1: Start of Construction (current date) Noy-1 RM10: Start of Commercial Operation (original) Dec-2 RM10: Start of Commercial Operation (current date) Dec-2 Stee —_______ |Quality & HSE&S LTIF (from Start of Construction) 0.0 □ Average Quality Performance good □□ ~~ PX_24

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ie ‘Watton, Inde □□□□□□□□□□□□□□□□□□□□□□□□□□□ ADMINISTRATIVE GROUP □□□□□□□□□□□□□□□□□□□□□□□ 29 2415 Tea 54 EP SEOs A DOS SERIE ALTON, JA Sa =" a ee □□ = Prantop, | □□□□□□□□□□□□□□□□□□□□□□□□□□□ Adminatiative Grous □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ bata S hb 14) Pracen, Mri; Mogiakl, Katie □□□□□□□□□□□□□□□□□□□□□□□□ Aaminiggrative Grows ss ee cae ee = — en=fiecipienes/cn asses 2eca2te detache bseiogiie|, . — Baseline Capupdaga Schedule 4.17.20.mon see attached schedule for Cassadaga. — - =

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a PA_25

| sets Puterbaush - (Seige □ Construction Director Ss Se ES | ~ (ESS SS) | SSS SSS SS PS SSS SE

... is it fair to say that | SS eS eS □□

eporting to NTA AQ enon Original schedule at risk, but about the unfolding COVID may be possible to accelerate . inrity? work. Key factor will be getting situation was a top priority turbine deliveries re-scheduled to align with overall project Yes. schedule. Risk that not all turbines will be COD by 12/31/20. Puterbaugh Dep, Il Tr. at 392:20-24 PX_2604

A. : = — 4 ne pops i iS is odbaeree 1 THAR = on □□ 7 a ae an OL La ae een □□□ □□□□ agar ete La Ae Ce on wil Parana st 23 eet : ee Pe Nic A LS naan, Re A eectay, Prarich m aa Rewer [Paroupehersscee : Howe Green pore direitos □□□□ a Bdelrtrs lye Go i = i a CDOSACE WODOOS TODAY. AS Ler) Geker ee Cred Be cre cers Le 9 ap cd bia i te fen Erg, 7) qj c 7 i ; ncuinigremion-a: Bein LEDCRCUG La oe bomen Raadang, CF-o ra pad oie le iter ela, aafesol ron ants a HICTTSR TAT -tasceg hme, oT Pre. rid woe pot Corgrea ta extane the FPCITTC sale hart provisions. we aren a □□□□□□□ □□□□□□□□ □□□□ ts Ae 2 prmares tar bbdAy lg) (aru Coviadaga geen crested Pic LS Tae ef ec. Lee Aoodsimrrver Gera issn ee ual Muscato Monday, April 06, 2020 10-35 AM Younis (esd.ny.gov) kevin. younis □□□ my pow prota Eotpanarceheadeay bis mecarthy@innogy.com;: crak sundstromi@innogy.com: Doreen M Harris (myserda.ny.gov) bmscapy Mnarwcabien Uh LLC @inyserda.ny,gove; Thomas Congdon (dps.ny.gov) □□□□□□□□□□□□□□□□□□□□□□□□□□□ Kiem Harriman ee ny. ie ceeea mene RE: Cassadaga Wind ria pureinnooe ifianees Arr is a request from Cassadaga Wind LLC to have a portion of the Cassadaga Wind Project, which is currently a frum rect aes nsctedipasgrt cae al e scale wind energy project under construction in Chautauqua County, New York, exempt from recently announced We Fama, Cats nandirerecpy sa 2: Fa: FEED HRDED TOA math iho struction workforce restrictions. In addition to the ESD form, there is a supplemental description of the workforce ! a es : ha Ps iol Tinea Ae, that Cassadaga Wind will implement as well as the work that we are requesting be allowed to proceed. wea ni Minenin 7 Se Exoreticd Wis, Plog Pelbedes Crewe, Alley. Rv KE2aA mets ia al cer acpia mn lied share palsowatiel ojedl. garveaire ws Barca From: Sundstrom, Craig [/OeEXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP ee ete cada □□□□□□□□□□□□□□□□□□□□□ (FYDIBOHE23SPDLT)/CN=RECIPIENTS/CN=4C39CP96B □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ | af on wertibended, a esc feet Cound ed Mase tet te □□□□□□□□□□□□□□□□□□□□□□□ eitsomanrate ae Saree Fe and Sorrreretiey Sanifrcon ta eae that acount roma ane bipehieet Ta: Patrick Zlogar [Patrick@roffegroup.com)]; Alexandra Dawson Moore [Alexandra@roffegroup.com] sn mended bank, A eSekephe es We wT ein A iene Cot eee Subject: FW: FEEDBACK NEEDED TODAY: NYS Exec Order on Essential Business wilh WUT, CML, (ERD, ora oll agree that your naweie. io Reeser” the and iaiitersthy □□□ The mead Moran maemo frome ioe peer 7 4 2 - os nf core the AY Poane Caecutien Crier. Wear enaare your activi af He peietct he Basically, until we get Congress to extend the PTC/ITC safe harbor provisions, we are in.a position where we ne & reserve our ability to construct Cassadaga. iain RUREOCI Tai eo □□□ PX_237 □□

eae essa | am happy to share the attached IRS / Treasury notice with you. It is the anticipated guidance we were eagerly seeking to provide relief due to Covid-19 delays. arnt = fire) | Craig Sundstrom AE = Director of Government ¥ / & Regulatory Affairs Coemaranion ee pL ot on he armengaind puede wen meer aagety i IR US

Q. And this was huge for Cassadaga because as ¢ ene eamaaad this extension date, the project co uld earn a full ITC credit, even if it had COD in 2021, right? ED A Yes ince tad eerie PA_284 Sundstrom Dep. Tr. at □□□□□□

o WMD ONSHORE fe = □□□□ (] Moniiy Progress Reaper be □ me ' Jeff Puterbaugh □□□ OG — : : JPacctng Perc Jue 2020 Construction Director [Proc Menece: Jade Walton Innog are oY 01 Project Main Data Scope of Supply 27xeN1 17s 3.675MW HH 81m, 10x61145 2.625MW HH 93m, Multicontract Project Company (SPV) Cassadaga Wind LLC im | j Partner / JV And did it— did the 2020 COD — Fame . Financials Hurdle Rate 6.63% change in this timeframe in IRR (current forecast)* inc historic Costs 6.50% IRF (post mortem)" ine Historic Costs MA, May, the projected CO D? Cost (acc. latest Budget Approval) $348 Cost (current forecast) □□□□ Program (Time) FID (original) Jun: No You know, our official FID (latest plan or achieved) Jun- . RM1: Start of Construction (original) Oct projected COD remained RM1: Start of Construction (current date) sige RM1t: Start of Commercial Operation (original) Deo 1 2-31 -2020. RMI0: Start of Commercial Operation (current date) Dec. Quality & HSE&S LTIF (from Start of Construction) 00 ae Average Quality Performance □□□□ Puterbaugh Dep. II Tr. at 105:3-6 PA_32¢

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S. Ortin-Rios (E) J. Badeusz (E) d—Franklin le} N_-EspesiteiE} T. Festle (E) K. Gresham (E) P. Bowman (E) W. Weidaw (S) A-SattauwHs} A. Gardner (S) _Hoffrants} MM Meyersts} P. McCoyd (S) F. Li (S) M. Rao (S) MMarcum-{s} G-Wallaer{s} A. Giannotta (S) M. Brusius (S) T. Hey (S) J. Mueller (S) R_Barmes13} S. Roy (Sec) M. Frigo (E) B. Campbell (S) G. Dees (S) CHunfele A-Heneghar{s} M. Kessel (S) S-Legsden ts} J Hargrove (S) C. Nicholson (S) J. Rodriguez (S)

PX_3°

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pete oa ee, ee edn Gt Pde be Wee perwmevbeiges 6 tee seve caren emer nt etn vd ty Ws l-Pgrl Se nt: 7/8/2020 6 16 □□□ Pp M = EO

icmeeene. Cassadaga be Paley Expected COD: 04 2020 Status: Construction - minor delay COMMents: Construction work has restarted after Covid19 related shut down. Grid availability is on schedule as point o jnterconnection construction was not impacted by Covid19 shut down. 43808 Short explanation that could be shared with externals: Covid19 shut down was mandate of State of New York. All ininetariemetewest -netriuction work has resumed and recovery from shut down delay is expected and subsequent 04 2020 COD remains bee oP bd ererrnh 7 . karemacneenmenne the Forecast. Construction of point of interconnection facility was classified as “essential” and not interrupted.

- hia Cod relate poh ema, tel wrailaty urtatele i Beet a tat socom Cave ate we es reat ae Ma ar Ban epee Pewee fea cite Bethy acer aed taebemerpomd Oo EOD eke tereecrecten teriliéty an led ot ere ered nok tenes

8 ROOIITs ern PA_S

Cassdaga Schedule

Mobilization to Site 8/26/2019 8/26/2019 0 □ 1ST Foundation Poured 6/1/2020 All Foundations Poured 8/30/2020 Substation Complete 10/2/2020 External Grid Available 9/1/2020 ist WTG Generating 7/18/2020 All WTGs Installed (MC) 9/25/2020 All WTGs Generating 10/31/2020 cOD/Completion 11/15/2020 @ ortime Deloyed/Late ~" Complete f Cliff edge dote not ot rsk

From: Mueller, Justin [/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF235PDLT)/CN=RECIPIENTS/(CN=FO9EF2091872444396293DE6BF9D5FA9-MUELLER, JL] Sent: 7/28/2020 2:54:47 PM To: Badeusz, John [john.badeusz@nwve.com] Subject: RE: Cassadaga COD Thanks for getting back to me. Is 12/30/20 the base case (currently most probable assumption) in your view for MTP? □□□□□

EAC From: Badeusz, John □□□□□□□□□□□□□□□□□□□□□□□□□□□ ADMINISTRATIVE GROUP (FYOIBOHF235PDLT)/CN=RECIPIENTS/(CN=DD9734C74AEB47D5AFSE6CEB2936F5 17-BADEUSZ, JO] □□□ Sent: a/11/2020 2:29:32 PM Project - Key Uileiner Bair To: Ortin, Stivia [silvia.ortin @rwe.com] in Subject: Construction Project Update - Key Milestone Dates few gal WR connote mat er prone RE: Construction Project Update - Key Milestone Dates by and mood ever to Cpcraets - Amgen 207o ree WT 1, 3050 Silvia: sine : ioaiae “ = 28-202 As reference for today’s catchup call 1, 2020 Wis 13, 2030

Noche i 3100 Cassadaga Substation energization date - November 15, 2020 Bh, All WTGs generating - December 31, 2020?

ee PxA_3

□□□□□□□□□□□□□□□□□□□□□□□ uarpersiaeescpremana aati

See : ituation - RE: CONFIDENTIAL Situation - Cassadaga Project Manager and Jeff Puterbaugh High Macager and Jel Pumechaagh Silyi Jn h ilvia/ Ayesha:

| ven des wverang oflar lade Walton. Cattalege ssnanene “smuetvey eupenamtwine extanite, 'Want to summarize the situation | have been dealing with since Monday evening after Jade Walton, Cassadaga ey ane seinen ee Construction Project Engineer resigned his position with RWE. ey thowghh and wera la fA, pear inte Won asap Cominatien rit aera vier innwr TQ Say the least | have spent a great deal of time dealing with this untimely resignation and worse, the lack of support hems □□□□□□□□□□□□□□□□□□□□□□□□□□□□ andl willingness to help from Jeff Puterbaugh. Very difficult discussion with Jeff last night has left me with very few ak tance TA marin tba alternatives. | wanted to inform you both and propose solutions and seeking your valued feedback. id feed. fist Fssnumncsecpsrinms Goeth; GP Norse = Lor ueamins Lew incorepiete, Substation neercicte. gtd aif prt cel work eeerpiete wT beets Oa 1 comalene Remaining acai - thet of the gecpeck. fot mepectedialn, O00) Gironeriney Salt? = Brie ait : Project neplacesnacc candidvtmn bn ender of prnfeneoce We then had a very long phone conversation where Jeff essentially told me he would not entertain my request to step in niet uniter reed §=—©6as acting Project Manager at Cassadaga. Jeff sited a number of reason why. | will list some of them. memes The Cassadaga project “is a beast”, the project needs more than 1 project manager. | know you were giving Jade ef | howe mo ome oe reg be ttt dey ieee ts BRET □□□ eeu Bot . 3 ifn a be res Minage ne wioatrectacemetiet assistance with Doug Tanaka but one person cannot do it. eT aire mentnineeoe oe You assigned me as acting project manager at Scioto Ridge. | was hesitant to do this but | have been working to eel eee ent seat closer to the Scioto project details and | have done that. | need to finish out Scioto Ridge. reo cman na meet ener lon or ope Be . | feel like | am being held hostage with my completion bonus. with [fasarrion Benpecr Contras Murazert andl mace cart Hee peer □ ee lam dealing with a lot of other responsibilities including completion of the Data Book for Baron Winds and nnn addressing concerns behind the scenes of other former innogy colleagues.

PPA oes pepe deta Px_3

Sent: 9/1/2020 3:26:54 PM qe Hi John, =" Am | good to communicate the new COD for Cassadaga of March 5, 2021 to others within RWE? | have a few people = asking me to either confirm 12/31 or provide a new date. Thanks. Best regards, John Badeusz Jeff Puterbaugh EVP. Head of Wind Construction RWE □□□□

his deposition, Mr. Badeusz: Did not recall any conversations with Mr. Puterbaugh Could not identify any of the issues around the Cassadaga project that gave rise to the delay Did not recall pushing back and asking how to get the project done by the scheduled COD date Was not aware of any written analysis concerning the reasons for extending the COD date Admitted that no cost-benefit analysis was done

RWE eae aaah uc

Solin nance bowen mw ferries, GLE aed our Lie ding ef all be terrence IE, BL. (nol gach Sees, wow wel he tor Sher Seafood fll partors dunes anccited eth ath poise ai raed ange Os pd cdg ber se ea If you remain employed through November 30, 2020 and satisfactorily perform your job duties, out teominrin ire neaeaosrs — RVVE will provide you with a separation agreement in which it will offer you up to $151,972.95 in bonuses sameeemereereaee (fOr Which you would not be otherwise eligible) in exchange for your execution (and decision not to revoke) the separation agreement. In addition to satisfactory performance of your job duties, you must senna snecifically ensure that the following performance metrics are achieved prior to November 30: rat ie men er ee cies cache

PX_41:

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AL LAG ADT WT, CBCRP ECP a PCH BE TOMATO DE AAA ADORE □□□□□□□□ □□□□□□□ TM Leda tee [ara ibvor unr dee are Tycndlnccieenst bibaded bee Arrcan, bd Cenadegs Wied Form abyinveiel eae Atebeechatet Grea Pal tad baa PLHP, Ce, Petra, Tan equity Levene gent (ceerhange Alera tet Fe Ac aT A cet, Semumary of Indicuiive Terms med Condi Dia cancmucrion whole bee Carte tn eee Sxpomber 1 Th70 The Seomary of lodeeative Termes ard Condiioms (Term Slee) □□ □□□ □□□□□□ □□□□□□□□ mach i a 4 a eeby and dock act represent a onenmirmaat or binding agreement by Wella Fargo □□□□□□ □□□□ what h phyuculy ard tortracteilly leaubue aud eaoeable (ron a pure cori naitiae ware Hiidings, Ine, RWE Renewables Americas, LLC or any cian piven, □□□□ □□□ □□□□□ mt ioe et footy fim ney sections tied “Tremisction Depenan”, “Cocfidaeaain”, □□□□□□□□□□ □□□□ sea bs Fuster, this Teen Sheet ia not mecmet ibe, nor chad af bp cooaseed oa, on □□□□□□ □□□□□□□□□ all of cub he earifcalioes of rl coverrateny reaiihy, hnancng ected the ereex ared conditions ef he prapetid Wasancice. Basher. in is maended □□□□ sa □□□□□ corte tn bashes poles of buries onderuasding wfech will be eihected if tit □□□□ □□ □□□□ ee Ary coremitmesl of agreement would require final pricey, wmactury, te, □□□□□□□□□□□ □□□□□□ and . merragerent approval aod compiction of aatisfarnoey docutReR UDOT Orel propa due □□□□□□□□ Jul 8, 2020, at 5:03 PM, Rodriguez, Juan wrote: Praeet fn approcionsely 123.3 KEW wind power gmecrsion □□□□□□ tne Tees of Charione, Chery Creek, and Stochiee in □□□□□□□□□ County, Feew ‘York aa. moee dckeribend in cores □□□□□□□□□□ □□□□□□□□□□ Moworadiam, died Frbrnry 7000 and attached on □□□□ A Freject Company 9 Couxdags Wied LLC, Dechrwars Tecited Faby □□□□□□□□ □□□□□□ for ‘ . The grafpeid af deetigeng, cenmrocting, owning and □□□□□□□□□ tbe schedule would be good before hopping on phone with Wells. Project Company Cosmadegn Wind ficidings LLC, 0 Ceieware □□□□□□□ □□□□□□□□ □□□□□□□□□ created for the garpote af quming 100% of the equity □□□□□□□ in dhe a Project Company, re negotiating under the assumption that WTGs could slip into 2021. already were 5 the a P Pp The Compuny sl be tensed ai a pirtserthp fer □□ □□□□□□□□ □□□□□ the Chita A Equacy leepror {deficed tele) ia adenifed ary on the comnirts of this comlicderetia! lvincecaion bt airiethy probiteted W you het F □ (Lag Meo ema it, [A] eran or eeninzy A ama fi] roobahty momaby a Boy Cemerelile. fe: Cempeny 08 ectels ca □□□□ ot □□□□□□□ sale fires (he “Chem A Mentesship imiererto” ond the □□□□□ if tarikip tetris) bide ‘Clase quire ‘Cumadage Cla 0 Hotdiega LUC, 0 Bechireete □□□□□□□ □□□□□□□ company. Pea feweinar preined forthe purpose of lniciaity owoing bOOt6 off thee equity □□ dan com fe Compacy ne coms: Putercauph, bil a prlLoubirbhughilitet ones bir Co wn hawt an conatnveties sifeedike foe Compchags yor? Clee 8 Member | The Cisia B Egeity evestor apd cach cher sybseqare □□□□□ of the Cla Bi Merbenbkip brocrenti. hell ‘be eefornd oo □□□□□□□□□□□□ □ □ “Ole □□ buss of oe ee eee od is ae Ral anger aerh WG regarding echedule cube! and bee MMeauber™ and collectively an fog "Clave if Member”) Komereee eth Bagh ofetbenty Tea ger arma! areca reid eel be rhe ina, mR RATT Ce ails □□□ □□□□□□□ RUST) STS combate a □□ PIS, cage Tet a PX_404A, page Tat 50 *y PA_316 PX 40

titeed esl is eto mai ttt) COPA ge) (ta ce □□ le ae] Mobilization to Site 8/26/2019 8/26/2019 0 1ST Foundation Poured 6/1/2020 All Foundations Poured 8/30/2020 3 Substation Complete 10/2/2020 12/31/2 External Grid Available 9/1/2020 ist WTG Generating 7/18/2020 } All WTGs Installed (MC) 9/25/2020 All WTGs Generating 10/31/2020 rf - COD/Completion 11/15/2020 12/30/2020 □□ @ ontime Delayed/Late ¥ Complete Scie edge date net at risk PA_3.

) Q. Did anyone ever instruct you or direct you to accelerate construction at the project, at the Cassadaga project? ¥ A. | do not recall anyone ever directly instructing me to i accelerate any aspect of the project. Jade Walton = □ Project Manager Walton Dep, Tr. at □□□

( A. There was no acceleration plans presented that ae achieved the goals we needed them to achieve. = Q. So the answer is no, you did not implement any ‘Pan acceleration plans, right? Jeff Puterbaugh A. That’s correct. ae Puterbaugh Dep. Tr. at 220:14-

a aa = = r -_—— > sr, tres > es 2 2 a. □□ => — fo is a J == i a ae

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PX_25

ne SE = J] Documents say project was on schedule at July 1, — _ 2020 handover

Badeusz told investors the project was recovering eeeceemmeerese = from the delay

Documents say project was on schedule as of Jul) ”—*—“‘“ == | 28, 2020 update

es SESE Badeusz and Ortin-Rios cannot explain the decision to move the date

— Ea RWE did no cost-benefit analysis — PX_32

Never read Merger Agreement ~ a. Silvia Ortin-Rios Never learned RWE’s obligations under RWE bles America th eS CO nN ra CT

are) Took no steps to comply with contract

ee Never communicated with Trireme auxh John Badeusz

~~; Q. Have you ever undertaken any effort to ) determine whether Innogy or RWE has

complied with its obligations under the merger agreement that’s Exhibit 1 to your deposition’? = AF} Have you ever done that?

= PA A. I don’t recall. Silvia Ortin-Rios CEO RWE Renewables America

Ortin-Rios Dep. Tr. at 285:13-

ACHERMENT ANT PLAN Of Mina Annex 1 AY AND MH ReNKWanees US LLC. Target Projects, Payment Milestone Amounts, and Expected Installed Capacities ALMA MERCER Se LLC, TREE Dv eorvest, LLC Exkecy DEvoLorwest EL, LUC, A. Trimmer LheLpeecs, Esc. aS THE MEME RCPRESENTATIVE □□ DATED soF DECEMBER 21, 2017 | Row Project Payment Milestone Amount 1 Cassadaga Project | $69.700,000, provided the Cassadaga Project has an Expected Installed Capacity of at least 113.4 MW, subject to adjustment as set forth in Section C(2) below.

rarer _lfnseooee tT □□□□

With prudent project and construction management, the

J. Cassadaga Project could have achieved COD in 2020. se Hickey Standard acceleration techniques could have been Construction Expert employed to reach COD in 2020.

| IRUS/RWE employees did not act in a way consistent or with attempting to reach COD in 2020. o> After the tax laws changed, IRUS/RWE had a significant Mark Mezyk financial incentive not to achieve COD in 2020.

ee, Se ee — sie i il fie ‘fo =i ~ / ‘) ee, a = Sa i i F “ be i r : - a

Farcates Vera 7.6 Payment Milestone. (a) From and after Closing Date, Purchaser shall use commercially reasonable —— efforts to cause the Company and the applicable Development Companies to continue to develop sanncy temmystistte. the Key Projects in accordance with the applicable standards of care set forth on Annex 2. iis Rem: Subject to the preceding sentence, the details and manner of such development efforts and the TRIREME EXERGY DRATLOR MENT, LLC schedule therefor shall be within the sole discretion of Purchaser. In the event Purchaser ENERGY DEVELOPMENT IL, LLC, determines to cease development of and abandon any such Key Project prior to October 1, 2019, asp Purchaser shall so inform the Member Representative, including the reason therefor, and TRIREME ESERGY HOLBINGS INE. thereafter Purchaser shall have no further obligation with respect to development of any such Key AS TH Mamet REPRESENTATIVE Proj ect. DATED AS. OF DECEMBER 21, D017 (b) Purchaser shall keep the Member Representative informed on a reasonable, periodic basis, but no less frequently than quarterly, regarding the development of each Key Project, by delivering information in the form set forth in Exhibit C to an individual appointed by the Member Representative (the “Designee”), who shall initially be James Spencer From and after the time a Key Project has executed a valid, enforceable interconnection agreement and a valid, enforceable construction agreement, Purchaser shall also reasonably cooperate with the Designee to respond to the Designee’s reasonable ad-hoc inquiries regarding the development of such Key Project; provided, however, the Designee shall limit such inquires — to a reasonable level, taking into account the stage of development of the applicable Key Project and in any event no more than three inquiries per month.

PX_¢

7.6 Payment Milestone. (a) From and after Closing Date, Purchaser shall use commercially reasonable efforts to cause the Company and the applicable Development Companies to continue to develop the Key Projects in accordance with the applicable standards of care set forth on Annex 2. Subject to the preceding sentence, the details and manner of such development efforts and the And rew Young schedule therefor shall be within the sole discretion of Purchaser. In the event Purchaser CEO determines to cease development of and abandon any such Key Project prior to October 1, 2019, IRUS Purchaser shall so inform the Member Representative, including the reason therefor, and thereafter Purchaser shall have no further obligation with respect to development of any such Key Project. will have to come to (b) Purchaser shall keep the Member Representative informed on a : . reasonable, periodic basis, but no less frequently than quarterly, regarding the development of conclusion that Innogy IS each Key Project, by delivering information in the form set forth in Exhibit C to an individual gon the premise of good appointed by the Member Representative (the “Designee”), who shall initially be James Spencer and fair deali ng pri nci pal = From and after the time a Key Project has executed a valid, enforceable interconnection agreement and a valid, enforceable construction agreement, Purchaser shall also reasonably cooperate with the Designee to respond to the Designee’s reasonable ad-hoc inquiries regarding the development of such Key Project; provided, however, the Designee shall limit such inquires to a reasonable level, taking into account the stage of development of the applicable Key Project and in any event no more than three inquiries per month.

— — 7 ETE . wee ee - ae = ees - — □ □□□□

“It would be helpful to understand the status of construction at the site. | realize the FNTP was issued last month but what can you tell us beyond that?”

“What is Purchaser’s current expectation for the Commercial Operatior Date for the Cassadaga Project? Please provide a copy of the current construction schedule/timeline.”

“What is Purchaser’s current expectation for the Commercial Operatior Date for the Cassadaga Project? Please provide a copy of the current == construction schedule/timeline.” PX_234: PX_281A; □□□□

□□ [ree pertinent

a int gee Jl ie ee Oo) aiken etre, etre el | be kent | Cee rs Bethel a pian tocar ap querri toe pes egrets fC em Cooks, 9 tee a! deorremars of tha Prat interprets OH [oe oa Cortes Pan rl at neers tien, ahr Par eae a ha di ie al Pacer meraction coats whale Lhe heat chee? Maen penvide cpanel oy TRGD-retimming te inercomwactioes bora. di ene Ba chek OE agen epee aed ee be ele Pee hee coed es ee lL pee EEO. Thin Gene et etch CRE Pes pes ceremonial beiracion, ew ee pelate rie AE Cee. Whar Pecrheee oeret eepeitets tor tee Larmrepecid Qpersot Deer bor thar copy of hay parse (aera TROL | tein, Then See i bel BERR, dere weet | eee ke ee

‘ : . - at 2. Commercial Operation Date. What is Purchaser’s current expectation for the Commercial Operation Date for the Cassadaga Project? Please provide a copy of the current construction schedule / timeline. The project is now estimating a 3.5.2021 COD. An updated construction schedule / timeline will follow in a separate communication. Mel

a hte 2

ad, TE pceaeers: Pe HUM sae □□ □□□□

= RWE ignored Mr. Spencer’s requests for = information. ~ = Set a

} Trireme could have worked with RWE to achieve December 2020 COD but was never aft given the chance.

Jim Spencer

as a a fe oe ee □□

AGHEEMENT ast) PLAN OF MFROFR Annex 1 Siete RinianmiRsUSLC. Target Projects, Payment Milestone Amounts, and Expected Installed Capacities AURA MERGER S48 LLC, RxmRcy Devore, LLC EXEROY Devers UL, Lt, A. Tae EMeecy Lhuoes, Isc, AS THE MEMBER ELDFREMCXT ATIVE Sra eee TET Pais □□ DATED AS OF DEcesieer 21.2917 Row | : Pro Payment Milestone Amount 1 Cassadaga Project $69,700,000. provided the Cassadaga Project has an Expected Installed Capacity of at least 113.4 MW, subject to adjustment as set forth in Section C(2) below.

PX_(

Trireme Energy Holdings, Inc. et al., v. Innogy Renewables US LLC et a 20-cv-5015-JLR

Defendants’ Opening Statement

November 13, 2023

Pll

| aia _|

‘ . i 3 ; Implied Covenant of Good Faith and Fair Dealing

Requires proof of a “malevolent” and “purposeful scheme” to deprive a counterparty of a benefit ¢ Najjar Grp., LLC v. W. 56th Hotel LLC, 850 F. App’x 69, 72 (2d Cir. 2021) (quoting Richbell Info. Servs., Inc. v. Jupiter Partners, L.P., 309 A.D.2d 288, 302 (1st Dep’t 2003)).

© Cannot “create new contractual obligations that were not bargained for.” King Penguin Opportunity Fund III, LLC v. Spectrum Grp. Memt. LLC, 187 A.D.3d 688, 690 (1st Dep't 2020)

Pl

Plaintiffs’ Burden to Show:

1. Defendants intentionally delayed construction of Cassadaga in 2020;

2. The purpose of the delay was to deprive Plaintiffs the benefit of the Milestone Payment; and

3. But for this intentional delay, the Cassadaga Project could have achieved COD in 2020

qj □ I r naed include i i a □ SE I EE STATES DISTRICT COURT USTTED STATES DISTRICT COURT UNITED STATES DISTRICT COURT ame ‘aie forte Saatiare Kiait ol bars rk four ee Tae . 7 loess [POEM ENERGY ote Dees ICL TERME OMG HOLS WE a ; — perce Pete AALS ULL Ee = sede ENABLED U5 LI EASAACASA ME LLC BARDGY BE ¥ EVERS=U R¢ EADAGA VRE WU. UNCRET ————$ ey ay =: ise oe -_ SACRO TO PQDUCE DOCUMENTS, INFORM TROT 10 FEDBUOE CT (Do To FAA) FSPECTION OF FETAL ENER RU FRRMID OLE ADRS Lh R rce ca ATH in i Pee esoure ee eae oe net ENERGY To Eo eal ear Environmental ae Haein Pe on EMERG meee = scale ahavileigualelaoh pulpal S01 GE ecuador es pete Solutions ME pepsi YOY ARR CPAEMAR pri ha md, al lic uct te thom ir □□□ □□□ ‘ ees cpmnisss, demmmalenly eared erm co-sign rings er meeps dicen pocrmaicalle moral eioeenain, 6 alg. allt Pore Ups. oryryony, Noming, oF uempling □□□□□□ SrA ss eaectereeet mmierial 9 annie eee sil □ —— — eee □ we eee ta ea ry fr eer □□□ Pyare tie ere NITED STs ISTEMCT COMIRT Listen STATES Dastaact COURT UNITED STATES DistT™*'"* * UNITED STAN IS mT ht bos i, for sam Thank alice Ve rf! Sachore Chic’ of r= —,, im a a TUM Bung eo TE ER Pea at i SS ee im ramet (Ci ree af oes | ‘ a Cel Ames SLL uw fe □ EME WARES □□ LLG: ST ORE. = BIG =e ¥ i SAS4A5kGe WD) LI, BIDS BE = oe i ay WILLIAM CHARLES - %. ut ks ' |e a hi? CONSTRUCTION a las Teel ah SUOPOERA TH MADSOCT DOCUMENTS, TS FRSSTCE BOOTED PORE SURRIES) TFRODLCE DOCUMENTS | < OT UREA resiariiel 8 TO TewPEC Ss ow LMT OS TH PRAM ISSPEC TH OOF PREM ea ks Sek kc die faa 7 alc Sas Corie epee aaa is engl cpm tee Wig RE AR CAME poedbeaetS se Pretec VOU ARE COO WOMAAICEOEDD oo ince te □ pvekoren POM COQMMEN NTT pcos Bc co rel pls mp mew pies □□□□ enn Gad ieee eo HSH Wi LTAGE wis a a oe Ae Giecises chy afew. or eigen vad so reed bape Cop eT. ce Te, & 200 ial ee i RCI □ ‘in ade 201, SS ee el USitep STATES DSSTRICT COURT LC Le EA Te OU UNITED STATES Disteicr Cour 202, orca UNITED STATES DisTRIcT COURT fori 204 female than Se Tt eg Teuthees Baus a ew a a iin oa ee 3 205. aoe = rane a aati □□□ — F font (nth oP, wae Ree UE 7, eaaiee □□ 712 uc MERCER ES UL i A Copan ee ss ee 4 □□□ □□□ CASEADAGA WAD ULE BASE Peaks 23 bene i 913 el k heal 7 □□□ ECTRIG-COMPANY vray COBALWINO SERVICE SE NU 3 ou ey fa gee □□ □□□ Grete on Fatunds X20 0 aco ono eee Yt LL Tx Tintern nt oraat Hcmomen, oT OE : leche tas, my Pere Elects Comey Tex oe \ ae — os 215 te (8 Phsripe Pica, Wier, 1 □□ pewionie: OA) ae COMMANEED ew Aen nin, pic a Fah kc □□□□ —— Se = oe □□ Samat eee ander baoe agar, apron ning or — A ete TO AR OMA oe pe ale, rad rn Re baw Plwent ea, A COTMEMANCE-u-pteln ori nw, see wep il Leis airing diepurecein eared mia. FAs. tl be emer A. mg oF mg ly ET Sra, or ewe rl pred spree, tae ee er small ae dmachaesl | |

Plaintiffs Take Broad, Wide Ranging Discovery

¢ 3 sets of document requests ¢ 47 document requests total

¢ ~90,000 documents produced spanning 2016-2021 time frame

¢ 18 third party subpoenas

PI

Plaintiffs Take 10 Depositions

1. Andrew Young, Former Innogy CEO 2. Frank Falkenhof, Former Innogy COO and Interim CEO 3. Jeff Puterbaugh, Former Innogy Director of Construction 4. John Badeusz, RWE Director of Construction 5. Juan Rodriguez, Innogy and RWE Director of M&A 6. Jade Walton, Former Innogy Construction Manager 7. Craig Sundstrom, Former Innogy Direct of Government Affairs 8. Chip Readling, Innogy and RWE Director of Business Development 9, Silvia Ortin-Rios, RWE CEO 10. Innogy 30(b)(6) Witness

eT:

Categories of Evidence

1. Dec. 2017-July 2018 (pre-close): Plaintiffs fail to develop the Cassadaga Project

2. July 2018-December 2019 (development): Delays in government agencies issuing key permits required for construction

3. January 2020 - August 2021 (construction): COVID pandemic, Project shutdown, and contractor quality control issues P|

Plaintiffs’ Latest Theory of the Case

173. Ultimately, IRUS’s actions reveal its true intent. After the safe-harbor extension,

IRUS took no steps to accelerate construction. or even try to do so, despite knowing that without

acceleration COD would occur in 2021.

Proposed Findings of Fact and Conclusions of Law (ECF No. 224)

P ||

Innogy Corporate Structure at the Time of Contracting

Oo, a () INNOGY ee: ae nee, Innogy SE en (“SE”) ade

| Innogy Renewables US LLC _ (“Innogy”)

RWE is one of the largest SS global players in renewables.

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Defendants’ Key Witnesses

2 Ps innogy . @ Andrew Young er 4 Juan Rodriguez

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a oS □ a John Badeusz Jade Walton Frank Falkenhof Jeff Puterbaugh P|

Andrew Young — Former Innogy CEO (Sept. 2016 — April 2020)

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rank Falkenhof — Former Innogy COO (Aug. 2016 - March 2020) and terim CEO (March 2020 - June 2020)

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Puterbaugh — Former Innogy Senior Director of Construction (April — Nov. 2020) = ‘3

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ade Walton — Former Cassadaga Project Manager (August 2019 — August

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Rodriguez

¢ Innogy Finance Director (2017 — June 2020)

~ 2 ¢ RWE Head of Mergers & Acquisitions (July 2020 — present)

¢ Rebuttal Expert regarding wind energy project financing A

Badeusz

© RWE Head of Wind Construction — North America

¢ Rebuttal Expert regarding wind farm construction

□□

Project Aura

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. Project Aura: Wind Projects at Various Stages of Development

2 ens —_— = ff . sy Cy sand creek 75 mw 2 Proposed purchase Blueberry Hills 250 MW price is based on Coyote Crest 128 MW \* Bron Winds 200 + completion of only SS the 3 viable projects Mud Springs Cassadaga 126 iW) Scioto Ridge 200 MW - 5 = selected based on a ae Kimberly Fun 80 MW rigorous due- ‘ ft, Mason Dixon 60 Mi diligence review and Terrapin Hills 50 MW ~$20m of pipeline | Buckeye 100 Mw value which the US onshore team is a confident will yield " Projects are located ; at least this net primarily in attractive value. markets with strong fundamentals [ShovelReady | State | "| Capacity (MW) a eee □□□ a Saw: □□ ea Mid-Stage Stale iso Capacity (MW) Bisco Ridge of | PM | om — ewe ae mi ——— en ROS | Baron Winds | ny | Nyiso eo see TO | cameests oes Sand Creek [wt | wecc | 75 Sane ee) OH | et Terrapin Hills | wo | Pum | 50 [Mason Dion |] PA | Po | Blueberry Hills | we | '50-NE | 250 MudSpings |] wT | wece | □ □ ee sie cassacasn | Ni’ | | 128 | Early-Stage + | State | Iso | Capacity (MW) | Kimberly Run PA | PJM ul ao |_Early-stage sites | Various | Various | 1.825 | Coyote Crest | wa | wece | 128 | a Bere eet tutes) seek ie eR el

PX_036 at 4 (Internal Presentation to Innogy SE Board) □□□

The Merger Agreement

□

The Merger Agreement Execution Version

AGREEMENT AND PLAN OF MERGER BY AND AMONG IxnoGY RENEWABLES US LLC, AURA MERGER Svs LLC, TRIREME ENERGY DEVELOPMENT, LLC TRIREME ENERGY DEVELOPMENT II, LLC, AND TRIREME ENERGY HOLDINGS, INC. AS THE MEMBER REPRESENTATIVE DATED AS OF DECEMBER 21, 2017

PX_001 P|)

Merger Consideration - $50M Upfront

Execution Version

3.1 Merger Consideration. The aggregate amount of consideration (the “Merger Consideration”) to be paid by Purchaser with respect to the outstanding membership interests of the Company shall be an amount equal to (a) (i) $50,000,000, plus (ii) any Approved Development Expenses (collectively, the “Initial Payment’ ), plus (b) all Payment Milestone Amounts paid in accordance with Section 3.3(b) in an aggregate amount of up to $112,200,000, if any. TRIREME ENERGY HoLoiNGs, INC. AS THE MEMBER REPRESESTATIVE Daten as OF DECEMBER 21,2017

Milestone Payment Definition

“4? Payment Milestone’ means, BY AND ASPONG with respect to the Cassadaga Project, either (x) prior to October 1, 2019, either (1) the occurrence of the events listed in Section C(1) of Annex 1 or (2) the Cassadaga Project has obtained a valid, enforceable interconnection agreement and construction agreement and a full notice to proceed under such construction contract has been issued for construction of the Cassadaga Project or (y) the Cassadaga Project shall have reached its Commercial Operation Date on or before December 31, 2020

PX 001 □□

Merger Agreement, sec. 7.6(a)

7.6 Payment Milestone. (a) From and after Closing Date, Purchaser shall use commercially reasonable efforts to cause the Company and the applicable Development Companies to continue to develop the Key Projects in accordance with the applicable standards of care set forth on Annex 2. Subject to the preceding sentence, the details and manner of such development efforts and the schedule therefor shall be within the sole discretion of Purchaser. In the event Purchaser determines to cease development of and abandon any such Key Project prior to October 1, 2019, Purchaser shall so inform the Member Representative, including the reason therefor, and thereafter Purchaser shall have no further obligation with respect to development of any such Key Project.

Merger Agreement, Annex 2

Annex 2 Applicable Standards of Care

PROJECT | LAND RIGHTS INTERCONNECT PERMITTING AND PPA / OTHER AGRE | NAME ENVIRONMENTAL | COMMERCIAL DEVELOPMENT | | STUDIES |__OFFTAKE ITEMS | Scioto Ridge Maintain land nights Maintain PIM queue #U2-072 and | Punste OPSB and FAA Advanee any on-going | Ins necessary to fulfill capactty its aenciated ISA and CSA, and approvals to install G114-2.625 | PPA amendinent Obligations under the remove from suspension when MW umd 7132-3.465 MW discussions, post and d Amazon PPA (as amended) warranted lo meet construction WTGs at Project site, maintain required | schedule requirements. secunty for the Amazon TRIREM | | PPA to remain Taree ——@—-—— Pe A Sa _ | —___—— ~~ | (Cassadaga —= | Maintain land to support Maintain NYTS() queuc position Continue Article [0 permitting’ =| Maintain existing PPAs | required project facilities to ref. #387 and support completion | process to definitive decision in goad standing with | | meet capacity obligations of required amendments and Use beat efforts to oltam the understanding of TRIR | under current PPAs completion of Large Generator Department of Environmental impacts in the event the | Interconnection Agreement and Conservation documents project does not receive AS Tr | related aereements | allowing collection line Article [0 approvals. crossings at Boutwell Till State | Dar | __ rest | Mud Springs Maintain land rights required | Matntain PaciiiCer Generation | Pursue permits to install suitable | Pursac legal for at leat 60 MW of WTGs | Interconnection Queue positions | WTGsal site including avian and | proceedings with the | at cach one of the three | 542-4, #542-B and #542-C. | habitat studies in an effon to | Wyoming Public separate facilities that make Remove from suspension when comply with USFWS | Service Commission up the Project. wartanted to meet construction | requirements and amy other | toward a-Vieble OF PPA schedule rcquirements ensuring | nclevant bodics. | price. that the relevant securities ere ! mnvctert ima }inreler marie PX 001 Pili

7.6 Payment Milestone. (a) From and after Closing Date, Purchaser shall use commercially reasonable efforts to cause the Company and the applicable Development Companies to continue to develop the Key Projects in accordance with the applicable standards of care set forth on Annex 2. Subject to the preceding sentence, the details and manner of such development efforts and the schedule therefor shall be within the sole discretion of Purchaser. In the event Purchaser determines to cease development of and abandon any such Key Project prior to October 1, 2019, Purchaser shall so inform the Member Representative, including the reason therefor, and thereafter Purchaser shall have no further obligation with respect to development of any such Key Project.

PX 001 □□□

+ ‘ Merger Agreement, sec. 7.6(a)

7.6 Payment Milestone. (a) From and after Closing Date, Purchaser shall use commercially reasonable efforts to cause the Company and the applicable Development Companies to continue to develop the Key Projects in accordance with the applicable standards of care set forth on Annex 2. Subject to the preceding sentence, the details and manner of such development efforts and the schedule therefor shall be within the sole discretion of Purchaser. In the event Purchaser determines to cease development of and abandon any such Key Project prior to October I, 2019, Purchaser shall so inform the Member Representative, including the reason therefor, and thereafter Purchaser shall have no further obligation with respect to development of any such Key Project.

PX_ 001 Pll

Requirements Not Found in the Merger Agreement

No requirement that Innogy meet Milestones or even try to meet Milestones

¢ No requirement that Innogy construct any project

¢ No standard of care with respect to construction

No required schedule for projects which Innogy does opt to construct

No minimum expenditure or best efforts requirement for construction

No link between Milestone Payments and expiration of tax credits

Merger Agreement, Annex |

c. If an Adverse Change in PTC Law occurs

If there is an Adverse Change in PTC Law with respect to the Cassadaga Project on or before the date on which it reaches its Payment Milestone, the Payment Milestone Amount shall be reduced by $3.5 million for every $1 per megawatt hour by which the PTC Base Rate is reduced as a consequence of such Adverse Change in PTC Law, provided, that if the PTC Base Rate is reduced to less than $9 per megawatt hour, constituting a reduction of more than $15 per megawatt hour, the Payment Milestone Amount for the Cassadaga Project shall be $0.

TRIREME EXERGY HOLoines, Inc. AS THE MEMBER REPRESESTATIVE DATED AS OF DECEMBER 21,2017

December 2017 — July 2018 The Pre-Closing Period => i a aS □□□□□□□□□□□□□□□□□□□□□□□□□□□ a

December 21, July 26, 2017: 2018: Merger Cassadaga Agreement Closes Signed

April 2018 Innogy Presentation to SE Board: NYISO and National Grid Move COD to Late 2020

Project wen confidential Cassadaga Schedule Risk (2020 Target COD) () innogy

Original plan was for a 2019 COD, with energization in Sept 2019; however, NYISO released new Facility Study (Part 1) in March 2018 (after signing Merger Agreement) indicating energization of the interconnect in Oct. 2020, reducing the time buffer available to commission Cassadaga from 15 months to 3 months

PX 072 at 5 P|}

March 1, 2018: April-May 2018: National Grid Innogy conducts moves COD to additional 12/2020 financial | / modelling ee oS) ee a ee

Ei" a i | ~ | | x December 21, April 2018: April 2018: July 26, 2018: 2017: Plaintiffs reject Innogy learns Cassadaga Merger Innogy’s offers that point of Closes Agreement toassist with interconnection Signed development must be moved ie

July 26, 2018 Innogy Closes on Cassadaga

Innogy Submits Army Corps Permit Application

Joint Application for Permit Submitted to the Buffalo District Office of the U.S. Anny Conps of Engineers and the New York State Board on Electric Generation and the Environment for the Cassadaga Wind Project Checks Shoekine se felnaelsit □□ See ee ee Chau Signature of Applicant Date ind = a Ze SANG. ZO} Applicant Must be (check all that apply): Owner [v1] Operator Lessee Wind, LLC Walertrent Pisce, Floor PA 15222

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Innogy Considers Alternatives in Connection with Final Investment Decision (“FID”)

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21, 2019 — Innogy Board Presentation in Connection with FID

Cassadaga — Decision Tree Gite confidential Taking FID now and enable a 2020 COD remains () Appendix 2 the most attractive options for Innogy ce

innogy SE Boi aa | 21st May 201 Vue Gate f ‘sien * Full rejection of the Article 10 Amendmeani 5 a 1 would have a severe impact but is exiemely ‘a en! unlikely: however delays could occur 7 L j rm | ee [ees = Sunk cost in the worst case wp to. -337 im (CAPES Cae ole | ii ieee + Lassof the full IMC and avoids milestone ry | bas: bawment Io Terra Geom) silient Pr 1 i i | ra eae: Atiomey ~Client Privileged ee Preserve — 4 ne LH See wees —* SUNK Stquslion and devalopment cost af 57m aie ha a i Me: i /PPA security interconnection security tir re ys “7m Sem 430m, sunk acquisition and development cost a = = $40m) plus 54m (additional PPA security and devolonment cost from today until Mov. 2019) ee om EL « Allsale cations (before or after COD) yield value Lins i : loss compared ta simply owning due to high dev | fee and buyers will base valuation on 3rd party . Er AEP estemates (14% lower than Innogy view! © Sunk acquisition and development cost of | ee eel er saci 54m, nen security i jt 7 §20m, sunk aequisition and development Sost seonians feng Servet ("Attorney -Client Privileged "Yeading tn 2 = hotgh indicarithy oy roial loss exposure of ube xX 1 30 at 15 inmogy SE - May, 2 el P | |

ee 59 May 21, 2019 — Cassadaga Final Investment Decision (“FID”) SE fidercial

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Supply: Turbine supply and transportation capacity is already constrained for 2019-2020 due to the high demand for wind projects being constructed to come online before the 2020 ITC/PTC deadline. Therefore, it is necessary to sign relevant turbine supply, and transportation contracts in Q2-2019 to secure equipment and price certainty, driving the to request FID now.

Timeframe: FID needs to be taken now in order to mitigate potential schedule challenges. Time critical contracts as the Large Generator Interconnection Agreement does not accommodate a Limited Notice Structure (LNTP). is a maior driver of the project schedule for a 2020 COD. Ee ee prc anal jsir hy iezivon ser aeons

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a 66 39 May 21, 2019 — Cassadaga Final Investment Decision (“FID”) aT Canfidential

ces St tea a scabs chin ial Maw 2027 GF Fara Proper: Cprnaciagn, Wee Yors, Uk Una! lrwestmens Deco =] Tyee et ee eee ai a | Reany/ member: | Rempensbie tor propoesh renewables Foy render (Senne Andres Toong/Prank Falkenho! (FAS CEOS} | 2. Strategic fit evaluation The Project is a result of our decisions on: USA market entry (2016), Safe Harbor turbine purchase (2016) and the acquisition of EverPower’s development pipeline and team (2018), and is the second project opportunity toward achieving our business | goals. The Project aids in diversifying innogy's (North-)Europe long portfolio as a valuable meteorological hedge. With COD in 2020, the Project will be a main contributor to our overall onshore target to install 350-SOOMW of wind energy capacity in | the US by the end of 2020. aera narra lcares oma □□□□□□□□□□□□□□□□□□□□□ aes eee riiet mien wend Semen mo ret $25 oo Tor ae fe ee Sees caeien raise beauier BOR ree

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2 + sz □□□ May 21, 2019 — Cassadaga Final Investment Decision (“FID”) SE Caeftential seesot pemomaros [perenne «Fr ney SER gitcita pag eagg i end Fave arcs Saas, Wow Work UA vn rverome Oecoen il GALE aEbenmae = gl Facil Permitting risk: schedule delays receiving Article 10 second amendment approval for POI location and USACE wetlands permit. lf both permits are not obtained, achieving 2 2020 COD is unlikely.

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Post-FID

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O os uly 26, 2019 Email from A. Young to J. Spencer & R. Brinklow

Lage Young, Andrew 7/26/2019 5:55:24 PM ‘im Spencer’ [jspencer@triremedevelopment.com] Ross.Brinklow@terafinma.com Falkenhof, Frank |fo=ExchangeLabs/ou=Exchange Administrative Group (FYDIBOHF23SPDLT}/en=Recipients/en=Lbf2stat2 656420bbab82528954197 2e-Falkenhof, Frank]; Vought, Tim □□□□□□□□□□□□□□□□□□□□□□□□□□□□ Administrative Group □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Tim}; Casey, Richard □□□□□□□□□□□□□□□□□□□□□□□□ Administrative Group (FYDIBOHF235P O01 T}/tn=Recipients/cn=S9fer 7007caccabb5 SeadfdccsOfde-Casey, Rich] RE: Baron Winds Supplemental Update - TED to your previous inquiry regarding Cassadaga, which is far more advanced development-wise, We decided internally to keep advancing the project. In furtherance of that approach, we have made the ssary commitments and major payments with turbine suppliers to deliver turbines in time to support a cop. There are, of course, still several hurdles and some outstanding permits and development items ecure to assure we can achieve the 2020 COD, most of which are outlined in the July 3 quarterly te we sent. AD @ ieLeiliy WSLS Le Hie yeu > SLituyvIt wire eeu LY ve oS keyed wire ie dl

regards to your previous {naviry regarding Cassadaga, which is far more advanced development-wise, we decided internally to keep advancing the project. In furtherance of that approach, we have made the commitments and major payments with turbine suppliers to deliver turbines in time to support a 20 coo, There are, of course, stil] several hurdles and some outstanding pera@its and development items secure to we can achieve the 2020 cod, most of which are outlined in the July 3 quarterly date we sent. hope this helps. Please let us know if you have any further questions. gards,

PX 142

5, 2019 Internal Emails between J. Spencer and R. Brinklow □ From: Jem Spencer [jspencer@triremedevelopment.cam] Sent: 2:12:31 Pht Ta: Ross Brinkbow [Ross.Bri nklow @terrafirma.com] Subject: Re: Baron

> On Aug 5, 2019, at 1:35 PM, Ross Brinklow wrote: > > Ok. We need to get the payment before October 1 or we have to wait until COD I believe. That's why this month I think we should get more aggressive with them i > Message----- + Front Spencer [mailtorjspencerdtriremedeve lopnent.com] : August 2013 15259) dm me cata From: Jim Spencer [jspencer@triremedevelopment.com]| >; Let’s see if we can use this consent they need to leverage them. I have a > Litigator looking at the circumstances I we we Peeve any aiaitens on Baren with Innogy, so that's good. we still have crc and the Four Seasons private homes in the fund for another year I suspect. any further update on Cassadaga? I want to start putting pressure on them soon. -----Original Message-<"=" >> Jie spencer (mailto: □□□□□□□□□□□□□□□□□□□□□□□□□□□ .com] Sent: 31 July 2019 O2:27 oe To: Ross Brinklow

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13, 2019 Letter from J. Spencer to Innogy WLA 13, 2019 In accordance with the Agreement, the Payment M ilestone Amount of $69,700,000 ts to Suite 2301 . sc cr : paid to the Company Member by wire transfer of immediately available funds to the Company Member. Ret

Reference Sincerel y. 21, 201 Renewables LS Energy . Trireme Energy Holdings, Inc.

Representative bel and i Project is duc Yer In | iJ F aid to the Con Tale President & Chief Executive Officer

‘Y), Jatdes Spencer President & Chief Executive Oflicer DX095 □□

+ 26, 2019 Email from J. Spencer to Innogy

Message From: Jim Spencer Sent: 9/26/2019 3:08:51 PM To: Young, Andrew j/o=ExchangeLabs/ou=Exchange Administrative Group □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Andr] cc: Mary Lappas [Mary. Lappas@terrafirma.com]; Taylor, Kimberly A. [kimberly.taylor@morganlewis.com|; Casey, Richard [/o=ExchangeLabs/ou=Exchange Administrative Group (FYDIBOHF23SPDLT)/cn=Recipients/cn=S9fe79c7007c4cc3bbS5983dfOccs0fd6-Casey, Rich]; ‘Ross Brinklow (Ross.Brinklow@terraf irma.com)' [Ross.Brinklow@terrafirma.com] Subject: Cassadaga

This email is notice that the Member Representative is withdrawing the notice given pursuant to Section 3.3(b)(i) that the Payment Milestone with respect to the Cassadaga Project had occurred as of August 13, 2019. This email notice Is without prejudice to any of the Member Representative’s rights, and the Member Representative expressly reserves all rights, including with respect to whether the Purchaser has satisfied the applicable Standards of Care with respect to the Cassadaga Project.

James Spencer, Member Representative

DX106 Pl

at ee ic □□□ = Peeeeeeseey dares ul sist esseidh tontetd 4. ae SUN MESES : All figures are USD milifon {unless ofhenvise stated]

- Payment of $9.4m received in two tranches during Scioto Ridge 200 N/A NIA | NA | 2018 i - No further payments due on the project

Payment of $3.7m received May 2019 currentlyhela | Mud Springs 240 | NIA NA WA | within TEHI structure | | « Wo further payments due on the oroject Ba ————— | - Awaiting final permitto start construction, expected | | | Qt 2020 Cassadaga 126 Q3/O4 2020 69.7 - Earn-out payment to be received on COD, expected to: | be G4 2020 | » Earn-out calculation explained on page 3

weighting X125 at 3 □□ □□

— () 1 = f J □ 19, 2019, Cassadaga Obtains Army Corps Permit

ee From: Readling, Chip Sent: Thursday, December 19, 2019 10:50 PM

Wanted to share some holiday cheer prior to the end of 2019.

Today, Cassadaga Wind received its wetland permit documents from the Army Corps of Engineers! This is a huge milestone for Cassadaga and will allow us to proceed with full project construction.

Big congratulations to our own Pat McCarthy, Director of Environmental Affairs and Permitting for leading the permitting efforts. Also big congrats to Leah Grossman (Project Development Manager), Stephanie Ottey (Development Associate) and everyone else involved with moving the project forward. Great job, and let’s keep pushing towards COD! Chip

176 □□

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4 . ry 22, 2020, New York Executive Order 202.8

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“> EG, ‘, ) re fo oo AL-AWO> PESOS Lis BLUE BARA, FRrane AAR QUAL PL ed Le Sly CALL □□□□□ utilize. Each employer shall reduce the in-person workforce at any work locations by 100% no later than March 22 at 8 p.m. Any essential business or entity providing essential services or functions Ln po pants fe me a ey tt at a a, rou ' = □□ CUGgernting Usamber > No. 202.8 EXECUTIVE ORDER Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency

. = * . 8, 2020 Email Granting Limited Exemption

fren Cragg □□□ CE MOUs BC ADS RATE GD TY SC PR | a OR POO TOM | Ce A Ta Vor erangel fe ees adeno Goo fares Eiec ipderyiern Obob faiorina! Prank) Gee, Sard arturpe Ade neds ate cup LGPL Thine ihe peer □□ oa ae 200 Pete eb ie LE de-Coney, oh], Pete. lett incdac teres ienwtc □□ Paes aS TINbacoeaetancteh leraqugs. |; Waites, lle □□□□□□□□□□□□□□□□□□□□□□□□ daderinatrbcativa trae "7 □ oe (PPOmNCHE oneigc genet icrre 015 TERE leaded ad bok ta, Led]; Realing, Ch □□□□□□□□□□□□□□□□□□□□□□□□□□□□ Aden estat ee Cr tee Please see the most recent communication from the New York governor's office regarding construction activity at Cassadaga, below and attached. Consistent with a call we had with the governor's team, DPS, and NYSERDA this evening, only the following work will be authorized at Cassadaga Wind through April 29:

Make-safe work and work related to {1) Point of Interconnection in the switchyard, a joint effort between Cassadaga and National Grid {approximately 12 workers}, (2) erection of meteorological towers (Met Towers) to collect necessary data (approximatefy 5 workers), and (3) Stormwater Stabilization to ensure that access roads and laydown and staging areas are stabilized (approximately 3 workers, on an as-needed basis).

wapemenial Lada Wi cd euros ne ed? too the recent comm erenaies Inoee The Mew fork gaworra sitios regarding Coss Lruction actedy 31 and Conmisient with a call ane hue with the pionner’s team. DPS, and MTDIDA ths ewering. the work will be authorined at Casuadaga Wied theeugh Aprd 24: work and wore pelaved to [1] Point of ineercommectiqe: in thee welichyaed, a joint etlort brtwnen and Grid [>ppronimutely 12 workery), (2) erection of meteorbagical tomets (Met Towerd} to collet data [apptonimasety 5 workers], ared (3) Soorrmanter Stabjilewtion to eAvETE That accreh aad ond waging areas ane stablined (apse asi matety 3 wecoers. on an ay-needed bain].

DX142

1-2, 2020 Emails Between Spencer and Readling

From: Jim Spencer Sent: Wednesday, April 1, 2020 6:02 AM Chip, It would be helpful to understand the status of construction at the site. | realize the FNTP was issued last month but what can you tell us beyond that? eS SESE From: Readling, Chip |/O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=6788342807D0417BA368276BFCFB7E43-READLING, C] Sent: 4/2/2020 12:08:49 AM To: jim Spencer lispencer@triremedevelopment.com] cc: ross.brinklow@terrafirma.com; Falkenhof, Frank (/o=ExchangeLabs/ou=Exchange Administrative Group

Hi Jim, get a construction update and provide some information. We are on track for a Q4 2020 COD however the rapidly evolving COVID-19 situation in New York may result in a temporary shutdown of our construction activities at Cassadaga. This is a dynamic situation. Regardless, I'll provide info on the construction status.

X 234

‘ . ae 2, 2020 Internal Terra Firma Email BS eee eee From: [Foss □□□□□□□□□□□□□□□□□□□□□□□□□ Sent: Pe Toe Ashipy Richardson [Ashiey Richards terrafinme Ler ce fon Mylan tertafirrna com] AL; Ew Hi iy racemenendation would be hall of what we hiner bow a0 D0. Weld pou agree with thang? Tharss From: Ashley Richardson Sent: 02 April 2020 09:45 come To: Ross Brinklow Eoin Hyland COWL ovate ieee’ Subject: RE: EvP valuation Fromc Hi Sen: 0 Ashi i at ae el CL cithand At aammoenciee in Mecember now impacted by recen Ce Eoin is Innogy 5 development subject to finance? is the likelihood of commencing in Vecember how in pacted by recent Sublet? hh Aahle Can they even start on site with social distancing restrictions There must be a backlog on existing projects building up. that could impact the start point of new projects. The issue | see here is that this earn out is time bound to December. ah 70,206 Pe 58.463 20% 6,720 Pee SS —<_— DxX144

9, 2020, Ross Brinklow Reduces Likelihood of 2020 COD 0 60% to 30% are USD million (unless otherwise stated) December 2019 I probability : - Awaiting final permit to start construction, expected yg weighting 126 3/04 2020 6o.7 Earn-out payment to be received on COD, expected to / be G4 2020 > Earn-out calculation explained on page 3 DX125

From: Ross Brinklow [Ross.Brinklow@terrafirma.com] Sent: 4/9/2020 3:52:16 PM To: Ashley Richardson [Ashley.Richardson@terrafirma.com] ce: Eoin Hyland [Eoin.Hyland@terrafirma.com] Subject: RE: EvP valuation

Hi Ashley My recommendation would be half of what we have now (207) iid you agree with that? DxX144

Plt

* D □ April Terra Firma Presentation LIPDATE 01 2020 ea □□

The Cassadaga project is a 126 MW project and the most valuable development asset in the portfolio acquired by Innogy in 2018.

TED would receive a maximum earn-out payment of $69.7m if the project isto reach COD by 2020. If COD isnot achieved by this date, no payment is due. Following the Covid-19 gutbreak, it was decided to move the probability weighting of the project achieving its payment milestone downwards from 60% toj0%] due to the following: The project islocated in New York state, the worst affected area of United States with over 250,000 confirmed cases of Covid- 19 as at 20 April . [tis not clear that construction work on the project could continue in the same manner and at the same pace given social distancing measures and working restrictions Wind developers are lobbying the government to extend eligibility for tax credits through to 2021 —wind developers that miss the deadline of 31 Dec 2020 are not eligible to receive the full tax credit under the current regime

DX259 at 3 □□□

4 T D a Subcontractor COVID Policies O'CONNELL ELECTRIC COMPANY

For any Field or Office Employee that knowingly have been exposed to a quarantined or Ss] fe M i N S ( - infected person, they shall remain home for a minimum of 2-weeks. If Field or Office d me Sd Employees do stay home, established notification procedures shall be followed. RENEWABLE ENERGY

RI] There is a strict ban on our premises of anyone having symptoms or having been in SIN “> contact with confirmed or suspected novel coronavirus pneumonia patient during the CONSTRUCTOR last 15 days. ravel: Effective immediately, emplovees shall avoid all mass transit (¢.g.. planes, trains, etc.) to or from their current locations for business travel. Anyone who uses mass transit will not be allowed in the office or on site for 14 days from the date of their retum they have no symptoms and have not been in contact with anyone who has been with COVID-19). Employees who are currently working at a project site should

. * □□ 4 Restrictions and Challenges

All travelers entering New York from a state with a positive test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate, over a seven day rolling average, W ill be required to quarantine for a period of 14 days consistent with Department of Health regulations for quarantine.

CE Saatins Cham vy SS res * ranis Crestor Cambie D> Che New Cimes

EXECUTIVE SEDER How the Virus Slowed the Order 205, Issued June 24, 2020 ° . Booming Wind Energy Business Renewable energy developers have struggled to finish projects as the pandemic disrupts construction and global supply chains.

October 26, 2020 New York Times Article □□□

American Wind Energy Association (““AWEA”) Lobbies for Extension of Safe Harbor Deadline

SS a AMERICAN AWEA WIND ENERGY ® ASSOCIATION Pl

2020 - Tax Credit Deadline is Extended

Treasury, IRS provide safe harbor for taxpayers that develop renewable

energy projects Because COVID-19 has caused industry-wide delays in the supply chain for components needed to complete renewable energ) IR-2020-106, M ae . ; a j wee *Y projects otherwise eligible for important tax credits the IRS has issued Notice 2020-4] | Por | to provide tax relief to affected WASHINGTON — 3 taxpayers that de taxpayers. biomass, geothermal, landfill gas, trash, and hydropower, and use technologies such as solar panels, fuel cells, macroturbines, and combined heat and power systems. Because COVID-19 has caused industry-wide delays in the supply chain for components needed to complete renewable energy projects otherwise eligible for important tax credits the IRS has sued Notice 2020-41 |to provide tax relief to affected taxpayers. For some projects that began construction in 2016 or 2017, Notice 2020-41 adds an extra year to the four year “Continuity Safe Harbor" provided in existing guidance, such that if these projects are placed in service in five years construction will be deemed continuous. DX158

Construction Resumes on Cassadaga

9 | 19, 2020 Letter from Innogy to O Connell Innocy Cassell Electric Company, Ine. Phillipa Road WY 14364 Winter E. 19), 2020 ‘ Wied LLC - Madice of Reopening, fir.

Innogy received notice today that Phase [ reopening is effective immediately for the Western New York Region. As part of the Phase | reopening, construction can resume at Cassadaga Wind Project.

Wind LLC By: GER

Senior Director of Comstraction

Parles, Vice President, Power (hreup, O' Conseil Elscsrse Comqurry, Inc. Richard Casey, General Counsel & Seercumry, Innogy Renewsbles US LLC Amanda General Counted, lnnegy Renewables LS LLC Jade Wahon, Project Manager, Innogy Rencwables US LLC Devid Clark, Construction Site Manager, Innogy Rerewables US LLC Cesar Project Manager, Innogy Restwables US LLC

DX153 Pll

21, 2020 Minutes of Call with JBS

Cassadaga Weekly Progress Meeting 5/21/20 Attendees: JBS~ Jeremy Ingram, Branen Hurst, Mare Scott, Ben Ingram, Dusty Clarke, Robin Phillips, Brenda Shore, Bill Ward tanogy — Jeff Puterbaugh, Jade Walton, Randy Buntjer, Katrina Blanchard, Mattia Rauzi, Will Savage, Kenny McGarry, Bob Crier sp General Discussion:

e Jade Can you give us a timeline for the mobilization? e Marc We are looking at the email and making sure we understand all the requirements. Once we get all the things we need for the requirements at the jobsite, we can get adminis started back up. ° Randy |s there some kind of estimate on when you can be back on the jobsite? We need to get Jeremy back on the job site and we need to notify the township.

« e Branen We are going to get our guys on the jobsite fairly quickly and we need to get the subcontractors back there also. \Iimgeneral we are looking at possibly 2 weeks. We have

PX 492A □□□

Schedule Provided June 25, 2020

Cassadaga

F-vhibit B-1 - Milestone Dates

or ———_

= ca | aay emma Milestone Date ibetabsieesttiaaiglt STi the ies |Site Mobilization | Contractor | bo werk on what bind of acy a shooeee Road & Foundation: Gaull NW 10) ies Miao Contractor September 16, 2020 September 25, 2020 Temporary road improvements) Access Road & Foundation Group West (4) + 731 & T40 September 30, 2020 | Access Road & Foundation Group E (3)+751& 755 October 20, 2020 October 29, 2020

28, A i ~ ar ae trmenPiewermnss | Aocess Road and Foundation Group SE (7) November 26, 2020 etl pee Guaranteed Substantial Completion | Contractor | |S December 21, 2020 January 11,20) you for the acceteratedxte NOTE: This schedule represents a day for day delay slide of 10 weeks.

PX 308 & PX_308A P|

25-26, 2020 Emails between J. Walton and JBS foranon@ijeete eoutinrsic. □□□ 6/26/2080 1015.43 akon, inde □□□□□□□□□□□□□□□□□□□□□□□□□□□□ Admunisteative Grows T)cnefecipiensaltna dite STI2e etShOb Baiatieh Wanon, Mapey Setup! □□□□□□□□□□□□□□□□□□□□□□□□□□□ Mars feet □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ □□□□□□□□□□□□□□□□□□□□□□□□□□□□ Admimigiratin: Grows oeher □□□□□□□□□□□□□□□□□□□□□□□□ 7 □□□□□□□□□□□□□□□□□□□□□□□□□□□□ |; Camadaga

Gents,

Thank you for the schedule. As was previously discussed, the revised sequencing schedule is in line with the so we revised milestone that have been agreed upon. he's back ar

Hurst] Gea Innogy rejects the 12 week schedule extension proposal.

| shi ts For future consideration, Innogy will be looking for context and justification on why a 43 day work suspension translates into a 84 day schedule extension. Innogy acknowledges the need for re-mob and limited reclamation, but 41 days to Lie complete those scopes is not acceptable.

Friday, dune 2 Branen Hurst

ark vou for the PX 308 li

JBS Schedule Provided July 16, 2020

; Mat . □□□□□□□□□□□□□□□□□□□□□□□ Milestones 83 days Wed 9/2/20 Mon 12/28/20 RE: Access Road & Foundatian Group (10) {also includes Odays Wed 6/2/20 Wed 9/2/70 is the revised schedule discussed previously. . if any questions but this has been reviewed ext Temporary road improvement s} apologies for my error yesterday on the wrong scl □ : Access Road & Foundation Group W {4} + T31L & T40 Odays Wed 9/16/20 Wed 9/16/20

| Project Manager snooga. Twava Access Road & Foundation Group E (3} + 151 & T55 O days Tue 10/6/20 Tue 10/6/20 443.4120 | G: 423 619.1651 Access Road & Foundation Group NE {9} iday Fri 10/16/20 Fri 10/16/20 Access Road and Foundation Group SE {7} 1day Tue 11/3/20 Tue 11/3/20 35, 2020531PM Guaranteed Substantial Completion O days Mon 12/7/20 Mon 12/7/20 ppy □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ □□□□□□□□□□□□□□□□□□□□□□□□□ Final Completion O days Mon 12/22/20 Mon 12/28/20 RE: Schedule-revised

PX PX 417A P|

JIBS Schedule (provided June 25, 2020) Revised JBS Schedule (provided July 16, 2020) Cassadaga Civil Schedule qT

- Milestone Dates - Milestones 83 days Wed 9/2/20 Mon □□□□□ Milestone Tang Guaranteed Completion Date Milestone Data Shaw enOM pa iase □□ trrciaosTl Access Road & Foundation Group NW (10) (also includes Ocays Wed 9/2/20 Wed 9/2/2 _ | Contactor | Temporary road improvements) & Group NW (10) (also incudes oa a car ee Coniractor Sopember 16, 2020 Sepinmber 25, 2020 Access Road & Foundation Group W {4} + 131 & T40 Odays Wed 9/16/20 Wed 9/16 & Foundation Wee! +737 740 September 30, 2020 FY □ □ Access Road & Foundation Group E [3}+7514755 Odays Tve 10/6/20 Tue □□□□□ Foundation E TS & 138 Contractor October 20, 2020 October 23, 2020 Access Road & Foundation Group NE (9) iday Fri 10/16/20 Fri □□□□□□□ & Foundation Group NE (3) Coniractor October 30, 2h) and Foundation Group SE (7) | Contractor November 17, 2020 November 28, 2020 Access Raad and Foundation Group SE (7) iday Tue 11/3/20 Tue □□□□□□ Corenactos January 11, 2020 [fsa era ae rae Guararteed Substantial Completion Odays Mon 12/7/20 Mon □□□□□ schedule represents a day for day delay slide of 10 weeks. Final Completion Odays Mon 12/28/20 Mon 12/21 X 417A

T 6, 2020 Letter from JBS

2020 Cassadaga LLC RWE Americas, LLC 120 North Riverside Plaza, Suite 4740 Chicago, IL

cn, Haccordance with the requirements of Article 110fthe Construction Services Agreement, Contractor we, hereby provides Notice to Owner of a Material Event for Contractor causing an impact to the Work wees to employees of Contractor, and Contractor's Subcontractors, being exposed to the Covid-19 Contractor became aware that several employees had been exposed after test reports were returned after following New York Forward and New York Travel Advisory guidelines for new crews doe tm ‘ . arriving into the State. All employees that were exposed were req uired to quarantine until they could rears Provide a negative test result per the New York Forward and New York Travel Advisory TEQuirements. The required quarantining of employees has caused an impact to the Work. date, Foomdanon Compieaon daien, Subwearcial Completion date, and Final diate upon the impact of Coctractars inaiility to comlinae work on fbenedations for the We are evalusting the impacts of the delay and using all reaseaoble commercial to mitigate the exst and schedule impact of Uke delay, amd will provide more information ws the anal Impacts are moce felly known. [ES Exergy Solutions, LLC Sincerely,

DX283 P|

20, 2020 Email to JBS

From: jade.walton@rwe.com [mailto:jade.walton@rwe.co mm] Sent: Thursday, August 20, 2020 9:07 AM To: Marc Scott ; Happy Schimpf ; Robin Phillips ; randy.buntjer@nwe.com; will.savage.extern@rwe.com; jeff.puterbaugh@rwe.com Cc: Branen Hurst ; john.badéeusz@rwe.com Subject: RE: Cassadaga - JBS Scope Change Order # 6 Ware,

is currently behind the revised schedule submitted July 16, 2020. The current schedule shows 6 foundations complete as of today, however, to date 1 foundation is complete. How does JBS intend to correct the schedule slippage? ‘ve made a recommendation to John and Jeff to withhold future progress payments until a written recovery plan has been submitted and approved along with corresponding updated CPM schedule. PX_392

Fl

fi JBS 20, 2020 Response from

From: Marc Scott Sent: Thursday, August 20, 2020 10:13 AM To: Walton, Jade ; Happy Schimpf ; Robin Phillips ; Savage, Will ; Puterbaugh, Jeff Cc: Branen Hurst ; Badeusz, John ; Jeremy Ingram Subject: RE: Cassadaga - JBS Scope Change Order #6 Hi Jade, We do have a recovery plan in place. We have already put the following measures in place to increase production: 1. Acquired a third crane to assist with bolt cage/ rebar installations — will arrive tomorrow or Monday. 2. Increased man power — We have mobilized additional crews to assist with the work. 3, Discussed polylithic concrete placements with our supplier. This will allow our concrete provider to utilize their out of town drivers that need to travel 5 hours each day; this travel time cuts into their HOS, which in turn prevents them from being able to legally place concrete monolithically more than once every few days. Therefore, we will place up to two bases in one day, (mornings) and can then place up to two pedestals in the afternoon. The out of town drivers can return home after the base placements, and we can utilize local drivers for the afternoon pedestal placements. PX 392

25, 2020 Emails with JBS 7a 1 ea > SS — From: john.badeusz@rwe.com OE This is a big quality problem. Ry i; 1 = | also understand it’s the first foundation/pedestal. We have a chance here to make the next 36 right! E Hap fer Seok Tot Badeusz, John

Projected COD is Adjusted to March 2021

4 a 30, 2020 — Innogy Adjusts Proj ected COD Development Update — 03 2020 September 30, 2020 ae te el Re Thee □□ bl sh ee ee eae a eed □□ | oe ta ke pal Ee pe it Since this Payment Mikeitone has been achieved and paid TED. the Martics agreed by phome on Dear 11, 2008 to cease reporting its develapment statues |= Letra: 100s . felly “ecued Sept 1; | © Asiele 10 * Asnendment z | rewain in | * PILOT agreement with Chouiexpes Scthack Agreements Tole aoonmmndaic selocatios and elect Caanty industrial Dew Amceey ciocoled by @ PIM rated upgrade cost fea 4 i is details st “THI” deapite Na = ‘ «az et mae | come | = @ Project now estimating a 5.5.20 @ @ PYM requircs oidaticmal we ka > = a es | Facilities Study related na = Ag Ubonmal transfer amit x“ ‘ A T rs 7 a = ‘Moet ted i A EA adios, a ( ( ) ) T [ r a W C z “f * | GRU gcd ad onded te |B OF & Ids. Project 1s Facalinies Shadies Agneorscn! US Now 4019. Shady os Ongome. 201 2 : Hs 7 NYSEG upgrades may maguire | * We { W { | [ snilietn , rag r i w j | worms estumatng 6 WIG online by depecdicns an whether nearby in weet Hall Hall prpoot os bad a We NYSEG wishes to pinch by 5 ts = Tondo Pak } ry i r) | y? □□ Peapenubuity ania pool An fe a a! ea a Pale Aner. Oh, ae « Limited Operation muddy eds resalts received June 4, SO Wa anany edin to: mam epgrades Tse study imdbeatod that ne appreval and roqeimey adeliz wtsal | | » Approwimately rs of ancess wads opoeraiedal minster at Mitigation acreage, Addn inusatled expected prior a ie miligation sarage hiss been nu 5 ai Se soesmeafocrnisy | wie 113 una bs rat Soe raster upgrade Sppenvel Ea DEC the perclewnal aff the first foandation pettrrod @ Pommancol ine tower ben boon (Ta). Foundation ix boneg cemared Sad comeetreted conpletely ncplioed. Foundation production delays am] joules achieve | crane pad ofeach Reve poor the propect i and additional 2-7 meskes behind schodaie

26, 2021 — Cassadaga Achieves COD

9 5 □ en a. a = Le a ® a bos a RWE’s U.S. Cassadaga Onshore Wind Farm in : operation

Essen, 26 August 2021

“Cassadaga marks another major accomplishment in our expansion oa Ge of renewable energy in the U.S. market. As one of the leading onshore wind companies our strategy for renewables is geared for growth. We look forward to providing clean energy end long-term benefits to the i” \ local community for years to come.” i \ ee.

7 VI jects Mi t CO ry COVID, Several Other Projects Miss Target CODs RE: Construction Project Update - Key Milestone Dates Silvia: As reference for today’s catchup call Cranell Commissioning status - 70 of 100 WTGs fully commissioned and turned over to Operations All 100 WTGs fully commissioned by Vestas and turned over to Operations - August 22, 2020 Raymond East Substation energization dag September 7, 2020 All 91 WTGs generating vember 15, 2020 Raymond West Substation energization date - Sepigmmer 7? - September 15, 2020 Vestas turbine deliveries start - Segaber 13, 2020 All 109 WTGs eengaating.- Febru 2021 Boiling Springs Substation energizatiJqate - October 1, 2020 All 60 WTGs gener, December 15, 2020 Scioto Ridge Substation energization date - Agge’3, 2020 All 75 WTGs poperatiag - Nowaer 26, 2020 334 Cassadaga Substation energizggman date - November 15, 2020 All WTGs generg December 31, 20207 P|

Plaintiffs’ Experts “° RG

Experts Kr = = 2 mt

i Sale ; 2 is PA &- . \ ” oe — Ndid }

; re (4 Fultineer Mark Mezyk Michael Hickey

5 5 \ . aintiffs’ Experts’ Opinion

Research Group Expert Report in connection with: he Based on our professional experience, it is reasonable to believe that with prudent project and construction management, the Cassadaga Project could have achieved COD in 2020 notwithstanding delays caused by COVID. Southern District of New York Civ) Action No: M-cv-5015 (VEC) Related to: Cassadaga Wind Farm Project

at 12-13

42 £3 aintiffs’ Experts’ Proposals

Add resources (labor and/or equipment) to perform the same amount of work in a shorter duration of time —

TRIREME ENERGY HOLDINGS. INC.

2. Add a night shift

3. Work weekends or increase work hours in the work week Cassadaga YIM 2 00 cape

at 12-13 Plt

X Permit Prohibits Night Work in Towns Encompassing Project Site

ee 131. the Towns of Charlotte and Arkwright, construction unex GENERA hours shall be limited to 7:00 a.m: to 3:90 p.m., on Monday through Saturday, and 3:00 a.m. to 3:00 p.m. on Sunday, with the exception of wind turbine construction activities which may need to occur during extended hours beyond this CASE 14-F-0490 - am schedule on an as-needed basis to address unusual ce: circumstances. In the Town of Cherry Creek, construction Pul work hours shall be limited to 6:00 a.m. to 9:09 o.m., at Monday through Sunday, with the exception of wind turbine construction activities which may need to occur during extended hours beyond this schedule on an as-needed basis to address unusual circumstances. Construction work hour limits apply to facility construction, and to construction- related activities including the delivery and unloading of materials, and maintenance and repairs of construction savin ie equipment at outdoor Locations, since these activities can COMPATIBIL: result in extensive noise, large vehicles idling for extended periods at roadside locations, and related disturbances.

ee aintiffs’ Experts’ Proposals

Add resources (labor and/or equipment) to perform the same amount of work in

a shorter duration of time —

2. Add agmeht shift

See, 3, Work weekends or increase work hours in the work week Cassadaga VENUE Fan £ buycue

at 12-13 P|}

4 Response to COVID Related Challenges

*BRG Expert Report in commection with: TRIREME EXERGY HOLDINGS, INC.

INNOGY RENEWABLES US LLC The COVID pandemic may have been unprecedented, but the same standard measures used to mitigate delays and overcome challenges in construction before COVID were applicable during and after COVID. [Al]

See Conese Director

at 4 P|

Studies of Labor or Equipment Availability

oi ee ge ; | j 5 7 r f ae = | \ Am

. 1s TA

172. IRUS violated its general duty of good faith by purposely evading the spirit of the

bargain through inaction and slacking off. That is, IRUS knowingly and intentionally failed to get back on schedule for a 2020 COD, or even try to do so, because it wanted to avoid triggering the

Cassadaga earn-out payment. Plaintiffs’ Proposed Findings of Fact and Conclusions of Law (ECF No. 224)

* Original plan was for a 2019 COD, with energization in Sept 2019; however, NYISO released new Facility Study (Part 1) in March 2018 (after signing Merger Agreement) indicating energization of the interconnect in Oct. 2020, reducing the time buffer available to commission Cassadaga from 15 months to 3 months

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Hi Jade, We do have a recovery plan in place. We have already put the following measures in place to increase production: 1. Acquired a third crane to assist with bolt cage/ rebar installations — will arrive tomorrow or Monday. 2. Increased man power —We have mobilized additional crews to assist with the work.