Tonopah Solar Energy - Chapter 11 Bidding Procedures / APA Summary

Bidding Procedures / Asset Purchase Agreement Summary

Parties Involved

• Seller: Tonopah Solar Energy, LLC, a Delaware limited liability company
• Purchaser: Sons of Liberty Construction, Inc., a Texas corporation (Stalking Horse Bidder)
• Neither the Purchaser nor any of its affiliates, officers, directors, managers, shareholders, members, or any of their respective successors or assigns is an "insider" of the Debtor, as that term is defined under section 101(31) of the Bankruptcy Code
• No common identity of directors, managers, controlling shareholders, or members exists between the Debtor and the Purchaser

Assets Being Sold

• Substantially all of the Debtor's assets, including all of Seller's properties, rights, interests and assets, whether real or personal and whether tangible or intangible, which exist as of, or acquired by Seller after, the Agreement Date, but excluding the Excluded Assets (the "Purchased Assets")
• The Purchased Assets include:
  • All right, title and interest of Seller in and to the real property leased by Seller from the BLM ROW grants
  • To the extent transferrable under applicable law, all interests of Seller in and to easements, water rights and water permits related to the Plant
  • To the extent assignable under applicable law, the Assigned Contracts
  • To the extent assignable or transferrable under applicable law, all rights and interests of Seller in and to all Permits related to the Purchased Assets and/or operation of the Business
  • To the extent assignable or transferrable under applicable law, the Intellectual Property license granted by Cobra Thermosolar Plants, Inc. to Tonopah Solar Energy, LLC in Section 37.3 of the Contract for the Engineering, Procurement and Construction of the 110MW Nominal Capacity Thermosolar Electrical Generation Facility in Tonopah, Nevada, U.S.A, dated as of September 14, 2011
  • The domain name registration for crescentdunessolar.com
  • All right, title and interest of Seller in and to the Plant
  • All Inventory
  • All rights and interests of Seller in and to the Third Party Prepayment and Deposit Amounts, which include the BLM Deposit Amount ($13,192,019.00 as of Agreement Date), the BLM Prepayment Amount ($30,503.00 as of Agreement Date), the Sierra Deposit ($158,000 as of Agreement Date), and the BLM 2026 Rent and Fees
  • Subject to certain restrictions, copies of documents, manuals, and records in hand of Seller as are reasonably necessary for the continued use, operation, and maintenance of the Plant and operation of the Business following the Closing (Books and Records)
  • All Tangible Personal Property that is located at the Plant as of the Closing
• The Purchased Assets constitute property of the Debtor's estate and title thereto is vested in the Debtor's estate within the meaning of section 541 of the Bankruptcy Code
• The Purchased Assets are being sold on an "as-is, where-is" basis, without any representations or warranties (express or implied), including implied warranties of fitness for any particular purpose or merchantability

Stalking Horse Bid

• Purchase price comprised of:
  • Cash in the amount of $7,000,000 (the "Cash Payment")
  • Assumption of the Assumed Liabilities
• The Cash Payment is the only cash consideration to be provided by Purchaser for the Purchased Assets, inclusive of any Cure Costs, and under no circumstance shall the consideration from Purchaser for the Transactions exceed the Purchase Price
• The Purchaser has been designated by Seller as the Stalking Horse Bidder
• The Purchaser is the designated Successful Bidder, and the Purchase Agreement is designated the Successful Bid for the Purchased Assets in accordance with the Bidding Procedures Order

Assumed Liabilities

• Purchaser shall assume and agree to pay, perform and discharge when due the following Liabilities:
  • All Liabilities and obligations of Seller under the Assigned Contracts arising from and after the Closing Date
  • Any and all Liabilities arising out of the conduct of the Business from and after the Closing Date, including surety bond and all other obligations under the BLM ROWs and any Post-Closing Permit
  • 50% of all Transfer Taxes

Excluded Liabilities

• Other than the Assumed Liabilities, Purchaser shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Seller (the "Excluded Liabilities"), including:
  • All Cure Costs
  • 50% of all Transfer Taxes
  • All Liabilities of Seller for the costs and expenses, including attorneys' fees, incurred by Seller in connection with obtaining the approvals listed on Schedule 7.10(a)

Bid Protections

• Break-Up Fee: None
• Expense Reimbursement: Up to $175,000.00 as an administrative expense under section 503(b) of the Bankruptcy Code, subject to Court approval

Good Faith Deposit

• Upon execution of the Agreement, Purchaser delivered to Synovus Bank, as escrow agent, a deposit in the amount of $700,000 (10% of the cash purchase price)
• The Deposit is held in a segregated escrow account and invested in a manner mutually agreed upon by the Parties
• If the Closing occurs, the Deposit shall be released to Seller and credited toward the purchase price

Auction Details

• The Auction scheduled for March 4, 2026 was cancelled, as reflected in the Successful Bidder Notice filed on March 2, 2026; the Purchaser was designated the Successful Bidder without an auction
• If an Auction is conducted and Purchaser is not the prevailing party at the conclusion of such Auction but is the next highest bidder at the Auction, Purchaser shall be required to serve as a back-up bidder (the "Backup Bidder")
• If Purchaser is the Backup Bidder, Purchaser's bid to consummate the Transactions on the terms and conditions set forth in the Agreement shall remain open and irrevocable until the earlier of (i) consummation of a sale to the Successful Bidder, and (ii) Seller's release of Purchaser from the requirement to serve as a Backup Bidder
• If the Successful Bidder fails to consummate its acquisition of the Purchased Assets as a result of a breach or failure to perform on the part of such Successful Bidder, the Backup Bidder will be deemed to have the new prevailing bid
• On March 2, 2026, the Debtor filed with the Court and published on the case website the Successful Bidder Notice. Service of the Successful Bidder Notice was appropriate and reasonably calculated to provide all interested parties with timely and proper notice of the cancellation of the Auction and the identity of the Successful Bidder

Assumption and Assignment

• The Assumption and Assignment Notice was filed on February 11, 2026, and served on all parties required to receive such notice, as reflected in the affidavit of service filed on February 24, 2026, and identified the Counterparties, the Potentially Assigned Agreements, and the related Cure Amounts
• The service of the Assumption and Assignment Notice was good, sufficient, and appropriate under the circumstances, in full compliance with the Bidding Procedures Order, and no further notice need be provided in respect of the Debtor's assumption and assignment to the Purchaser of the Potentially Assigned Agreements
• All Counterparties to the Potentially Assigned Agreements have had an adequate opportunity to object to the potential assumption and assignment of the Contracts and the Cure Costs (including objections related to the adequate assurance of future performance and objections based on whether applicable law excuses such Counterparty from accepting performance by, or rendering performance to, the Purchaser for purposes of section 365(c)(1) of the Bankruptcy Code)
• The Debtor has demonstrated that it is an exercise of its sound business judgment to assume and assign the Assigned Contracts to the Purchaser in connection with the consummation of the Transaction and that the assumption and assignment of the Assigned Contracts to the Purchaser is in the best interests of the Debtor, its estate, its creditors, and other parties in interest
• The Assigned Contracts being assigned to the Purchaser are an integral part of the Purchased Assets being purchased by the Purchaser, and accordingly, such assumption, assignment and cure of any defaults under the Assigned Contracts are reasonable and enhance the value of the Debtor's estate
• Any counterparty to an Assigned Contract that has not filed with the Court an objection to such assumption and assignment in accordance with the terms of the Motion is deemed to have consented to such assumption and assignment
• The Switch PPA (Power Confirmation dated May 30, 2025, with Switched On, LLC) shall not be an Assigned Contract unless both the Tenaska Management Agreement and the Tawny Point Consulting Agreement are also concurrently assigned to Purchaser
• To the extent necessary or required by applicable law, the Debtor has or will have as of the Closing: (a) cured, or provided adequate assurance of cure, of any default existing prior to the Closing with respect to the Assigned Contracts, within the meaning of sections 365(b)(1)(A) and 365(f)(2)(A) of the Bankruptcy Code, and (b) provided compensation, or adequate assurance of compensation, to any party for any actual pecuniary loss to such party resulting from such default, within the meaning of section 365(b)(1)(B) of the Bankruptcy Code
• The amounts set forth on Exhibit 2 (or any supplemental Assumption and Assignment Notice served in accordance with the Assumption and Assignment Procedures or any order of the Court) are the sole amounts necessary under sections 365(b)(1)(A) and 365(f)(3)(A) of the Bankruptcy Code to cure all such monetary defaults and pay all actual pecuniary losses under the Assigned Contracts
• The promise of the Purchaser to perform the obligations first arising under the Assigned Contracts after their assumption and assignment to the Purchaser constitutes adequate assurance of future performance within the meaning of sections 365(b)(1)(C) and 365(f)(2)(B) of the Bankruptcy Code to the extent that any such assurance is required and not waived by the counterparties to such Assigned Contracts
• Seller shall be solely responsible for, and shall promptly pay or cause to be paid, all Cure Costs, including any Cure Costs determined or increased by the Bankruptcy Court after Closing, together with any transfer, assignment, or consent fees and all other out-of-pocket costs of obtaining any necessary third-party consents to assignment
• As a condition to Seller's obligation to seek assumption and assignment of any Assigned Contract, Purchaser shall provide to Seller, sufficiently in advance of the Sale Hearing, such financial and other information regarding Purchaser and its proposed performance as is reasonably necessary to demonstrate "adequate assurance of future performance" within the meaning of section 365(b)(1) and (f)(2) of the Bankruptcy Code
• Purchaser shall cooperate in good faith with Seller to prepare, file, and serve any required notices on counterparties and to resolve objections relating to Cure Costs and adequate assurance; provided, that Purchaser shall have no obligation to pay any Cure Costs, consent fees, or other amounts to counterparties, and Purchaser shall advance (or escrow at Seller's request) disputed or estimated Cure Costs as a condition to assumption and assignment; provided that any such advanced funds shall be credited to the Purchase Price

Sale Free and Clear & Successor Liability

• The transfer of the Purchased Assets to the Purchaser will be a legal, valid, and effective transfer of the Purchased Assets, and will vest the Purchaser with all right, title, and interest of the Debtor in the Purchased Assets free and clear of all claims, liens, liabilities, interests, rights, and liens relating to, accruing, or arising any time prior to the Closing Date
• Those holders of Claims who did not object or who withdrew their objections to the Motion are deemed to have consented to the Transaction pursuant to section 363(f)(2) of the Bankruptcy Code
• Those holders of Claims who did object fall within one or more of the other subsections of section 363(f) of the Bankruptcy Code
• The Debtor, to the extent permitted by applicable law, may transfer the Purchased Assets free and clear of all Claims, including rights or claims based on any successor or transferee liability, because one or more of the standards set forth in section 363(f)(1)-(5) of the Bankruptcy Code has been satisfied
• The Purchaser would not have entered into the Purchase Agreement and would not consummate the transactions contemplated thereby if (a) the transfer of the Purchased Assets were not free and clear of all Claims, or (b) the Purchaser would, or in the future could, be liable for or subject to any such Claims
• Not transferring the Purchased Assets free and clear of all Claims would adversely impact the Debtor's efforts to maximize the value of its estate, and the transfer of the Purchased Assets other than pursuant to a transfer that is free and clear of all Claims would be of substantially less benefit to the Debtor's estate
• Upon Closing, all of the Debtor's right, title and interest in and to, and possession of, the Purchased Assets shall be immediately vested in the Purchaser pursuant to sections 105(a), 363(b), and 363(f) of the Bankruptcy Code free and clear of any and all Claims
• Such transfer will constitute a legal, valid, binding and effective transfer of, and will vest the Purchaser with good and marketable title to the Purchased Assets
• Pursuant to sections 105(a) and 363(f) of the Bankruptcy Code, the Purchased Assets shall be sold free and clear of all Claims, with all such Claims to attach to the proceeds of the Transaction to be received by the Debtor with the same validity, force, priority and effect which they now have as against the Purchased Assets, subject to any claims and defenses the Debtor may possess with respect thereto; provided, however, that setoff rights of the Debtor will be extinguished to the extent there is no longer mutuality after the consummation of the Transaction
• Neither the Purchaser nor any of its affiliates are a mere continuation of the Debtor or its estate, there is no continuity or common identity between the Purchaser, the Debtor, or any of their respective affiliates, and there is no continuity of enterprise between the Purchaser, the Debtor, or any of their respective affiliates
• Neither the Purchaser nor any of its affiliates are holding themselves out to the public as a continuation of the Debtor
• Neither the Purchaser nor any of its affiliates are a successor to the Debtor or its estate and none of the transactions contemplated by the Purchase Agreement amounts to a consolidation, merger, or de facto merger of the Purchaser or any of its affiliates with or into the Debtor
• None of the Purchaser, its affiliates, the present or contemplated members or shareholders of the Purchaser and its affiliates, or the Purchased Assets will have any liability whatsoever with respect to, or be required to satisfy in any manner, whether at law or equity, or by payment, setoff, or otherwise, directly or indirectly, any Claims relating to any U.S. federal, state or local income tax liabilities that the Debtor may incur in connection with consummation of the transactions contemplated by the Purchase Agreement or that the Debtor has otherwise incurred prior to the consummation of the transactions contemplated by the Purchase Agreement
• Upon the Closing, except as provided in the Purchase Agreement, the entry of the Sale Order and the approval of the terms of the Purchase Agreement means that the Purchaser (and any of its affiliates, successors, or assigns), as a result of any action taken in connection with the Purchase Agreement, the consummation of the transactions contemplated thereby, or the transfer or operation of the Purchased Assets, will not be deemed to: (a) be a legal successor to the Debtor, or otherwise be deemed a successor to the Debtor; (b) have, de facto, or otherwise, merged or consolidated with or into the Debtor; or (c) be an alter ego or a mere continuation or substantial continuation of the Debtor or the enterprise of the Debtor
• Except as otherwise provided in the Purchase Agreement and the Sale Order, neither the Purchaser nor any of its affiliates shall have any responsibility for any (a) liability or other obligation of the Debtor related to the Purchased Assets or (b) Claims against the Debtor or any of its predecessors or affiliates
• By virtue of the Purchaser's purchase of the Purchased Assets, neither the Purchaser nor any of its affiliates shall have any liability whatsoever with respect to the Debtor's (or their predecessors' or affiliates') respective businesses or operations or the Debtor's (or its predecessors' or affiliates') obligations based on any theory of successor or vicarious liability of any kind or character, or based upon any theory of antitrust, environmental (including CERCLA), successor or transferee liability, de facto merger or substantial continuity, whether known or unknown as of the Closing, now existing or hereafter arising, asserted or unasserted, fixed or contingent, liquidated or unliquidated, any settlement or injunction or any liabilities on account of any taxes arising, accruing or payable under, out of, in connection with, or in any way relating to the operation of the Purchased Assets prior to the Closing Date
• The Purchaser would not have acquired the Purchased Assets but for the protections against Successor or Transferee Liability
• None of the Purchaser or its affiliates, successors, assigns, equity holders, employees or professionals will have or incur any liability to, or be subject to any action by the Debtor or its estate, predecessors, successors, or assigns, arising out of the negotiation, investigation, preparation, execution, delivery of the Purchase Agreement and the entry into and consummation of the sale of the Purchased Assets, except as expressly provided in the Purchase Agreement and the Sale Order

Post-Closing Arrangements

• The Parties agree to collaborate in good faith during the Post-Closing Permits Transfer Period to complete the transfer, assignment, or procurement of any Post-Closing Permits; provided, however, Purchaser shall have the primary responsibility for securing the Post-Closing Permits at its sole cost and expense, including engaging with the relevant Governmental Authorities and fulfilling any additional administrative or compliance requirements
• Purchaser shall ensure that all operational activities comply with applicable laws and regulations during the Post-Closing Permits Transfer Period
• The inability to obtain or transfer any Post-Closing Permit prior to the Closing shall not: (i) delay or invalidate the Closing; (ii) constitute a breach of the Agreement by Seller; or (iii) impose any additional Liability or penalty on Seller
• Any delays in the transfer or procurement of Post-Closing Permits shall be managed in accordance with the cooperation obligations and shall not affect Purchaser's obligation to consummate the Transaction
• The Parties agree to collaborate in good faith for a period of up to two (2) months following the Closing Date to complete the transfer or procurement of the Post-Closing Permits (the "Post-Closing Permits Transfer Period")
• After this period, Seller shall have no further obligation with respect to such permits, except as expressly required by law
• Purchaser acknowledges that, following the Closing Date, Seller may maintain, in its discretion, originals or copies of all Books and Records, including as Seller determines may be necessary for ongoing litigation
• Purchaser agrees to maintain all Books and Records as Highly Confidential under the Confidentiality Agreement, and not to disclose or publish any Books and Records other than as necessary to employees and advisors of Purchaser who need access to such Books and Records to maintain operations of the Plant
• If Purchaser receives a subpoena or other legal process requesting disclosure of any Books and Records, Purchaser shall notify Seller of such request as required by the Confidentiality Agreement and not disclose any Books and Records until Seller consents to such disclosure in writing, declines to seek a protective order as permitted by the Confidentiality Agreement, or a court enters a final order directing disclosure over Seller's objection

Good Faith Purchaser

• The sale process engaged in by the Debtor and the Purchaser, including the negotiation of the Purchase Agreement, was at arm's-length, non-collusive, in good faith, and substantively and procedurally fair to all parties in interest
• Neither the Debtor nor the Purchaser has engaged in any conduct that would cause or permit the Purchase Agreement or the Transaction to be avoided, or costs or damages to be imposed, under section 363(n) of the Bankruptcy Code
• The Debtor and the Purchaser each has complied, in good faith in all respects with the Bidding Procedures Order and the Bidding Procedures
• The Debtor and its management, board of managers, agents, advisors, and representatives, and the Purchaser and its respective employees, agents, advisors and representatives, each actively participated in the bidding process and acted in good faith and without collusion or fraud of any kind
• The Purchaser subjected its bid to competitive bidding in accordance with the Bidding Procedures and was designated the Successful Bidder for the Purchased Assets in accordance with the Bidding Procedures and the Bidding Procedures Order
• The Purchaser is a good faith buyer within the meaning of section 363(m) of the Bankruptcy Code, and is therefore entitled to the full protection of that provision in respect of the Transaction, each term of the Purchase Agreement (and any ancillary documents executed in connection therewith) and each term of the Sale Order, and otherwise has proceeded in good faith in all respects in connection with this proceeding
• Neither the Debtor nor the Purchaser has engaged in any conduct that would prevent the application of section 363(m) of the Bankruptcy Code
• The Debtor was free to deal with any other party interested in buying or selling some or all of the Assets on behalf of the Debtor's estate
• The protections afforded by Bankruptcy Code section 363(m) are integral to the Transaction and the Purchaser would not consummate the Transaction without such protections
• The Purchase Agreement has been negotiated and executed, and the transactions contemplated in such Purchase Agreement are and have been undertaken, by the Debtor, the Purchaser and their respective representatives at arm's-length, without collusion and in "good faith," as such term is defined in section 363(m) of the Bankruptcy Code
• Accordingly, the reversal or modification on appeal of the authorization provided herein to consummate the Transaction shall not affect the validity of the Transaction or any term of the Purchase Agreement, and shall not permit the unwinding of the Transaction
• The Purchaser is a good faith purchaser within the meaning of section 363(m) of the Bankruptcy Code and, as such, is entitled to the full protections under section 363(m) of the Bankruptcy Code
• Neither the Debtor nor the Purchaser has engaged in any conduct that would cause or permit the Purchase Agreement or the transactions contemplated thereby to be avoided, or for costs or damages to be imposed, under section 363(n) of the Bankruptcy Code
• The consideration provided by the Purchaser for the Purchased Assets under the Purchase Agreement is fair and reasonable, and the Transaction may not be avoided under section 363(n) of the Bankruptcy Code

No Fraudulent Transfer

• The consideration provided by the Purchaser for the Assets pursuant to the Purchase Agreement (a) is fair and reasonable, (b) is the highest and best offer for the Purchased Assets, (c) will provide a greater recovery for the Debtor's creditors and estate than would be provided by any other available alternative, and (d) constitutes reasonably equivalent value and fair consideration under the Bankruptcy Code and under the laws of the United States and each state, territory, possession, and the District of Columbia
• The Purchase Agreement was not entered into, and neither the Debtor nor the Purchaser has entered into the Purchase Agreement or propose to consummate the Transaction, for the purpose of (a) escaping liability for the Debtor's debts or (b) hindering, delaying or defrauding the Debtor's present or future creditors, for the purpose of statutory and common law fraudulent conveyance and fraudulent transfer claims whether under the Bankruptcy Code or under the laws of the United States, any state, territory, possession thereof or the District of Columbia or any other applicable jurisdiction with laws substantially similar to the foregoing
• The sale of the Purchased Assets to the Purchaser under the Purchase Agreement constitutes a transfer for reasonably equivalent value and fair consideration under the Bankruptcy Code and laws of all applicable jurisdictions, including the laws of each jurisdiction in which the Assets are located, and the sale of the Purchased Assets to the Purchaser may not be avoided under any statutory or common law fraudulent conveyance and fraudulent transfer theories whether under the Bankruptcy Code or under the laws of the United States, any state, territory, possession thereof or the District of Columbia or any other applicable jurisdiction with laws substantially similar to the foregoing
• The form and total consideration to be realized by the Debtor under the Purchase Agreement constitutes fair value, fair, full, and adequate consideration, reasonably equivalent value, and reasonable market value for the Purchased Assets

Retained Causes of Action

• Nothing in the Sale Order or related sale documents shall be interpreted to release or exculpate the Debtor or its successors or assigns from any reclamation, decommissioning, site clearance, and plugging and abandonment, or other operational requirement under applicable Federal law (collectively, "Decommissioning Obligations") with respect to the Federal Interests or to address or otherwise affect any Decommissioning Obligations and financial assurance requirements under the Federal Interests, as determined by the United States, that must be met by the Debtor or its successors and assigns on the Federal Interests going forward
• Nothing in the Sale Order or related sale documents shall nullify the United States' right to assert against the Debtor or its estate: any (a) Decommissioning Obligations with respect to the Federal Leases; and/or (b) Decommissioning Obligations with respect to the Federal Interests that is nondischargeable under applicable law; provided, however, that upon the effective date of any assignment(s) of any Federal Interest that are consented to by the Bureau of Land Management in accordance with applicable non-bankruptcy law, the assignee will be solely responsible for the performance of all assigned obligations, including Decommissioning Obligations
• For avoidance of doubt, nothing in the Purchase Agreement or the Sale Order shall release, enjoin, adjudicate, impair, or limit any claims, rights, investigations, causes of action or defenses (including counterclaims and rights of recoupment or setoff) of CMB Infrastructure Investment Group IX, LP, CMB Infrastructure Investment Group XI, LP, and CMB Export, LLC (the "CMB Claims") against the Debtor or any third-party (other than Purchaser, its affiliates, and assigns), including any other defendant in the CMB Litigation
• For further avoidance of doubt, and subject only to the provisions regarding the Federal Interests, BLM and FERC, the foregoing does not limit the free and clear nature of the Sale under section 363(f) of the Bankruptcy Code, and the transfer of the Purchased Assets to the Purchaser will be free and clear of the CMB Claims, any liens, claims, or interests of CMB and its affiliates, as well as the liens, claims, and interests of any other person or entity

Key Dates

• Petition Date: January 21, 2026
• Assumption and Assignment Notice Filed: February 11, 2026
• Auction and Sale Notice Given: February 11, 2026
• Stalking Horse Supplement Filed: February 20, 2026
• Stalking Horse Notice Filed: February 20, 2026
• Auction and Sale Notice Service Affidavit Filed: February 24, 2026
• Assumption and Assignment Notice Service Affidavit Filed: February 24, 2026
• Stalking Horse Notice and Supplement Service Affidavit Filed: February 26, 2026
• Successful Bidder Notice Filed: March 2, 2026
• Successful Bidder Notice Service Affidavit Filed: March 4, 2026
• Sale Hearing: March 19, 2026
• Closing: No later than two (2) Business Days after the date on which the full satisfaction or due waiver of all of the closing conditions occurs
• Long Stop Date: June 19, 2026 (with automatic extension to 180 days from the date that the Sale Order is entered if FERC Approval has not been obtained by June 19, 2026, and FERC Approval is the only outstanding condition to closing)