* Electronic Copy * MS Public Service Commission * 9/24/2018 * MS Public Service Commission * Electronic

Transcription

1 EXHIBIT A.1 TO TESTIMONY OF MR. JOHAN VANHEE ON BEHALF OF MS SOLAR 2, LLC CERTIFICATE OF FORMATION OF MS SOLAR 2, LLC Certificate of Formation of MS Solar 2, LLC State of Delaware secretary or state Division of Cog:orations Delivered 02:51 km 01/26/2015 FILED 02:49 PM 01/26/ SRV F1TÆ 1. The name of this Delaware limited liability company is: MS Solar 2, LLC 2. The name and address of the registered agent of the Company is: Corporate Creations Network lnc Silverside Road Rodncy Building #104 Wilmington DE The Company will be a manager-managed company. 4. The profits and losses of the Company shall be allocated to the mcmhers in proportion to their percentage interest in the Company, unless otherwise provided in the Company's limited liability company agreement. Unless otherwise provided in the Company's limited liability company agreement, there shall not be any distribution of profits unless each separate distribution is approved by the affirmative vote of members who own more than 50% of the voting interest in the Company. The voting members shall have complete discretion on when and if to approve any distribution of profits, unless otherwise provided in the Company's limited liability company agreement. 5. No member shall have the right to assign the member's interest in the Company without the written agreement of all the members, unless otherwise provided in the Company's limited liability company agreement. Unless otherwise provided in the Company's limited liability company agreement, if all the members do not approve the assignment, the assignee shall have no right to become a member, to participate in the management of the Company or to exercise any other rights or powers of a member. The assignee shall merely be entitled to oceive the share of profits and other distributions and the allocation of income, gain, loss deduction, credit or similar item to which the assignor was entitled, to the extent assigned. The undersigned authorized January 26, person has executed this Certificate of Formation on AUTHORIZED PERSON: Gina Mulligan, Special Secretary

2 EXHIBIT A.2 TO TESTIMONY OF MR. JOHAN VANHEE ON BEHALF OF MS SOLAR 2, LLC MS SOLAR 2, LLC GOOD STANDING CERTIFICATE FOR THE STATE OF MISSISSIPPI DELBERT HOSEMANN Secretary of State Office of the Secretary of State Jackson, Mississippi Certificate of Good Standing I, C. DELBERT HOSEMANN, JR., Secretary of State of the State of Mississippi, and as such, the legal custodian of the records as required by The Mississippi Registration of ForeignLimitedLiabilitiesCompanyAct to be filed in my office do hereby certify: MS SOLAR 2, LLC Registered the 26th day of March A Delaware LIMITED LIABILITY COMPANY has filed the necessary documents in this office and has obtained a certificate of registration to do business in this state, under the provisions of The Mississippi Registration of Foreign LimitedLiability Companies Act as shown by the records in this office. I furthercertify that said Limited Liability Company has filed in this office an appointment of registration for service of process, with written acceptance endorsed thereon, and/or power of attorney, designatingits agent and/or attorney for service of process in this State as: CorporateCreations Network Inc. 232 Market Street #1600 Flowood,MS I furthercertify that said Limited Liability Company has paid the fees for filing the above papers required by law as shown by the records of this office, and that said Limited LiabilityCompany is in good standing to do business in Mississippi at this time. Given under my hand and seal of office the 26th day of March,2015 C. DELBERTHOSEMA.NN,)R. Certificate Number: CN Verify this certificate online at corpconv/verifycertificate.aspx

3 EXHIBIT A 3 TO TESTIMONY OF MR. JOHAN VANHEE ON BEHALF OF MS SOLAR 2, LLC MS SOLAR 2, LLC GOOD STANDING CERTIFICATE FOR THE STATE OF DELAWARE PAGE 1 Ghe first State I, JEFFRZY W. BULLOCK, SECRETARY OF STATZ OF TEZ STATE OF DELAWARE, DO HEREBY CERTIFY "NS SOLAR 2, LLC" IS DULY FORMED UNDER THE LAWS OF THE STATE OF DELANARE AND IS IN GOOD STANDING AND EAS A LEGAL EXISTENCZ SO FAR AS THZ RZCORDS OF THIS OFFICZ SBOW, As GF TRE TWENTY-SIXTH DAY OF MARCH, A.D AND I DO EEREBY FURTHER CERTIFY THAT THE SAID "MS SOLAR 2, LLC" NAS FORMED ON TRE TWENTY-SIXTE DAY OF JANUARY, A.D AND I DO BEREBY FURTHER CERTIFY THAT THE ANNUAL TAXES HAVE NOT BEEN ASSESSZD TO DATE A offrey W. Bullock, Secretary of State TION: DATE: rou may verity tms certificate online at corp.delaware.gov/authver.shtml

4 EXHIBIT A 4 TO TESTIMONY OF MR. JOHAN VANHEE ON BEHALF OF MS SOLAR 2, LLC MS SOLAR 2, LLC OPERATING AGREEMENT LIMITED LIABILITY COMPANY AGREEMENT OF MS SOLAR 2, LLC This Limited Liability Company Agreement (the "Agreement') of MS Solar 2, LLC, a Delaware limited liability company (the "Company"), is made and entered into as of April 21st 2015 by Origis DevCo USA, Inc., a Delaware corporation, the Company's sole member (the "Sole Member"). AGREEMENT Section 1. Certificate of Formation; Name. The Company was organized as a Delaware limited liability company by the filing of its Certificate of Formation in the office of the Secretary of State of the State of Delaware on January 26, 2015, under and pursuant to the Delaware Limited Liability Company Act (as amended from time to time, the "Act'). The name of the limited liability company formed is MS Solar 2, LLC, and all Company business shall be conducted in such name unless otherwise determined by the Manager(s). Section 2. Purpose. The purpose to be conducted or promoted by the Company is to engage exclusively in the following activities: (a) to construct, operate, maintain and finance solar photovoltaic electric generation facilities located in Mississippi. (b) to take and perform all actions necessary or appropriate to perform its obligations under certain loan and related documents that may be required by the financial institution or lender providing financing with respect to the activities described under Section 2 (a) of this Agreement. (c) to engage in such activities as are incidental to the foregoing or otherwise contemplated by this Agreement. Section 3. Registered Agent. The name of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporate Creations Network Inc. Section 4. Membership. Section 4.1 No Liability of Members. No member of the Company shall be personally liable for the expenses, debts, obligations or liabilities of the Company, or for claims made against the Company.

5 2013, * Electronic Copy * MS Public Service Commission * 9/24/2018 * MS Public Service Commission * Electronic Section 4.2 Membership Units. (a) The Company shall issue to every member one or more certificates representing the number of units of membership interest in the Company ("Units") held by such member. Unit certificates of the Company (each, a "Unit Certificate") shall be in such form as the Manager may from time to time determine. Each Unit Certificate shall be signed by the Manager. The Company hereby irrevocably elects that all Units represented by the Unit Certificate shall constitute a "security" within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdictionthat now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissions on uniform state laws and approved by the American Bar Association on February 14, (b) Each Unit Certificate issued to a member shall have the following legend conspicuously written, printed, typed, or stamped on its face, or upon the reverse with a conspicuous reference to such legend on its face, may bear one or all of the following legends: (i) "MEMBERSHIP INTEREST (UNITS) OF THE COMPANY REPRESENTED BY THIS INSTRUMENT HAS NOT BEEN REGISTERED UNDER ANY SECURITIES LAW AND THE TRANSFERABILITY OF SUCH MEMBERSHIP INTEREST (UNITS) IS RESTRICTED. SUCH MEMBERSHIP INTEREST (UNITS) MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED OR TRANSFERRED, NOR WILL ANY ASSIGNEE, VENDEE, TRANSFEREE OR ENDORSEE THEREOF BE RECOGNIZED AS HAVING ACQUIRED ANY SUCH MEMBERSHIP INTEREST (UNITS) BY THE ISSUER FOR ANY PURPOSES, UNLESS (I) A REGISTRATION UNDER THE SECURITIES ACT OF 1933 (AS AMENDED) WITH RESPECT TO SUCH MEMBERSHIP INTEREST (UNITS) SHALL THEN BE IN EFFECT AND SUCH TRANSFER HAS BEEN QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS, OR (II) SUCH TRANSFER IS EXEMPT FROM SUCH REGISTRATION AND QUALIFICATION REQUIREMENTS. ADDITIONALLY, NO MEMBERSHIP INTEREST (UNITS) REPRESENTED BY THIS INSTRUMENT MAY BE SOLD, ASSIGNED, PLEDGED, GIFTED, BEQUEATHED OR OTHERWISE TRANSFERRED EXCEPT AS PROVIDED IN THE LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY DATED AS OF JUNE COPIES OF WHICH ARE ON FILE IN THE PRINCIPAL OFFICE OF THE _, COMPANY AND WILL BE FURNISHED UPON REQUEST AND WITHOUT CHARGE TO ANY HOLDER." (ii) Any other legend required by the securities laws of any state to the extent such laws are applicable to the Units represented by the certificate so legended. (c) In case of loss or destruction of a Unit Certificate, no new Unit Certificate shall be issued in lieu thereof except upon satisfactory proof to the Company of such loss or destruction, and upon the giving to the Company of satisfactory security against loss by bond or otherwise. Any such new Unit Certificate shall be plainly marked "Duplicate" upon its face.

6 Section 5. Management. The business and affairs of the Company shall be managed by its manager(s) (the "Managers") who are, and will be, appointed by, and serve at, the sole discretion of the member(s). The initial Manager of the Company shall be the Sole Member. Except for situations in which the approval of the member(s) is expressly required by this Agreement or by non-waivable provisions of applicable law (including the Act), the Manager(s), so long as it or they continue to serve, shall have the complete authority, power and discretion to manage and control the management and operations of the Company. In the event that the Company has more than one Manager, all actions and decisions of the Managers shall require the approval of a majority of the Managers. The Manager(s) may elect officers from time to time who shall have the authority and duties to be determined by the Manager(s), including, without limitation, the titles of Chairman, President, Vice President, Treasurer and Secretary, to act on behalf of the Company, with such power and authority with respect to the Company as set forth below. Any action taken by an officer designated by the Manager(s) shall constitute the act of and serve to bind the Company. Any officer elected by the Manager(s) may be terminated at any time, with or without cause. Section 5.1 President. The President shall, subject to the control of the Manager(s), have general supervision, direction and control of the business and officers of the Company. He or she shall preside at all meetings of the Manager(s) and all meetings of the member(s). He or she shall have the general powers and duties of management usually vested in the chief executive officer of entities organized under the laws of the State of Delaware, and shall have such other powers and duties as may be prescribed by the Manager(s). The President shall execute bonds, mortgages and other contracts which the Manager(s) has authorized to be executed, except where required or permitted by law to be otherwise signed and executed or except where the signing and execution thereof shall be expressly delegated by the Manager(s) to some other officer or agent of the Company. Section 6. Reliance by Third Parties. Persons dealing with the Company are entitled to rely conclusively upon any power and authority of the Manager(s) and upon the power and authority of any officer as delegated to such officer by the Manager(s), except as otherwise provided in this Agreement. Section 7. Separateness. As long as any obligations under certain loan and related documents according to Section 2 (b) of this Agreement remain outstanding, Company shall at all times adhere to the separateness provisions attached hereto as Exhibit A ("Separateness Provisions"). Section 8. Internal Affairs of the Company. (a) The Company is a domestic entity with a single owner and is to be disregarded as a separate entity for U.S. Federal income tax purposes as provided in Treasury Regulation The Company's books of account shall be maintained on a basis consistent with such treatment and on the same basis utilized in preparing the Sole Member's U.S. federal income tax return (or sole member of the Sole Member if the Sole Member is disregarded as a separate entity for U.S. Federal income tax purposes). The Manager(s) shall take all reasonable actions, including the amendment of this Agreement and the execution of other documents, as may reasonably be required in order for the Company to be disregarded as a

7 separate entity for U.S. federal income tax purposes. The member(s) shall maintain the records of the Company for three years following the termination of the Company. (b) The fiscal year of the Company shall be the calendar year, except for the short taxable years in the years of the Company's formation and termination and as otherwise required by the Internal Revenue Code of 1986, as amended. Section 9. Capital and Contributions. The capital contributions of the member(s) shall be reflected on the books and records of the Company. Section 10. Distributions. For any fiscal year of the Company, distributions in cash or in kind shall be made at such times and in such amounts as determined by the member(s). No member shall be entitled to a return of his or her capital contribution Section 11. Bank Accounts. The funds of the Company shall be deposited in one or more checking, savings and/or other accounts with any bank or banks to be determined by the Manager(s) or a duly elected officer (each, a "Bank"). The Manager(s), or the duly elected officer, is authorized to: (i) sign checks on behalf of the Company; (ii) endorse checks, drafts and other evidences of indebtedness made payable to the order of the Company; (iii) execute and deliver to each Bank any signature card containing resolutions of the member(s) which do not, in substance, differ materially from the provisions set forth herein; and (iv) place a copy of each signature card in the books of the Company. Section 12. Dissolution. The Company shall dissolve and its affairs shall be wound up upon the first to occur of the following: (a) the written consent of the member(s) to dissolve the Company, or (b) upon any act or event causing the dissolution of the Company under the Act, unless, if permitted by the Act, the Company is continued in accordance with the Act. Section 13. Corporate Filings. The Manager(s) or the duly elected officers shall cause the Company to obtain any licenses, qualifications, authorizations and permits as necessary or desirable in any state for the Company's business, and shall fulfill such legal requirements as are applicable to the Company or its business or to complete the organization of the Company including, without limitation, an Application for Employer Identification Number to be filed with the Internal Revenue Service. Section 14. Amendment. This Agreement may be amended by the written consent of the member(s). Section 15. Indemnification. (a) The Company shall indemnify and hold harmless the member(s) and its affiliates and their respective stockholders, members, managers, directors, officers, employees and agents (each, an "Indemmfied Party") from and against any loss, expense, damage or injury suffered or sustained by them, by reason of any acts, omissions or alleged acts or omissions arising out of their activities on behalf of the Company or in furtherance of the interests of the Company, including any judgment,award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding or claim if the acts, omissions or alleged acts or omissions upon which such actual or

8 threatened action, proceeding or claims are based were not a result of fraud or willful misconduct by such Indemnified Party. Any indemnification pursuant to this Section 15 shall only be from the assets of the Company. (b) Expenses (including attorneys' fees) incurred by an Indemnified Party in a civil or criminal action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding; provided that if an Indemnified Party is advanced such expenses and it is later determined that such Indemnified Party was not entitled to indemnification with respect to such action, suit or proceeding, then such Indemnified Party shall reimburse the Company for such advances. (c) No amendment, modification or deletion of this Section 15 shall apply to or have any effect on the right of any Indemnified Party to indemnification for or with respect to any acts or omissions of such Indemnified Party occurring prior to such amendment, modification or deletion. Section 16. Exculpation. No Indemnified Party shall be liable, responsible or accountable in damages or otherwise to the Company or any member of the Company for any loss incurred as a result of any act or failure to act by such Indemnified Party on behalf of the Company unless such loss is finally determined by a court of competent jurisdictionto have resulted solely from such person's fraud or willful misconduct. No amendment, modification or deletion of this Section 16 shall apply to or have any effect on the liability or alleged liability of any Indemnified Party for or with respect to any acts or omissions of such director occurring prior to such amendment, modification or deletion. Section 17. Liability. Neither the Manager(s), nor the member(s) shall be liable for the repayment, satisfaction or discharge of any Company liabilities. Section 18. Expenses. The Company shall pay for all expenses incurred in connection with the operation of the Company's business. The Sole Member and the officers, employees and agents of the Company shall be entitled to receive out of Company funds reimbursement of all Company expenses expended by such persons. Section 19. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws. [Signature Page Follows]

9 IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed and deliveredthis Agreement as of the date first written above. SOLE MEMBER Origis DevCo USA, Inc. By: Name: SamirVerstyn Title: Secretary AITACHMENTS TO TESTIMONY OF MR. JOHAN VANHEE

10 EXHIBIT A TO MS SOLAR 2, LLC, OPERATING AGREEMENT Separateness Provisions The Company shall: (i) maintain its books, records, resolutions and agreements as official records and separate from each other person; (ii) maintain its bank accounts separate from each other person; (iii) not commingle its assets with those of any other person and hold all of its assets in its own name; (iv) conduct its own business in its own name; (v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of each other person and not have its assets listed on the financial statements of another person, except as required by GAAP; formalities; (vi) (vii) pay its own liabilities and expenses only out of its own funds; observe all limited liability company and other organizational (viii) not guarantee or become obligated for the debts of any other person except as expressly permitted by certain loan and related documents according to Section 2 (b) of this Agreement; (ix) not hold out its credit as being available to satisfy the obligations of any other person except as expressly permitted by certain loan and related documents according to Section 2 (b) of this Agreement; (x) not incur any indebtedness other than indebtedness that (A) may be incurred by the Company as permitted by and in accordance with certain loan and related documents according to Section 2 (b) of this Agreement and (B) does not constitute a claim against the Company for any purpose, including without limitation for purposes of commencing an involuntary petition against the Company under the Bankruptcy Code, for so long as the Company's obligations under certain loan and related documents according to Section 2 (b) of this Agreement are outstanding; (xi) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses), and other items of cost and expense shared between the Company and any of its Affiliates, on the basis of actual use to the extent practicable, and to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; (xii) use separate stationery, invoices, and checks bearing its own name (or under any name licensed pursuant to any trademark license or similar agreement); ATTACHMENTSTO TESTIMONY OF MR. JOHAN VANHEE

11 (xiii) not pledge its assets for the benefit of any other person except as expressly permitted by certain loan and related documents according to Section 2 (b) of this Agreement; (xiv) at all times hold itself out to the public as a legal entity separate from Member or any other person; (xv) correct any known or suspected misunderstanding regarding its separate identity; (xvi) not identify itself or hold itself out as a division of any other person; (xvii) file separate tax returns from those of each other person except as may be required by law; (xviii) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other person; and (xix) compensate all employees, consultants and agents from the Company's own funds for services provided to the Company by such employees, consultants and agents, and, to the extent any employee, consultant or agent of the Company is also an employee, consultant or agent of an Affiliate of the Company, allocate the compensation of such employee, consultant or agent between the Company and such Affiliate on a basis which reflects the respective services rendered to the Company and such Affiliate. ATTACHMENTSTO TESTIMONY OF MR. JOHAN VANHEE